Federal Court of Australia

Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (Inner City South State Secondary College Case) [2020] FCA 1147

ORDERS

THE COURT ORDERS THAT:

1.    Until the hearing and determination of the Applicant’s application for interlocutory relief dated 31 July 2020 or until further order of the Court:

(a)    the First Respondent, whether by its officers, employees, delegates, agents or howsoever otherwise;

(b)    the Second Respondent; and

(c)    the Third Respondent,

be restrained from organising, encouraging, procuring or inducing any persons employed to perform work at the Inner City State Secondary College Project, located at 252-258, 270 & 274-286 Gladstone Road, 2-4 Grantham Street, 167-171 Annerley Road and 4 & 7-23 Denbigh Street, Dutton Park, Queensland (Site), to engage in unlawful industrial action.

2.    The “unlawful industrial action” for the purposes of the interlocutory order is:

(a)    a ban, limitation or restriction on the performance or acceptance of work at the Site by an employee;

(b)    the failure or refusal by employees to attend work at the Site; or

(c)    the failure or refusal to perform any work at all, by employees who attend work at the Site,

the purpose of which is to pressure Broad Construction Pty Ltd to remove Phillip Millan from the Site or remove or restrict Mr Millan’s responsibilities as a Project Manager at the Site, but does not include protected industrial action within the meaning of the Fair Work Act 2009 (Cth).

3.    The First Respondent must forthwith:

(a)    notify officers and employees of the First Respondent’s Construction and General Division, Queensland and Northern Territory Divisional Branch (CFMMEU Qld Branch), and its delegates or agents of the First Respondent who are employed or engaged to work at the Site, of:

(i)    the existence and terms of the Order; and

(ii)    the withdrawal of any direction, authorisation or encouragement by the First Respondent for any of its members employed to work at the Site (Relevant Employees) to engage in industrial action,

(b)    issue and distribute (including but not limited to posting, and maintaining for the duration that the order is in force, on the home pages of the First Respondent and of the CFMMEU Qld Branch (https://www.cfmmeu.org.au/ and https://www.qnt.cfmeu.org) to the Relevant Employees a communication which:

(i)    includes a copy of this Order;

(ii)    states that the industrial action defined in this Order is to cease and any prior authorisation of the industrial action is cancelled.

4.    The requirement under Rule 41.07 of the Federal Court Rules for personal service of this Order on the First Respondent is dispensed with and, instead, service of this Order upon the First Respondent is permitted by forwarding a copy of it by email or facsimile transmission addressed to the Secretary of the CFMMEU Qld Branch.

TO:

    CONSTRUCTION, FORESTRY, MARITIME, MINING AND ENERGY UNION

    ANDREW BLAKELEY

    DEAN MATTAS

TAKE NOTICE THAT, PURSUANT TO ORDER 41.06 OF THE FEDERAL COURT RULES:

You are liable to imprisonment or to sequestration of property if:

(a)    you refuse or neglect to do the things that this order requires you to do; or

(b)    you do the things that this order requires you to abstain from doing, or otherwise disobey this order.

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

REASONS FOR JUDGMENT

(REVISED FROM TRANSCRIPT)

LOGAN J:

1    There is presently under construction at Dutton Park in Brisbane a building project for a new educational facility for the State, which will be known as the Inner City South State Secondary College (State Secondary College). The head building contractor for that project is Broad Construction Pty Ltd (Broad). The Australian Building and Construction Commissioner (the Commissioner) alleges that, since 21 July 2020, Mr Andrew Blakeley, an organiser of the Construction, Forestry, Maritime, Mining and Energy Union (the Union) and Mr Dean Mattas, an employee health and safety representative and union site delegate at the building project, have contravened civil penalty provisions of the Building and Construction Industry (Improving Productivity) Act 2016 (Cth) (BCIIP Act).

2    More particularly, the Commissioner alleges a contravention of s 46 of the BCIIP Act constituted by the organising by Messrs Blakeley and Mattas, or procuring by them, of some 130 construction workers at the building project to engage in unlawful industrial action in terms of that Act. The Commissioner further alleges that, in contravention of s 52 of the BCIIP Act, by delivering what is said to be an ultimatum to Broad that the workers on the project site will not resume any work there unless Broad removes its project manager, a Mr Phillip Millan from the building project, Messrs Blakeley and Mattas have taken action with intent to coerce Broad not to employ Mr Millan or not to allocate or designate to Mr Millan direct project management responsibilities for that building project.

