FEDERAL COURT OF AUSTRALIA

B.M.D Constructions Pty Ltd v Construction, Forestry and Maritime Employees Union (No 2) [2024] FCA 569

ORDERS

PENAL NOTICE

TO:    CONSTRUCTION, FORESTRY AND MARITIME EMPLOYEES UNION (INCLUDING ITS DELEGATES, OFFICE HOLDERS, EMPLOYEES, OR OTHER REPRESENTATIVES), DYLAN HOWARD, HAYDEN TURNER-DAVEY, JAMIE PORTER, DEAN MATTAS, EBEN COX, MATTHEW VONHOFF, DEAN RIELLY, HOANI EDWARDS, JADE INGHAM, TREVOR SINCLAIR AND JOSHUA THOMPSON.

IF YOU (BEING THE PERSONS BOUND BY THIS ORDER):

(A)    REFUSE OR NEGLECT TO DO ANY ACT WITHIN THE TIME SPECIFIED IN THIS ORDER FOR THE DOING OF THE ACT; OR

(B)    DISOBEY THE ORDER BY DOING AN ACT WHICH THE ORDER REQUIRES YOU NOT TO DO,

YOU WILL BE LIABLE TO IMPRISONMENT, SEQUESTRATION OF PROPERTY OR OTHER PUNISHMENT.

ANY OTHER PERSON WHO KNOWS OF THIS ORDER AND DOES ANYTHING WHICH HELPS OR PERMITS YOU TO BREACH THE TERMS OF THIS ORDER MAY BE SIMILARLY PUNISHED.

UPON THE APPLICANT, BY ITS COUNSEL, UNDERTAKING:

(a)    to submit to such order (if any) as the Court may consider to be just for the payment of compensation, (to be assessed by the Court or as it may direct), to any person, (whether or not that person is a party), affected by the operation of the order or undertaking or any continuation (with or without variation) of the order or undertaking; and

(b)    to pay the compensation referred to in (a) to the person affected by the operation of the order or undertaking.

THE COURT ORDERS THAT:

Injunctive relief

1.    In this order:

(a)    Project means the construction sites established for the Centenary Bridge Upgrade Project at the date of this order, being the fenced construction site running parallel to the western side of the Centennial Highway between Sinnamon Road and Kenmore Road.

(b)    Point of Entry means any point of entry to (or exit from) the Project, and includes any gate, turnstile, entrance way, driveway or door.

(c)    Visitor Induction means the present electronic visitor induction process mandated by BMD for all visitors attending the Project and as amended from time to time.

2.    The First Respondent (whether by its delegates, office holders, employees, or other representatives) and the Second to Tenth Respondents are prohibited from:

(a)    physically obstructing or physically impeding the free movement of goods or people to and from the Project or a Point of Entry;

(b)    aiding, abetting, counselling, procuring or inducing any person to engage in the conduct referred to in orders 2(a) above.

3.    The First Respondent forthwith:

(a)    notify officers and employees of the First Respondent’s Construction and General Division, Queensland and Northern Territory Divisional Branch (CFMEU Qld Branch), and its delegates or agents of the First Respondent who are employed or engaged to work at the Project, of the existence and terms of this order.

(b)    issue and distribute (including but not limited to posting, and maintain for the duration that the order is in force) on the website home pages of the Respondent and of the CFMEU Qld Branch to the Relevant Employees a communication which includes a copy of this order.

4.    The Second to Seventh and Ninth to Twelfth Respondents must not exercise any right of entry at the Project, in accordance with Chapter 3, Division 4 of the Fair Work Act 2009 (Cth), or Part 7 of the Work Health and Safety Act 2011 (Qld) unless they undertake the Visitor Induction.

5.    The injunctive relief granted by the orders in paragraphs 2, 3 and 4 of this order operate until the hearing and determination of the proceedings or further earlier order.

