FEDERAL COURT OF AUSTRALIA

Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Bruce Highway Caloundra to Sunshine Upgrade Case) [2018] FCA 553

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to s 23 of the Federal Court of Australia Act 1976 (Cth) (Federal Court Act) and s 545(2)(a) of the Fair Work Act 2009 (Cth) (FW Act), until the hearing and determination of this proceeding or further order, the First Respondent is restrained from causing, requesting, advising, encouraging, inciting or howsoever otherwise, any official of the First Respondent to exercise a right pursuant to s 81 of the Work Health and Safety Act 2011 (Qld) (WHS Act) at the Fulton Hogan Seymour Whyte Bruce Highway Upgrade Joint Venture Project (the Project) unless:

(a)    he or she is a permit holder within the meaning of the FW Act; and

(b)    he or she produces that entry permit for inspection when requested to do so by employees, agents or representatives of the occupiers of the Bruce Highway Upgrade – Caloundra Road to Sunshine Motorway Stage 1 site (the Site).

2.    Pursuant to s 23 of the Federal Court Act and s 545(2)(a) of the FW Act, until the hearing and determination of this proceeding or further order, each of the Second to Eighth Respondents are restrained (whether by themselves, their employees or agents or howsoever otherwise) from exercising a right pursuant to s 81 of the WHS Act at the Project unless:

(a)    he or she is a permit holder within the meaning of the FW Act; and

(b)    he or she produces that permit for inspection when requested to do so by employees, agents or representatives of the occupiers of the Site.

3.    Service be effected on the Respondents by service of a copy of this Order on the solicitor on the record for all of the Respondents.

4.    The application be adjourned to a date to be fixed for further hearing in the Federal Court of Australia sitting in Brisbane.

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

REASONS FOR JUDGMENT

COLLIER J:

1    In an originating application filed on 19 April 2018 the Australian Building and Construction Commissioner (ABCC) sought substantive as well as interlocutory relief against the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) and seven individual respondents who are office holders with the CFMMEU. The substantive relief sought by the ABCC is declarations of contravention of the Fair Work Act 2009 (Cth) (FW Act) by the respondents, penalties in respect of those contraventions, injunctive orders restraining the respondents exercising nominated rights at the Fulton Hogan Seymour Whyte Bruce Highway Upgrade Joint Venture Project (the Project) at the Bruce Highway Upgrade – Caloundra Road to Sunshine Motorway 7 Stage 3 site (the Site). In particular, the ABCC seeks a declaration in the following terms:

1.    An order pursuant to s.21 of the Federal Court of Australia Act 1976 and s.563 of the Fair Work Act 2009 (FW Act) declaring that the provisions contained in Division 3 of Part 3-4 FW Act apply if entry to the Fulton Hogan Seymour Whyte Bruce Highway Upgrade Joint Venture Project (the Project) at the Bruce Highway Upgrade – Caloundra Road to Sunshine Motorway 7 Stage 3 site (the Site) is sought by an official of the First Respondent under s 81 of the Work Health and Safety Act 2011 (Qld) (WHS Act).

2    Importantly for the purposes of this judgment, the ABCC also sought interlocutory injunctive relief restraining the CFMMEU from (inter alia) causing any official to exercise a right pursuant to s 81 of the Work Health and Safety Act 2011 (Qld) (WHS Act) at the Project unless that official is a permit holder under the FW Act and produces that entry permit for inspection when requested to by employees or other representatives of the occupiers of the Site. Similar personal restraints are sought by the ABCC in respect of the seven individual respondents who are office holders with the CFMMEU and, I understand, have entered the Site within the past week.

3    When the matter came on for hearing yesterday, appearances were entered by the legal representatives of the ABCC, the respondents and the State Minister for Education and Industrial Relations. The respondents opposed the interlocutory relief sought, and the Minister primarily expressed interest in resolution of the substantive dispute.

4    The decision of the High Court in Australian Broadcasting Corporation v O’Neill [2006] HCA 46; (2006) 227 CLR 57 is authority for the proposition that, in considering whether interlocutory relief should be granted, it is appropriate for the primary Court to give consideration to such factors as:

    whether the applicant has established a prima facie case, namely a sufficient likelihood of success to justify the preservation of the status quo pending the trial;

    whether damages are an adequate remedy; and

    where lies the balance of convenience.