3    The Commissioner further alleges that via the operation of s 94 of the BCIIP Act, the conduct and state of mind of Messrs Blakeley and Mattas are taken to be that of the Union, thereby, so it is said, rendering the Union liable for those alleged contraventions. The Union and Messrs Blakeley and Mattas are respectively first, second and third respondents to the application. The Commissioner alleges further that, unless restrained by order of the court, the alleged contravening conduct is likely to continue, thereby putting at risk the timely completion of the school building project. The State Secondary College is scheduled to open by February 2021 for up to 1,500 high school students.

4    There is, of course, as the evidence reveals, particularly when one has regard to an affidavit made by Mr Mattas, another side to this case. If one looks to, as I have, the statements annexed to Mr Mattas’ affidavit, clearly, as was submitted on behalf of the respondents, not prepared by lawyers but rather workers directly, it is not hard to see how cause for concern arose on the part of the Union and, more particularly, Mr Blakeley and Mr Mattas. Overarchingly, though, it needs to be borne in mind, firstly, that this is not a trial on the merits and, secondly and even more particularly, no evidence as yet has been heard from Mr Millan.

5    It is, in my view, desirable to put the circumstances of the present case in a rather wider context to understand motivations which may well be abroad on the part of the respondents. In McLean v Tedman (1984) 155 CLR 306, at 313, Mason, Wilson, Brennan and Dawson JJ observed in their joint judgment:

The employer’s obligation is not merely to provide a safe system of work; it is an obligation to establish, maintain and enforce such a system. Accident prevention is unquestionably one of the modern responsibilities of an employer: see Fleming, Law of Torts, 6th ed. (1983), pp. 480-481. And in deciding whether an employer has discharged his common law obligation to his employees the Court must take account of the power of the employer to prescribe, warn, command and enforce obedience to his commands.

To that statement of the Australian common law position in relation to workplace health and safety, one might, with respect, add that accident prevention is unquestionably one of the modern responsibilities of a trade union.

6    The origins of Australian trade unionism are to be found in the rise and development of trade unions in the United Kingdom. When one has regard to those origins, there is, in my view, a very good case to be made that accident prevention was a concern of trade unions long before it became generally a concern of employers.

7    A very salutary account of the origins of that concern in the United Kingdom is to be found in a paper, Litwin A, “Trade Unions and Industrial Injury in Great Britain” (Future of Trade Unions in Modern Britain program delivered at the London School of Economics and Political Science, London, August 2000). In the introduction to his paper, Mr Litwin observes, by reference to in 1897 by Sidney and Beatrice Webb, founders of the London School of Economics and Political and later Lord and Lady Passfield, the following:

… the United Society of Boilermakers has insisted, in its elaborate agreement with the Ship Repairers’ Federation of the United Kingdom, upon the following clause: “The employers undertake that, before men are put to work on [repairing the great tank ships for carrying petroleum in bulk, in which dangerous vapour accumulates], an expert’s certificate shall be obtained daily to the effect that the tanks are absolutely safe. Such certificate to be posted in some conspicuous place.” Innumerable other regulations aim at the removal of the conditions injurious to the workers’ health. Thus, the various trade unions of “ovenmen” (potters) have for a whole generation protested against being forced to empty the ovens before these have been allowed to grow cool, on the express ground that this unnecessary exposure to a temperature between 170 and 210 degrees Fahrenheit is seriously detrimental to health. Several strikes have taken place solely on this point, and the Staffordshire Ovenmen’s Union now has a by-law authorising the support of any member who is dismissed for refusing to work in a temperature higher than 120 degrees. (Webb and Webb, 1897: 358)

Thus, the birth of an historical expectation that trade unions embrace workplace health and safety as a fundamental responsibility. Sidney and Beatrice Webb (1897) provided one of the earliest descriptions of the means by which trade unions reduce the number of accidents in the workplace, including lobbying for safety legislation and making workplace hazards more costly to employers by raising the tacit risk premia embedded in wages, i.e. compensating wage differentials. Unions also take direct action on the shop floor to make the workplace safer.

[emphasis added]

8    In modern times, workplace health and safety has been regarded as extending not just to risks of physical injury but also to particular conduct in the workplace which can have resonance in terms of the mental health and comfort of workers.

