Federal Court of Australia

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Green Light Contractors Pty Ltd [2023] FCA 536

ORDERS

UPON THE APPLICANTS, BY THEIR COUNSEL, PROFFERING THE USUAL UNDERTAKING AS TO DAMAGES, THE COURT ORDERS THAT:

1.    Pursuant to section 23 of the Federal Court of Australia Act 1976 (Cth) and sections 545(1) and (2)(a) of the Fair Work Act 2009 (Cth), the Respondent must not, whether by itself or its servants or agents, refuse, delay, hinder or obstruct entry by the Second to Fifth Applicants to the EnergyConnect project in accordance with the notices served by the Second to Fifth Applicants on the Respondent on 12 or 22 May 2023 by reason only, or for reasons which include, that the Respondent contends that there are no workers whose industrial interests the First Applicant is entitled to represent.

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

REASONS FOR JUDGMENT

PERRAM J:

1    The Applicants are a union (the CEPU) and four of its organisers. Each of the organisers holds a right of entry permit under the Fair Work Act 2009 (Cth) (‘the Act’). The Respondent is engaged in the construction of a 330kV transmission line between New South Wales, Victoria and South Australia. That work involves, amongst other matters, the assembly and erection of transmission towers. The Respondent has engaged Catalpa Energy Pty Ltd (‘Catalpa’) to provide the labour for the assembly and erection of the transmission towers. Other work, of course, needs to be done. As might be naturally expected in a project of this kind, the works are on an extensive scale and are also of a moveable nature. Presently, the assembly and erection of the towers is taking place near Buronga in New South Wales on an area of land known as ‘the Easement’.

2    There are 42 employees of Catalpa working at the Easement. There are other persons working there as well but they are not working on this aspect of the project. A notice has been issued by one of the organisers requiring the Respondent to give access to the Easement at Buronga so that they may hold discussions with the 42 employees of Catalpa.

3    The Respondent has taken the position that it will only admit the organisers to the Easement to meet with persons there who are engaged in electrical work. It says that the 42 employees are not engaged in electrical work but rather the assembly and erection of towers. It says that the CEPU does not have coverage of these employees and that they are, instead, covered by the Australian Workers’ Union (‘AWU’). Consequently, it has refused to admit the organisers to the Easement. A notice has been issued which requires the Respondent to grant access to the Easement by tomorrow and it has indicated that it does not propose to permit the organisers to enter.

4    Section 484 of the Act provides:

484    Entry to hold discussions

A permit holder may enter premises for the purposes of holding discussions with one or more employees or TCF award workers:

(a)    who perform work on the premises; and

(b)    whose industrial interests the permit holder’s organisation is entitled to represent; and

(c)    who wish to participate in those discussions.

5    The issue which divides the parties is whether the 42 employees are persons whose industrial interests the CEPU is entitled to represent. Rule 2.1 of the registered rules of the CEPU provides:

Without limiting or in any way being limited by any sub-rules 2.3 to 2.21 inclusive, the Union shall consist of an unlimited number of employees who have been admitted as members in accordance with the Rules of the Union and who are engaged or usually engaged as electrical fitters, armature winders, electrical mechanics, battery fitters, railway electricians, telephone fitters, radio workers, cable jointers, linesmen, arc lamp trimmers, electrical labourers, electric crane attendants, rail welders and their assistants, electric welders whose work is associated with the work of an electrician and electricians engaged or usually engaged or employed in running and maintaining electric plants, dynamo, motor and switchboard attendants, and all employees whose callings are peculiar to the electrical industry. Also all other persons whether employees in the industry or not as have been appointed officers of the Union and admitted as members thereof.

(emphasis added)

6    The CEPU will be entitled to coverage if one or more of the employees is engaged as a linesman. The Respondent submits that none of the employees are engaged in any work involving electrical transmission lines whether live or not. The evidence establishes that the work being done at the site is as follows:

(a)    excavation of footings for transmission towers;

(b)    installation of reinforcing steel to ensure adequate tensile strength in the footings;

(c)    placement of concrete to form the footings which in turn secure the bases of the towers or the guy wire anchors; and

(d)    assembly of lattice steel structures and monopoles (at ground level and at height) and which comprise the transmission towers.

7    The work being done does not include any of the following:

(a)    installation of insulators which ensure that the conductors, i.e. the transmission lines, are isolated from the structures;

(b)    the stringing of conductors between transmission towers; or

(c)    the installation of spacers which ensure that the conductors do not get too close to each other.