6.    Liberty to apply.

7.    Costs be reserved.

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

ORDERS

THE COURT ORDERS THAT:

Pleadings

1.    The applicant must file and serve a statement of claim and an amended application by 24 June 2024.

2.    The respondents must file and serve a defence and any cross-claim by 22 July 2024.

3.    The applicant must file and serve any reply and a defence to any cross-claim by 13 August 2024.

Mediation

4.    The proceeding be referred to a mediation before Mr Richard Kenzie AC KC, or an otherwise agreed mediator, on a date to be fixed, which must be concluded on or before 30 August 2024.

5.    As to that mediation:

Discovery

6.    The parties are to file and serve any application for discovery by 30 August 2024.

Evidence

7.    By 9 September 2024, the applicant must file and serve:

8.    By 7 October 2024, the respondents must file and serve:

9.    By 14 October 2024, the applicant must file and serve: affidavits of any expert evidence in reply (if any);

10.    The parties’ outlines of evidence:

Process to trial

11.    The applicant must file and serve written submissions, of no more than 12 pages, by 28 October 2024.

12.    The respondents must file and serve written submissions, of no more than 12 pages, by 8 November 2024.

13.    The applicant must file and serve any written submissions in reply, of no more than 6 pages, by 15 November 2024.

14.    By 15 November 2024, the parties must:

15.    The matter be listed for a trial to occur in November 2024, in respect of all issues of liability in the first instance, on dates to be fixed by the Court after consultation with the parties, or on such later dates as the Court may appoint after such consultation. The Court notes that the present estimate of the parties in respect of a liability trial is 5 to 7 sitting days.

16.    Liberty to apply.

17.    Costs be reserved.

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    On 15 May 2024, upon the urgent application of B.M.D Constructions Pty Ltd (B.M.D), I made particular injunctive orders for reasons which were delivered that day: see B.M.D Constructions Pty Ltd v Construction, Forestry and Maritime Employees Union [2024] FCA 528. Materially, those orders were as follows:

UPON THE APPLICANT, BY ITS COUNSEL, UNDERTAKING:

(a)    to submit to such order (if any) as the Court may consider to be just for the payment of compensation, (to be assessed by the Court or as it may direct), to any person, (whether or not that person is a party), affected by the operation of the order or undertaking or any continuation (with or without variation) of the order or undertaking; and

(b)    to pay the compensation referred to in (a) to the person affected by the operation of the order or undertaking.

THE COURT ORDERS THAT:

1.    In this order:

Project means the construction sites established for the Centenary Bridge Upgrade Project at the date of this order, being the fenced construction site running parallel to the western side of the Centennial Highway between Sinnamon Road and Kenmore Road.

Point of Entry means any point of entry to (or exit from) the Project, and includes any gate, turnstile, entrance way, driveway or door.

Visitor Induction means the present electronic visitor induction process mandated by BMD for all visitors attending the Project and amended from time to time.

2.    The First Respondent (whether by its delegates, office holders, employees, or other representatives) and the Second to Tenth Respondents are prohibited from:

(a)    physically obstructing or physically impeding the free movement of goods or people to and from the Project or a Point of Entry;

(b)    aiding, abetting, counselling, procuring or inducing any person to engage in the conduct referred to in orders 2(a) above.

3.    The First Respondent forthwith:

(a)    notify officers and employees of the First Respondent’s Construction and General Division, Queensland and Northern Territory Divisional Branch (CFMEU Qld Branch), and its delegates or agents of the First Respondent who are employed or engaged to work at the Project, of the existence and terms of this order.

(b)    issue and distribute (including but not limited to posting, and maintain for the duration that the order is in force) on the website home pages of the Respondent and of the CFMEU Qld Branch to the Relevant Employees a communication which includes a copy of this order.

4.    The Second to Seventh and Ninth to Twelfth Respondents must not exercise any right of entry at the Project, in accordance with Chapter 3, Division 4 of the Fair Work Act 2009 (Cth), or Part 7 of the Work Health and Safety Act 2011 (Qld) unless they undertake the Visitor Induction.

5.     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 CFMEU Qld Branch.