9    In Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (Broadway on Ann Case) (2018) 265 FCR 208, both Tracey J and I had occasion to make particularly pointed remarks in relation, in particular, to the conduct of a then official of the Union (prior to its amalgamation with the Maritime Union of Australia), Mr David Hanna at a worksite. That conduct, materially for present purposes included foul abuse of various employer representatives.

10    The Union, Mr Blakeley and Mr Mattas are entitled to expect that similarly pointed remarks and, if proven, similarly pointed penalties will be visited on employer representatives who likewise, and without reasonable cause, direct foul language to workers.

11    Of course, a worksite is not a monastery and at times pressures of deadline and performance result in intemperate language which in hindsight may well be regretted. However, the ready use of such language can – I am well prepared to accept – amount to bullying in a workplace. So neither the Commissioner nor the Union nor Mr Blakeley nor Mr Mattas should labour under any apprehension that a wider context in which this case falls to be decided is not well understood by me. Equally, with the aim of reducing tensions in the workplace and providing mechanisms whereby particular conduct said to be unacceptable can be addressed, prescription is made in various enterprise agreements for resort to processes and industrial action other than merely direct action by collective withdrawal of labour.

12    It is singularly important that historic, and perhaps instinctive, reactions to what are perceived to be transgressions of acceptable behaviour in a modern workplace are tempered by modern means of dealing with them. As I see it, it is that interplay between instinctive reaction informed by historical position compared with modern prescription that lies at the heart of the present application for interlocutory injunctive relief.

13    As to the granting of such relief, the applicable principles are not in doubt. These were explained by the High Court in Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57 and earlier in Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618. In short, it is for the Commissioner to demonstrate that he enjoys a sufficient likelihood of success in the principal proceeding to warrant in the prevailing circumstances, as shown on the evidence before the Court, preservation of a particular status quo, either pending trial or to some earlier date.

14    That entails demonstration of whether or not the Commissioner has a prima facie case. In turn, that entails an examination of the strength of that case in terms of its probability of success. That is not to say that the Commissioner in seeking an interlocutory injunction must show that it is more likely than not that he will succeed. Rather, what the Commissioner must show is a sufficient likelihood to the extent that there is a serious question to be tried.

15    Another factor which, whilst it can be identified separately, interplays in terms of an exercise of discretion as to whether to grant interlocutory injunctive relief is the balance of convenience. It may well be, and I rather consider it is in the circumstances of the present case given the nature of the building project, that if not a separate factor another consideration which intrudes on the balance of convenience which is the public interest, represented by the due completion in time for the start of a new school year, if possible, of what must obviously, from the number of students concerned, be regarded as an important addition to the State’s educational resources.

16    As to that, and at the suggestion of the Court, notice of the proceeding has been given to the State. The State has not sought to be heard separately in the case. The respondents make a point, which is legitimate enough to make, that the absence of the State might be thought to diminish the public interest to which I have just referred. I rather think, however, that the presence of the State would have done nothing more than to underscore a public interest which is, in any event, manifest, objectively, from the very nature of the project and its scheduled completion date. That was the essence of the riposte made by the Commissioner to the Union’s submission about the absence of the State and, in my view, that riposte is a good one.

17    As recently as yesterday, so the evidence of Broad’s senior project manager, Mr Cameron Kirkwood establishes, the following exchange occurred between him and Mr Mattas in the lunch room:

Mr Mattas said to Mr Kirkwood, “We’ve got some timesheets for you to sign here”.

To this Mr Kirkwood replied, “Yes, but I’ll be writing comments on there that workers were not undertaking normal work duties”.

To this Mr Mattas replied, according to Mr Kirkwood, “You can write what you want … The workers are exercising their rights”.

To this Mr Kirkwood replied, “The job is open”.