5    Importantly, the respondents conceded that the applicants had established a prima facie case in respect of the substantive proceedings. No arguments of substance were advanced by the parties in respect of the adequacy or otherwise of damages. (I note further that, pursuant to s 117 of the Building and Construction Industry (Improving Productivity) Act 2016 (Cth), if the ABCC or any other inspector is an applicant in court proceedings under, inter alia, the FW Act, the court cannot require them to give undertakings as to damages as a condition of granting an interim injunction.) The submissions of the parties at the hearing yesterday focussed on issues relating to the balance of convenience in this case.

6    In my view, the balance of convenience favours the grant of the interlocutory relief sought by the ABCC. Before setting out my reasons for so concluding, it is helpful to briefly summarise the relevant facts.

Background facts

7    Material background facts are set out in affidavits filed by the ABCC and the respondents.

8    In summary, from on or around 8 March 2018, officials of the CFMMEU including the individual respondents have appeared at the site office of the Project seeking entrance on to the Project. It is common ground that, of the individual respondents, all but one have been issued valid entry permits pursuant to Pt 3-4 of the FW Act. The exception is Mr Pauls, the second respondent.

Evidence of the ABCC

9    Ms Cherie Ellis, the Human Resources Manager for the Project, affirmed an affidavit on 18 April 2018. In her affidavit Ms Ellis deposed, inter alia:

    Named individual respondents had arrived at the Site on 8 March 2018, 20 March 2018, 9 April 2018, 10 April 2018, 11 April 2018, 12 April 2018, 13 April 2018, 16 April 2018 and 17 April 2018.

    On each occasion the individual respondents informed managers at the Site that they were entering the Site pursuant to s 81(3) of the WHS Act rather than as union officials, and as a result they were not required to show their permits. When asked, the respondents refused to show entry permits.

    On 10 April 2018 the second and third respondents presented at a bridge on the Site, unescorted by Site management staff, and refused to leave when requested. They were arrested by the police for trespassing, during which time work on the bridge ceased. Similar events occurred on 11, 13, 16 and 17 April 2018.

    Individual respondents stated that they had health and safety concerns on the Site. Workplace health and safety inspectors attended on numerous of these days.

10    Mr Jonathan Eames, Construction Manager with the Project with overall responsibility of the day-to-day operation of the Project, swore an affidavit on 18 April 2018. In that affidavit Mr Eames explained that the Project is an upgrade of the Bruce Highway, including interchanges, from Caloundra Road to the Sunshine Motorway and extending approximately nine kilometres in distance. He explained further that construction commenced in April 2017, was due to be completed by mid-2020, and that the total value of the Project was $900 million.

11    Mr Eames gave evidence of events which had taken place on the Site. In particular, Mr Eames deposed as follows:

29.    A significant amount of time of key managerial staff on the Project site has been taken up by the issue of the CFMEU/CFMMEU officials seeking to enter under section 81(3) by not producing their entry permits when asked and entering anyway. Those persons include, Cherie Ellis, Derksen, Barnes, Hunter, Cuffe and myself. I am of the view that to enter the Project site under section 81(3) the CFMEU/CFMMEU officials are required to produce their entry permit when asked. The CFMEU/CFMMEU officials have refused to produce their entry permits on each occasion they have been asked to, but nevertheless entered the Project site to undertake safety inspections, specifically on 8 March 2018, 9 April 2018, 10 April 2018, 11 April 2018, 12 April 2018, 13 April 2018, 16 April 2018 and 17 April 2018. Generally, when the CFMEU/CFMMEU officials enter under section 81(3) and refuse to produce an entry permit when asked, Cherie Ellis and Derksen (or some other member of management) will request the QPS be called to require them to attend the Project site. Contacting QPS would require some attention by at least two members of management. Until the arrival of the QPS, at least two members of staff, for example Cherie Ellis and Derksen, are required to accompany the CFMEU/CFMMEU officials around the Project site in an attempt to ensure that there is no risk to work health and safety. If and when QPS attend, other management representatives are required to engage with QPS to explain the situation, to engage on the various positions and to resolve the issues. This has an impact on the Project generally in that time and resources of these managers are directed from the performance of their routine tasks to this issue.