6.     The Applicant file and serve, on or before noon on 20 May 2024, an outline detailing the number and brief details of contraventions of the Fair Work Act 2009 (Cth) that it alleges the Respondents have committed.

7.    The Respondents file and serve, on or before noon on 21 May 2024:

(a)    such affidavits, if any, as they propose to rely upon for the next case management hearing and return date; together with

(b)    any such outline of submissions, of not more than 10 pages.

8.    The Applicant file and serve, on or before noon on 22 May 2024:

(a)    such affidavits in reply, if any, as they propose to rely upon for the next case management hearing and return date; together with

(b)    any such outline of submissions in reply, of not more than 5 pages.

9.    The proceedings be adjourned to 10:15am on Thursday, 23 May 2024 for case management and the return for consideration of whether on the Applicant’s interlocutory application there should be any extension of injunctive relief granted by this order.

10.    The injunctive relief granted by the orders in paragraphs 2, 3 and 4 of this order operate until midnight on 23 May 2024 or further earlier order.

2    In so doing, and as [10] reveals, I followed a practice evident in the judgment of Jessup J in Williams v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (2009) 178 IR 458 by providing for a short life to the interim injunction. That was on the particular bases that the respondent union had only briefly beforehand been served, and that natural person respondents had yet to be served.

3    An appearance has now been made by Mr Clift of counsel, not just, as before, on behalf of the union, but now also on behalf of each of the natural person respondents.

4    For its part, B.M.D, by its counsel Mr Murdoch KC and Mr Smith, has repeated, for the purposes of seeking continuance of the interim orders, the usual undertaking as to damages. As to that undertaking, it is evident from the material read on behalf of B.M.D, in particular a recent annual report of a corporate group of which B.M.D forms part, that B.M.D is a company of substance, as I had apprehended in the earlier reasons for judgment.

5    What follows must be read in conjunction with those earlier reasons for judgment.

6    It is convenient to now set out some provisions from the two key statues relevant in this proceeding. Sections 499, 500, 539 and 545 of the Fair Work Act 2009 (Cth) (Fair Work Act) provide:

499    Occupational health and safety requirements

A permit holder must not exercise a State or Territory OHS right unless he or she complies with any reasonable request by the occupier of the premises to comply with an occupational health and safety requirement that applies to the premises.

Note 1:    This section is a civil remedy provision (see Part 4 - 1).

Note 2:    The FWC may deal with a dispute about whether the request is reasonable (see subsection 505(1)).

500    Permit holder must not hinder or obstruct

A permit holder exercising, or seeking to exercise, rights in accordance with this Part must not intentionally hinder or obstruct any person, or otherwise act in an improper manner.

Note 1:    This section is a civil remedy provision (see Part 4 - 1).

Note 2:    A permit holder, or the organisation to which the permit holder belongs, may also be subject to an order by the FWC under section 508 if rights under this Part are misused.

Note 3:    A person must not intentionally hinder or obstruct a permit holder, exercising rights under this Part (see section 502).

539    Applications for orders in relation to contraventions of civil remedy provisions

(1)    A provision referred to in column 1 of an item in the table in subsection (2) is a civil remedy provision .

(2)    For each civil remedy provision, the persons referred to in column 2 of the item may, subject to sections 540 and 544 and Subdivision B, apply to the courts referred to in column 3 of the item for orders in relation to a contravention or proposed contravention of the provision, including the maximum penalty referred to in column 4 of the item.

Note 1:    Civil remedy provisions within a single Part may be grouped together in a single item of the table.

Note 2:    Applications cannot be made by an inspector in relation to a contravention of a civil remedy provision by a person in certain cases where an undertaking or compliance notice has been given (see subsections 715(4) and 716(4A)).

Note 3:    The regulations may also prescribe persons for the purposes of an item in column 2 of the table (see subsection 540(8)).

Note 4:    See section 557A in relation to a serious contravention of a civil remedy provision.

…

…

545    Orders that can be made by particular courts

Federal Court and Federal Circuit and Family Court of Australia (Division 2)

(1)    The Federal Court or the Federal Circuit and Family Court of Australia (Division 2) 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.