18    Based on the project construction program and according to Mr Kirkwood’s personal knowledge, and also investigations which he has caused to be undertaken, his evidence is that the following might have been expected from subcontractors to Broad, in terms of site attendance:

(a)    Action Formwork (2 workers attended, and another 37 should have attended the site);

(b)    Beavis and Bartels (1 worker attended, and another 3 should have attended site);

(c)    Blue Star Pacific Electricians (3 workers attended, and another 2 should have attended site);

(d)    Rovera Scaffolding (1 worker attended, and another 12 should have attended site);

 (e)    L&D Contracting (1 worker attended, and another 4 should have attended site);

 (f)    Liebherr Cranes (6 workers attended site);

(g)    Lindores Personnel (2 workers attended, and another 10 should have attended site);

19    In addition to this, so Mr Kirkwood deposes, he has also investigated and ascertained, so far as he believes, that other subcontractors whose workers were scheduled to be on the site, having regard to the construction program, did not have workers attend at all. His estimate in that regard, identifying the subcontractors concerned and the expected number of workers, is as follows:

(a)    Statewide Steelfixing (approximately 13 workers);

(b)    SRG Global (approximately 7 workers);

(c)    Placecorp Concrete (approximately 16 workers);

(d)    Euro Precast vertical (approximately 5 workers);

(e)    Priest & Co (approximately 2 workers);

(f)    Ministaff (approximately 1 worker);

(g)    Auscoast Fire (approximately 2 workers); and

(h)    Venmist (approximately 2 workers).

The workers to whom Mr Kirkwood refers in his evidence are direct employees of the subcontractors.

20    The evidence establishes that complaints have been directed by the Union, and perhaps also by workers directly, to workplace health and safety inspectors of the state performing duties under the Work Health and Safety Act 2011 (Qld). It further establishes that such inspectors have attended on site and are presently investigating complaints of workplace bullying by Mr Millan. Yet further, the evidence establishes that the inspectors have chosen not to direct to Broad a prohibition notice, at least as yet, arising out of alleged bullying conduct.

21    The Commissioner is an authorised applicant. It is not just Broad who would have standing to seek interlocutory injunctive relief. Indeed, there has been no submission on behalf of the respondents that the Commissioner lacks standing.

22    Under s 81(1) of the BCIIP Act, this Court, as a “relevant court”, has power to make orders which for present purposes, include by paragraph (c) “any other order that the court considers appropriate” and that is apart from pecuniary penalty and compensatory orders. Further, by s 81(3), the orders that may be made under s 81(1)(c) include:

 (a)    injunctions (including interim injunctions); and

(b)    any other orders that the court considers necessary to stop the conduct or remedy its effects …

23    Cases decided under an analogous provision in earlier legislation have established that the Court’s power to grant interlocutory injunctive relief extends to the granting of an interlocutory injunction on the basis of a serious question to be tried as opposed to requiring a definitive conclusion as to whether a contravention has actually occurred, as would have to be the case at trial: see, for example, CBI Construction Pty Ltd v Abbott (2008) 177 IR 134, at [62] – [66].

24    The respondents for their part, whilst they concede that there is a question to be tried, do question whether it is really all that serious. In particular, attention has been directed on behalf of the respondents to a standard form clause which is to be found in enterprise agreements applying to the Union’s members at the building project. That selected by way of example, is in cl 9 of the “Lindores Personnel No 1 Pty Ltd CFMEU Union Collective Agreement 2018-2019” agreement.

25    Clause 9.9 provides:

9.9    Direction to cease work

(a)    If –

(i)    an issue concerning health or safety arises at a workplace or from the conduct of the undertaking of the Employer; and

(ii)    the issue concerns work which involves an immediate threat to the health or safety of any person; and

(iii)    given the nature of the threat and degree of risk, it is not appropriate to adopt the processes set out in clause 9.7 above-

(b)    the Employer and/or the health and safety representative for the designated work group in relation to which the issue has arisen may, after consultation between them, direct that the work is to cease.

(c)    During any period for which work has ceased in accordance with such a direction, the Employer may assign any Employees whose work is affected to suitable and safe alternative work.

26    It will be seen at once from a study of cl 9.9 that there is no longer an ability unilaterally to direct workers to withdraw labour. In other words, the direct action of the 19th century referred to in Mr Litwin’s paper is not contemplated by this enterprise agreement clause. It may well be that there is a misconception, perhaps based on historical positions, as to the operation of this clause, but there is at the very least a serious question to be tried as to whether or not in the circumstances presently prevailing this clause has truly been complied with.

27    One will see that one of the conditions precedent for which cl 9.9 provides is that:

the issue concerns work which involves an immediate threat to the health or safety of any person

28    Whilst I readily accept that threat need not be confined to physical health and safety, it must, nonetheless, be of an immediate character. On the evidence to hand, which, as I have already highlighted, includes statements of workers annexed to Mr Mattas’ affidavit, there is, in my view, a serious question to be tried as to whether there is an immediate threat. That aside, the Commissioner, in my view, has also established a serious question to be tried as to whether or not there has been, in terms of cl 9.9(b) consultation between the employer and workplace health and safety representatives.