8    I would accept that this work is not the work of a linesman. The Applicants submit, however, that the question is not whether they are presently doing work as linesmen but rather whether they have been employed by Catalpa as linesmen. Only one of the contracts of employment is available but this is sufficient for the Applicant’s case for if there is one employee amongst the 42 who is engaged as a linesman then the organisers are entitled to entry to the Easement.

9    That contract of employment was in evidence. Relevantly it describes the employee’s position as a ‘lineworker’. The employee’s duties were set out in Schedule 1. In that schedule, under the heading ‘Key Responsibilities’ and the sub-heading ‘Operations’ there appear these responsibilities:

•    Responsible for work as directed

•    Complete Risk Assessments

•    Complete timesheets

•    Maintain a work in progress plan

•    Steel erection & rigging

•    Installing conductors, aerial equipment and underground cables and equipment

•    Installing and maintaining poles and associated hardware

•    Fitting pole hardware and crossarms

•    Using heavy plant equipment such as elevated work platforms and portable equipment such as hydraulic drills

•    Undertake substation steel erection works

10    Under the heading ‘Qualifications/Certificates Required’, one of the qualifications required is listed as ‘Rigger/Linesman’. This is apt to suggest that the employee is employed by Catalpa as a linesman. I therefore accept that there is an arguable case that Catalpa has employed the employee as a linesman within the meaning of Rule 2.1.

11    The Respondent submits, however, that this does not mean that the employee is working as a linesman at the site. It submits that Catalpa is a labour hire firm. Whilst it was possible that its employees were working as linesmen at other sites the fact was that they were not working as linesmen at the Easement. I accept this submission.

12    The question which arises is whether a person employed to perform a particular kind of work but who is then deployed in a way which does not involve the employee doing that work means that the person is not ‘engaged’ in that work during the time at which they are not doing it. The answer to this question is one about which reasonable minds can differ. Consequently, the Applicants establish the existence of a triable issue. For myself, I would assess both sides’ contentions about this topic as having merit. I would therefore conclude that the Applicants have an arguable case of mid-level strength.

13    The outcome of the application therefore hinges on the balance of convenience. For the Respondent it is submitted that there is no urgency attending the matter. The notice which has been issued requires them to permit access to the site by tomorrow. I accept that the project will continue for probably another 2 years and that there is nothing seriously pressing about this Friday. Whatever difficulties are being encountered at the site, I do not think that they will be seriously worsened by a delay of a few days.

14    On the other hand, I accept the Applicant’s submission that there is evidence that working conditions on site may not be optimal. For example, there is evidence that at a meeting held with the CEPU and some of the employees who are its members, the CEPU was informed, amongst other matters, that there were insufficient meal breaks, no fresh water, no lunchroom, that vehicles were used for shelter during inclement weather, that there were no cold weather jackets, that they were not permitted to have electrical heaters in their accommodation and that they were working in 44 degree heat with insufficient breaks. Whilst I accept that these matters, if true, are not pressing as a safety risk they are, nevertheless, not trivial and it would not be correct to approach the matter on the basis that there was no urgency.

15    The Respondent made two other related submissions relating to the balance of convenience. The first was that if the CEPU were to be permitted to hold discussions with these employees it might sign them up as members. Its position was that these employees were in fact covered by the AWU. If the employees were signed up to the CEPU then even if the injunction were subsequently dissolved they would still remain members of the CEPU. Thus the effects of any interlocutory injunction might not be able to be undone.

16    That observation then fed into the Respondent’s related point that it did not wish to become embroiled in a demarcation dispute between the AWU and the CEPU.

17    I accept that the first matter is a potentially irreversible effect of granting the injunction now sought and should be taken into account in assessing the balance of convenience. I did not find the evidence of the risk of a demarcation dispute particularly compelling although I am prepared to assume that there is some risk.

18    There are three further matters which should be considered. The first is that the grant of interlocutory relief is likely, although not certain, to resolve the matter between the parties. If access is granted to the organisers there may be little future utility in working out whether that should have happened. This is a matter which can be relevant to the balance of convenience. In this case, it seems to me to be a matter which favours the Respondent and I will approach it on that basis. For completeness I suggested to the parties during the hearing that it would be more sensible to determine the matter on a final basis, however, this invitation was declined.

19    The second is that to the extent that the Respondent has sufficient title to sue for trespass, one consequence of the interlocutory injunction is that it will denude the Respondent of that right. The effect of the orders, if made, will be to compel it to consent to the admission of the organisers to the Easement. Whilst there may be an argument that since it will be acting under this Court’s order that it will not relevantly consent to this course of action, it is arguable that compliance with the injunction may mean that it loses the right to sue in trespass (assuming it has a sufficient possessory title to do so). However, I am satisfied that it will be entitled to make such a claim if it subsequently seeks compensation under the undertaking as to damages which the Applicants now proffer.