Note 1:    For the court’s power to make pecuniary penalty orders, see section 546.

Note 2:    For limitations on orders in relation to costs, see section 570.

Note 3:    The Federal Court and the Federal Circuit and Family Court of Australia (Division 2) may grant injunctions in relation to industrial action under subsections 417(3) and 421(3).

Note 4:    There are limitations on orders that can be made in relation to contraventions of subsection 463(1) or (2) (which deals with protected action ballot orders) (see subsection 463(3)).

(2)    Without limiting subsection (1), orders the Federal Court or Federal Circuit and Family Court of Australia (Division 2) may make include the following:

(a)    an order granting an injunction, or interim injunction, to prevent, stop or remedy the effects of a contravention;

(b)    an order awarding compensation for loss that a person has suffered because of the contravention;

(c)    an order for reinstatement of a person;

(d)    an order requiring a person to comply, either wholly or partly, with a notice (other than an infringement notice) given to the person by an inspector or the Fair Work Ombudsman.

Eligible State or Territory courts

(3)    An eligible State or Territory court may order an employer to pay an amount to, or on behalf of, an employee of the employer if the court is satisfied that:

(a)    the employer was required to pay the amount under this Act or a fair work instrument; and

(b)    the employer has contravened a civil remedy provision by failing to pay the amount.

Note 1:     For the court’s power to make pecuniary penalty orders, see section 546.

Note 2:    For limitations on orders in relation to costs, see section 570.

(3A)    An eligible State or Territory court may order an outworker entity to pay an amount to, or on behalf of, an outworker if the court is satisfied that:

(a)    the outworker entity was required to pay the amount under a modern award; and

(b)    the outworker entity has contravened a civil remedy provision by failing to pay the amount.

Note 1:    For the court’s power to make pecuniary penalty orders, see section 546.

Note 2:    For limitations on orders in relation to costs, see section 570.

When orders may be made

(4)    A court may make an order under this section:

(a)    on its own initiative, during proceedings before the court; or

(b)    on application.

Time limit for orders in relation to underpayments

(5)    A court must not make an order under this section in relation to an underpayment that relates to a period that is more than 6 years before the proceedings concerned commenced.

7    Sections 117, 118, 119 and 128 of the Work Health and Safety Act 2011 (Qld) (WHS Act) provides:

117    Entry to inquire into suspected contraventions

(1)    A WHS entry permit holder may enter a workplace for the purpose of inquiring into a suspected contravention of this Act or the Electrical Safety Act 2002 that relates to, or affects, a relevant worker.

(2)    The WHS entry permit holder must reasonably suspect before entering the workplace that the contravention has occurred or is occurring.

118    Rights that may be exercised while at workplace

(1)    While at the workplace under this division, the WHS entry permit holder may do all or any of the following in relation to the suspected contravention of this Act or the Electrical Safety Act 2002—

(a)    inspect any work system, plant, substance, structure or other thing relevant to the suspected contravention;

(b)    consult with the relevant workers in relation to the suspected contravention;

(c)     consult with the relevant person conducting a business or undertaking about the suspected contravention;

(d)    require the relevant person conducting a business or undertaking to allow the WHS entry permit holder to inspect, and make copies of, any document that is directly relevant to the suspected contravention and that—

(i)    is kept at the workplace; or

(ii)    is accessible from a computer that is kept at the workplace;

(e)    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;

(f)    remain at the workplace for the time necessary to achieve the purpose of the entry, subject to section 126.

(2)    Also, the relevant person conducting the business or undertaking is not required under subsection (1)(d) to allow the WHS entry permit holder to inspect or make copies of a document if to do so would contravene a law of the Commonwealth or a law of a State.

(3)    A relevant person conducting a business or undertaking must not, without reasonable excuse, refuse or fail to comply with a requirement under subsection (1)(d).

WHS civil penalty provision.

Maximum penalty—100 penalty units.