29    Consultation is no new subject in industrial law. I had occasion in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v QR Ltd (2010) 198 IR 382 (CEPU v QR), at [40] – [45], to pass on the meaning of “consultation”:

40    I commence first with the text of cl 36 and the ordinary meaning of the word “consult”.

41    The Oxford Dictionary gives the primary meaning of “consult” when, as the agreement does, used as a verb as, “[t]o take counsel together, deliberate, confer; also said of a person deliberating with himself” (Oxford English Dictionary, 2nd Edition, Online version). No different meaning for the word is supplied by Australian idiom, (q.v. the definition in Macquarie Dictionary Online). The word is plainly not used in cl 36 in the sense of deliberating with one’s self.

42    The imposition of a requirement for one party to consult with another is hardly unique to industrial instruments. I have already made passing reference to coincidental examples of requirements to “consult” in the course of setting out the history of legislative provision in Queensland with respect to railways. A search of current Commonwealth legislation discloses no less than 572 provisions imposing a requirement on a Minister or other official or agency to “consult”. In turn, as a study of reported cases discloses, these are but Australian exemplars of a requirement widely employed in a range of public administration applications by the parliaments of the United Kingdom and elsewhere in the Commonwealth of Nations.

43    Thus, in Port Louis Corporation v Attorney-General (Mauritius) [1965] AC 1111 at 1124 the Judicial Committee observed of a consultation obligation in an ordinance in respect of measures to alter local government boundaries that: “[t]he nature and object of consultation must be related to the circumstances which call for it” and “The requirement of consultation is never to be treated perfunctorily or as a mere formality. The local authority must know what is proposed; they must be given a reasonably ample and sufficient opportunity to express their views or to point to problems or difficulties; they must be free to say what they think.” These observations as to what was entailed in a requirement to consult commended themselves, in the different context of their use in broadcasting legislation, to Toohey J when a judge of this Court in TVW Enterprises Ltd v Duffy (No 2) (1985) 7 FCR 172. His Honour pithily remarked (at 178), “Consultation is no empty term.” That same sentiment is evident in the following passage from the judgement of Sachs LJ in Sinfield v London Transport Executive [1970] Ch 550 at 558 concerning a consultation obligation which attended a power to alter bus routes:

It is apposite first to mention that Mr Francis emphasised not once but several times that whatever be the true construction of section 22(3) [which contained the consultation requirement] and whatever order this court might make, it was in the end the executive and no one else who made the decision. If that was intended to intimate that the executive merely looked on consultations as being an opportunity for those consulted to make ineffective representations, it would represent an approach that, to put it mildly, cannot be supported. Consultations can be of very real value in enabling points of view to be put forward which can be met by modifications of a scheme and sometimes even by its withdrawal. I start form the viewpoint that any right to be consulted is something that is indeed valuable and should be implemented by giving those who have the right an opportunity to be heard at a formative stage of proposals — before the mind of the executive becomes unduly fixed.

44    Such cases have proved influential in the Australian Industrial Relations Commission (industrial commission) for the guidance they offer as to what a requirement to “consult” entails: Construction, Forestry, Mining and Energy Union v Newcastle Wallsend Coal Co Pty Ltd (unreported, AIRC (FB), R0234, 21 December 1998); Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Vodafone Network Pty Ltd (unreported, AIRC, Smith C, PR911257, 14 November 2001); Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Optus Administration Pty Ltd (unreported, AIRC, Smith C, PR912122, 4 December 2001). The apprehension in the industrial commission that these cases were of assistance was not, with respect, misplaced. They serve to confirm an impression as to the content of an obligation to “consult” evident from the dictionary meaning of the word. A key element of that content is that the party to be consulted be given notice of the subject upon which that party’s views are being sought before any final decision is made or course of action embarked upon. Another is that while the word always carries with it a consequential requirement for the affording of a meaningful opportunity to that party to present those views. What will constitute such an opportunity will vary according the nature and circumstances of the case. In other words, what will amount to “consultation” has about it an inherent flexibility. Finally, a right to be consulted, though a valuable right, is not a right of veto.