30.    I am also aware that specific safety issues have arisen by reason of the CFMEU/CFMMEU officials entering the Project site and refusing to comply with reasonable directions. This includes the direction given by Derksen on 11 April 2018 to Gibson, Hynes and Kurt Pauls (Pauls), who had pulled their car up on the side of an access road and began wandering around the car, to not stop the car and proceed to walk onto a live access road. Derksen explained to me that Gibson, Hynes and Pauls ignored this direction and instead the CFMMEU officials’ car remained stopped on the access road and Gibson, Hynes and Pauls continued walking on the live access road.

31.    In my experience the presentation of an entry permit by a union official acts to serve a purpose of proof of identity of an individual and their eligibility to exercise the powers under the WHS Act that union permit holders can exercise. It is also important from a work health and safety site perspective that a Principal Contractor understands who is entering the site and who we are discussing work health and safety issues with.

32.    I decided on Friday 13 April 2018 to cancel the Saturday 14 April 2018 day shift (6.30am to 1.00pm). This resulted in the stand down of approximately eighty workers. The reason that I made this decision was because in light of the conduct of the CFMMEU officials entering the Project site under section 81(3) on each of 9, 10, 11, 12 and 13 April 2018 that my expectation was that the same would occur on 14 April 2018. The number of management staff on site on weekend shifts is less than weekday shifts and accordingly I formed the view that there would be insufficient resources to manage any CFMMEU official entry on Saturday. There is no Saturday night shift and no Sunday day shift in the roster. For the same reasons expressed above I also decided to cancel the Sunday night shift for 14/15 April 2018 (6.30pm to 5.30am). The cancellation of the Sunday night shift involved the stand down of approximately forty workers.

33.    There is of course a financial cost for the Project when shifts are cancelled. Whilst I have not had time to carry out a detailed calculation of the costs incurred as a result of the stand down of these shifts, I estimate that the cost associated with the stand down of these shifts would be approximately twenty to thirty thousand dollars.

34.    The stand down of the shifts also causes further delay to the delivery of the Project.

12    On 18 April 2018 Mr Wayne Jenkinson, an Australian Building and Construction Inspector, swore an affidavit in which he deposed, inter alia, that according to the Fair Work Commission website each of the individual respondents, except Mr Pauls, held a Fair Work entry permit. Materially, he also deposed:

12.    At about 10.30am on 17 April 2018 I had a conversation with Senior Constable Veronica Brennan of the Sippy Downs Police Station who informed me that in the course of issuing a Notice to Appear to Pauls earlier that morning, Pauls said to her words to the effect of “I will keep coming back until I don’t need to”.

13    In an affidavit affirmed 17 April 2018, Mr Adam Derksen, the Superintendent of the Southern Zone of the Project, gave evidence of events at the Site consistent with that of Ms Ellis and Mr Eames. In relation to the impact on work activities he deposed as follows:

165.    Each time the CFMMEU officials referred to in this affidavit accessed a part of the site at which work activities were being undertaken (that is, any part other than the Site Office where construction work was being performed), I caused the work activities at the place the CFMMEU officials had accessed to stop. This was necessary in order to guarantee the safety of the CFMMEU officials, because they had not been inducted into the site and because I was not able to control their conduct, and because their presence represented a safety hazard to other workers in the vicinity.

166.    During the course of the Sixth and Seventh CFMMEU visits, work was stopped for a few hours. Work was stopped for longer during the course of other visits.

167.    In addition, on occasions my entire day was taken up with the CFMMEU officials trespassing on site and the wrap-up from that.

Evidence of the respondents

14    Mr Royce Kupsch, a union official employed by the CFMMEU, affirmed an affidavit in these proceedings on 19 April 2018. Mr Kupsch deposed that building and construction industries are extremely dangerous, typically with multiple fatalities in Queensland each year, and that one of the objects of the CFMMEU is the enhancement of workplace safety. Further, he stated:

19.    On 10, 12, 13, 16 and 17 April 2018 officials of the Union attended the Fulton Hogan/Seymour Whyte Bruce Highway Upgrade Project (the Project) and attempted to assist workers with issue resolution under s.81 of the WHS Act. On each of those dates officials of the Union, including myself on 17 April 2018, were issued Notices to Appear by the Queensland Police Service for allegedly committing the summary offence of trespass in breach of s.11 of the Summary Offences Act 2005 (Qld). So far 11 such notices have been issued to 6 officials of the Union. The Union and the officials intend to defend those proceedings including by making submissions about the proper operation of s.81(3) of the WHS Act (I do not waive privilege).