20    The third is that the orders are in substance mandatory. The precise relief sought is this:

Pursuant to ss 21 and 23 of the Federal Court of Australia Act 1976 (Cth) and ss 545(1) and (2)(a) of the Fair Work Act 2009 (Cth), an order that the Respondent not, whether by itself or its servants or agents, refuse, delay, hinder or obstruct entry by the Second to Fifth Applicants to the EnergyConnect project in accordance with the notices served by the Second to Fifth Applicants on the Respondent on 12 May 2023.

21    In a practical sense the order, if made, will change the status quo which is that the organisers are not presently permitted to enter the Easement. In practical terms, this cannot be reversed. Once made it will never be possible to return the relationship between the parties to one where the organisers will not have entered the Easement. Whilst it is possible that the Respondent’s rights in trespass either survive or are recoverable under the undertaking as to damages, this does not erase this aspect of the interlocutory injunction. To an extent, I have already considered this matter. There are cases which suggest that some circumspection may be necessary where what is sought in substance is a mandatory interlocutory injunction.

22    In this case, however, it is difficult to see how the scheme of s 484 could ever be enforced on an interlocutory basis if there were some additional diffidence about granting a mandatory injunction. Similar considerations were held to support the grant of a mandatory injunction in Comet Radiovision Services Ltd v Farnell-Tandberg Ltd (1971) LR 7 RP 168; 3 All ER 231 at 235 where it was said:

Counsel for the defendants submits, for a number of reasons, that nevertheless no interlocutory injunction ought to be pronounced but that matters should be left to remain as they are until the trial of the action. He emphasises in that connection that, although negatively worded, the order which is sought has the effect of a mandatory injunction and that in interlocutory proceedings mandatory injunctions in general are sparingly given. I do not find that submission one of great weight. It seems to me that if the Act is susceptible of interlocutory enforcement at all, as I think it must have been intended to be, any injunction will be of mandatory effect, and indeed the whole scheme of the Act to order people actually to supply goods that they may be unwilling to supply seems to me to take one rather out of the ordinary sphere in which injunctions operate. I do not think the mere objection that the order would be of a mandatory character takes one very far.

23    This reasoning seems applicable to right of entry permits.

24    Bearing all of those matters in mind I conclude that the balance of convenience favours the grant of the injunction now sought. The Court has previously issued injunctions in the current circumstances on 3 occasions in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v CPB Contractors Pty Ltd [2020] FCA 1598; Kirby v JKC Australia LNG Pty Ltd [2015] FCA 1070; 253 IR 382 and Kirby v JKC Australia LNG Pty Ltd (No 2) [2015] FCA 1113. None of these decisions consider whether there is anything special about enforcing s 484 by means of a mandatory injunction. However, for the reasons I have given I am not persuaded that the scheme of right of entry permits or the principles surrounding mandatory injunctions provide a solid basis for refusing the present application. Further, where the Court has granted injunctions on this basis on three prior occasions the interests of consistency militate towards the acceptance of such a jurisdiction.

25    In those circumstances, I will grant the injunction in the terms sought in prayer 5 of the originating application on the proffering of the usual undertaking as to damages. To be clear, I do so on the clear basis that the Respondent will be entitled to compensation should it transpire that it loses an action in trespass as a result of the injunction and, in particular, that it loses an entitlement to damages for that tort without proof of loss.

26    Subsequent to the oral delivery of the reasons contained in the preceding paragraphs this afternoon, it occurred to me that the proposed injunction had been pitched too broadly, so as to restrain the Respondent from delaying, hindering or obstructing entry in accordance with the relevant notices for reasons other than the reason relating to the CEPU’s right to represent the employees’ industrial interests. For example, the injunction sought in the originating application would also restrain the Respondent from preventing an organiser entering because they were afflicted by a serious contagious disease, which may be a perfectly legitimate reason. For that reason, I have decided that the appropriate form of the interlocutory injunction, upon the Applicants, by their counsel, proffering the usual undertaking as to damages, is:

Pursuant to section 23 of the Federal Court of Australia Act 1976 (Cth) and sections 545(1) and (2)(a) of the Fair Work Act 2009 (Cth), the Respondent must not, whether by itself or its servants or agents, refuse, delay, hinder or obstruct entry by the Second to Fifth Applicants to the EnergyConnect project in accordance with the notices served by the Second to Fifth Applicants on the Respondent on 12 or 22 May 2023 by reason only, or for reasons which include, that the Respondent contends that there are no workers whose industrial interests the First Applicant is entitled to represent.

Associate:

Dated:    25 May 2023