45.    To elaborate further on the ordinary meaning and import of a requirement to “consult” may be to create an impression that it admits of difficulties of interpretation and understanding. It does not. Everything that it carries with it might be summed up in this way. There is a difference between saying to someone who may be affected by a proposed decision or course of action, even, perhaps, with detailed elaboration, “this is what is going to be done” and saying to that person “I’m thinking of doing this; what have you got to say about that?”. Only in the latter case is there “consultation”. That this is the sense in which “consultation” is used in the QR Agreements is evident from cl 36.1 of the Traincrew Agreement.

30    There was a subsequent appeal to the Full Court from that judgment and also, I must highlight, from a later judgment concerning penalty. Whilst the appeal in respect of penalty was successful, that in respect of liability, and thus the meaning given to “consult”, was not.

31    Regard to the judgments in the Full Court in QR Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union (2010) 204 IR 142, discloses at 143 that a consultation obligation:

… is not concerned with the likelihood of success of the consultative process.

It is concerned only to ensure that consultation occurs before a decision is made.

32    In the Queensland Rail litigation to which I have referred, consultation was directed to the subject of whether there should be redundancies in the workplace; here, it is directed to a threat to health and safety, said to have a quality of immediacy. In CEPU v QR, at [45], as to the meaning of “consult”, I observed:

There is a difference between saying to someone who may be affected by a proposed decision or course of action, even, perhaps, with detailed elaboration, “this is what is going to be done” and saying to that person “I’m thinking of doing this; what have you got to say about that?”. Only in the latter case is there “consultation”.

33    In my view, the Commissioner has established on the evidence to hand prima facie unilateralism on the part of the Union by Messrs Blakeley and Mattas rather than consultation. So in short, whilst the nature and extent of the consultation must invariably be determined by the circumstances of a given case, materially including the nature and alleged immediacy of an alleged threat, there remains a difference between unilateralism and consultation.

34    The Commissioner also raises for consideration a possibility, and I do not elevate it any higher than that, that the stoppages of work, the withdrawal of labour which has occurred on and from 21 July, has occurred against a wider industrial background whereby the Union has been seeking to have Broad agree to a State wide enterprise agreement, and whereby Messrs Mattas and Blakeley have, on the evidence, offered what might be said to be inducements to Broad to sign a State wide agreement. It is important, at this stage, not to reach any concluded view on any of the allegations made by the Commissioner, including the one which I have just identified.

35    It does appear that there are particular concerns for Broad at the building project site about Mr Millan’s behaviour, and I do not for one moment diminish those concerns, only recognise that there are particular ways under the applicable enterprise agreements in which, even in relation to withdrawal of labour, those concerns have to be addressed. That is quite apart from other processes under State workplace health and safety legislation, which are designed deliberately by the State Parliament to address the subject of bullying in the workplace. Section 52 of the BCIIP Act provides that:

Coercion relating to allocation of duties etc. to particular person

52.    A person must not organise or take, or threaten to organise or take, any action against another person with intent to coerce the other person, or a third person, to:

  (a)    employ, or not employ, a particular person as a building employee; or

(b)    engage, or not engage, a particular independent contractor as a building contractor; or

(c)    allocate, or not allocate, particular duties or responsibilities to a building employee or building contractor; or

(d)    designate a building employee or building contractor as having, or not having, particular duties or responsibilities.

36    It is, on the evidence to hand, established prima facie that Messrs Blakeley and Mattas have engaged in that conduct in relation to Broad with respect to Mr Millan. The term “ultimatum” does seem to me an apt description as to what has prima facie been established: either remove Mr Millan, or have no workers or next to no workers. The Commissioner submits that such action, if proved at trial, would not be lawful; I agree. Prima facie, such action has been established.

37    The case is one which one might expect would be pursued in either, or each, of the Fair Work Commission or the State industrial inspectorate. Further, one might expect that, at the very least, there would be, awaiting to see the end result of the State workplace health and safety investigation. One might reasonably expect, given the apparent importance of the project to the delivery of public education, that that investigation would be pursued with rigour and diligence.

38    In terms of the definition of industrial action, there are exceptions for which s 7(2) of the BCIIP Act provides. It has been submitted on behalf of the Commissioner, in my view, correctly, about these being exceptions, it is not for the Commissioner to disprove or exclude them. In any event on the evidence to hand, I am satisfied that, albeit only at the level of a prima facie case, the exceptions for which s 7(2) of the BCIIP Act provides are not engaged. The reason for that is, I have singular difficulty in accepting that Mr Millan’s conduct could be such that, in the minds of each of the workers who have not attended, as estimated by Mr Kirkwood, there existed a reasonable concern about an imminent risk to the health and safety of each and every one of them posed by his mere presence on the site.