20.    On 17 April 2018 there were workplace safety issues at the Project. Those included fall from heights, falling objects and access/egress. I also believe that WHSQ issued statutory notices, including a Prohibition Notice on 11 April 2018, in respect of unsafe working conditions at the Project.

15    At the hearing yesterday, Mr Reitano for the respondents tendered four improvement notices apparently issued by a safety manager of Work Health and Safety Queensland on the Project on 18 April 2018. These improvement notices appear to relate to provision of up to date first aid equipment at the Site; testing of emergency procedures with relevant workers including frequency of testing, information training and instruction, and testing of emergency procedures in relation to chemicals; failure of the Project to ensure that an amenity provided was maintained in a hygienic, safe and serviceable condition, including by ensuring that there was a system for inspecting and cleaning amenities; and failure to ensure a safe work method for high risk work before it commenced.

Balance of convenience

16    Noting the evidence before the Court at this interlocutory stage, and noting further the concession of the respondents that the ABCC has substantiated a prima facie case, I now set out my reasons for finding that the balance of convenience favours the ABCC in respect of his application for interlocutory injunctive relief.

17    First, the CFMMEU submits that the interlocutory relief sought would prohibit the respondents utilising s 81 of the WHS Act for an indefinite period at the Site, which would be detrimental to workplace health and safety in what is already a high risk industry. I do not accept this submission. While building and construction sites are potentially dangerous, the interlocutory injunctive relief in the terms sought by the ABCC would simply require CFMMEU officials wishing to attend the Site for reasons associated with s 81 to produce an entry permit under the FW Act.

18    Second, no prejudice to the respondents is apparent to me in the event that I order the interlocutory relief sought. Rather, while this is an issue which is yet to be resolved in the substantive proceedings, there is a prima facie case before the Court that the production of an entry permit in the circumstances contemplated by the proposed relief may be necessary under the relevant Queensland legislation in light of the decision of the Full Court of the Federal Court in Australian Building and Construction Commissioner v Powell [2017] FCAFC 89; (2017) 251 FCR 470 suggests. In any event, I also note that six of the seven individual respondents have an entry permit – the production by them of those permits is scarcely a hardship to either them or the CFMMEU.

19    Third, while Work Health and Safety Queensland has issued improvement notices to the Project, at best this is a neutral issue which does not influence the balance of convenience in this case. The improvement notices indicate that there are safety issues associated with the Site. These safety issues could have been identified by union officials having entered the site pursuant to entry permits.

20    Fourth, I reject the submission of the respondents that the ABCC has been seized of the present argument since June 2017 but has taken no steps to agitate it until now. The evidence before the Court clearly indicates that the conduct of the respondents which has generated this litigation is of recent origin. There has been no delay on the part of the ABCC which would result in prejudice to the respondents.

21    Fifth, the absence of prejudice to the respondents can be contrasted with the significant prejudice to the Project participants arising from the conduct of the respondents. As submitted by the ABCC, and as is apparent from the available evidence of the ABCC’s witnesses, consequences of the respondents entering the sites without entry permits have included:

    the unauthorised entries are causing safety issues on the Site;

    when the respondents attend without being authorised to do so, work ceases in that vicinity;

    shifts have been cancelled by Project managers in anticipation of unauthorised visits by the respondents;

    stand down of shifts has caused further delay to the delivery of the Project;

    delays are having financial consequences in respect of the Project; and

    the working time of managers and other employees on the Project is taken up dealing with the individual respondents when they are on site.

22    Sixth, I am satisfied from the evidence before me that it is likely the conduct of the respondents has not ceased, and will continue until they decide to desist.

23    Seventh, at the hearing Counsel for the respondents submitted that the ABCC is aware that six of the seven individual respondents have entry permits, and requiring them to produce those permits is, in essence, an inconvenience to them in circumstances where such production is practically unnecessary. I reject this submission. I accept the evidence of Mr Eames that, at least insofar as concerns the Project, presentation of an entry permit by a union official acts as proof of identity of an individual and their eligibility to exercise the powers under the WHS Act that union permit holders can exercise. This in itself is an important purpose of the production of right of entry permits in the circumstances.

Conclusion

24    I am prepared to grant the interlocutory relief sought by the ABCC in the terms sought. I will also hear the parties as to further case management orders in respect of the substantive application.

Associates:

Dated:    20 April 2018

SCHEDULE OF PARTIES