39    Particularly that is so, given that upon the evidence he spends about half of the given working day in an office, and that his primary dealings are with on-site supervisors, as one might expect, not with individual workers. The site concerned is some two hectares in size. Once again, it is difficult to see how, given the size of the site and the number of workers, his presence would be so pervasive as to pose an immediate threat. None of that is to diminish the possibility of bullying in an individual case, only that it is very difficult indeed to see that it has a pervasiveness such that exceptions for which s 7(2) of the BCIIP Act provides would be engaged.

40    It therefore appears that there exists a prima facie case of contraventions and those contraventions have a singular resonance in relation to a singular public interest in the completion, if possible, on time of the project. In my view, when one takes account of the strength of the Commissioner’s case and the balance of convenience, especially as to the latter the public interest mentioned, the case is one which warrants the granting of interlocutory injunctive relief. To reach that conclusion is, at the risk of repetition, in no way to indicate any lack of recognition on my part of a legitimate role for trade unions, an historically legitimate role, in relation to workplace health and safety, it is only also to recognise in modern times that there are lawful processes which both employer, worker and union must follow.

41    There was raised, in respect of the promoted orders by the Commissioner, by the Union an apprehension in relation to whether they contained a requisite degree of precision. The Union also raised some concerns in relation to whether it was necessary to provide for particular personal service as opposed to providing for service via solicitor. In relation to the granting of interlocutory injunctive, or for that matter final injunctive, relief, it is to be borne in mind that courts do not make orders of an injunctive kind, the breach of which may sound in contempt, and via that, in imprisonment or fine, by using such imprecise language that the nature and extent of the obligation entailed is rendered uncertain: see Pakenham Upper Fruit Co Ltd v Crosby (1924) 35 CLR 386, at 395.

42    As to the need for the injunctive relief to extend beyond procuring, in my view the conduct revealed on the evidence is such that it is better to make a wider prescription than a narrower one in terms of conduct of individuals.

43    Whilst I accept that in some circumstances, service on a solicitor can bind an individual in relation to compliance with injunctive orders, it is preferable in the industrial circumstances of this case, in my view, that provision be made for personal service rather than service just via a solicitor. I say that because those who will come to be bound by injunctive relief should be under no illusion that, in the absence of reasonable excuse, non-compliance with an order of this Court will be visited with stern consequences.

44    Another consideration which has been raised, very helpfully by counsel, is a reminder that at present there exist quite stringent so called “Stage 4” public health restrictions in the State of Victoria, and that that is where the Union’s national registered office is located.

45    The attraction in relation to personal service was an attraction in relation to individuals so that neither would be under doubt as to being bound by the Court’s injunctive orders. That same attraction is not abroad in relation to the Union, particularly having regard to the prevailing public health situation in Victoria and its representation in this case. Thus, in relation to proposed order 4, the dispensation that I regard as appropriate from the operation of r 41.07 of the Federal Court Rules 2011 (Cth) is confined to the Union as first respondent. I do not regard it as apt to dispense with the requirement for personal service on Messrs Blakeley and Mattas. That particular paragraph of the draft order will therefore need further to be amended so as to limit the dispensation in the way indicated.

46    There is also then a question in relation to the present revised wording of paragraph 2 of the draft order which in an endeavour to give precision to the reach of “unlawful industrial action” in the Court’s order, uses the following language:

the purpose or effect of which is to pressure Broad Construction Pty Ltd to remove Phillip Millan …

47    The concern voiced on the part of the Union was two-fold. Firstly, as to the use of the infinitive “to pressure” and secondly, as to the alternative “or effect”. The infinitive “to pressure” does, in my view, aptly cover the nature of the contraventions alleged, particularly the alleged contravention of s 46 of the BCIIP Act. I am, though, concerned about the effect of the alternative, that it may lead to a circumstance whereby as a matter of objective construct either the Union or Messrs Blakeley or Mattas might be prima facie, at least, considered in contempt of Court. That is not my intent. So, in my view, the alternative “or effect” should be removed from the draft such that the interlocutory orders do not include “or effect” in paragraph 2.

Associate:    

Dated:    10 August 2020