(4)    Subsection (3) places an evidential burden on the defendant to show a reasonable excuse.

Notes—

1    At least 24 hours notice is required for an entry to a workplace to inspect employee records or other documents held by someone other than a person conducting a business or undertaking. See section 120.

2    The use or disclosure of personal information obtained under this section is regulated under the Privacy Act 1988 of the Commonwealth.

119    Notice of Entry

(1)    A WHS entry permit holder must, as soon as is reasonably practicable after entering a workplace under this division, give notice of the entry and the suspected contravention, as prescribed by regulation, to:

(a)    the relevant person conducting a business or undertaking; and

(b)    the person with management or control of the workplace.

(2)    Subsection (1) does not apply if to give the notice would:

(a)    defeat the purpose of the entry to the workplace; or

(b)    unreasonably delay the WHS entry permit holder in an urgent case.

(3)    Subsection (1) does not apply to an entry to a workplace under this division to inspect or make copies of documents mentioned in section 120.

128    Work health and safety requirements

(1)    A WHS entry permit holder must not exercise a right of entry to a workplace under division 2 or 3 unless he or she complies with any reasonable request by the relevant person conducting a business or undertaking or the person with management or control of the workplace to comply with—

(a)    any work health and safety requirement that applies to the workplace; and

(b)    any other legislated requirement that applies to that type of workplace.

WHS civil penalty provision.

8    In those earlier reasons for judgment, I offered, by reference to the then-evidence, a description of a major public works project, currently underway, to duplicate an existing bridge across the Brisbane River, known as the Centenary Bridge. That bridge connects across the river to Jindalee and further afield, including, notably, as a matter of judicial notice, the major population centres on the western edge of Brisbane and also then into the city of Ipswich. Again, as a matter of judicial notice, it connects a related major transport corridor from those locales across the Brisbane River.

9    B.M.D is a joint venturer in the construction of that bridge duplication. It is contracted by the State to undertake those works. On any view, the project is a major State public infrastructure project, and thus its timely completion is of considerable public importance.

10    As I related in the earlier reasons for judgment, particular conduct occurred on 14 May which, in conjunction with what was then revealed of earlier conduct at the project site, persuaded me that a sufficient case had been established for the making of the interim orders as set out.

11    Of those orders, order 4, which must of course be read with the definition clause in the order, is controversial in terms of whether B.M.D has established a sufficient case to warrant its continuance pending the hearing and determination of these proceedings or further earlier order.

12    I have had the benefit, for the purposes of determining whether to continue any of the relief granted on 15 May, of additional evidence beyond that upon which I made the orders on 15 May. That evidence provides amplification of what one might term anterior conduct; by that I mean conduct at the project site in April. It also provides insight, in the evidence read on behalf of the respondents, in relation to a practice which once was followed by B.M.D in relation to officers and officials of the union with respect to the access of those persons to the project site when seeking, or at least purporting to seek, entry in the exercise of rights of access granted under the WHS Act. Suffice it to say, and notwithstanding what on the evidence appears to have been formal policy on the part of B.M.D, a person then having managerial responsibility in respect of the project site was disposed not to require a site induction on each and every visit.

13    That particular practice, as I have mentioned, on the evidence was not in accordance with B.M.D’s corporate policy and entailed a degree of managerial discretion. B.M.D has, since events in late April, been firm in its insistence on adherence to its policy. Its policy is one which contemplates that each and every entrant to the project site, no matter how senior, in terms of corporate hierarchy, as between or within the joint venturers, must undergo site induction on each occasion, and that is so, even though the person concerned may have undertaken, on an earlier visit, an earlier site induction.

14    On the evidence, the purpose of the policy and of B.M.D’s disposition to enforce, insofar as it is within its remit, adherence to that policy, lies in B.M.D’s apprehension of its responsibilities, both at common law as well as under the WHS Act.

15    At common law, and in modern times, it has been said that “[t]he 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”: McLean v Tedman (1984) 155 CLR 306 (McLean v Tedman), at 313, in the joint judgment of Mason, Wilson, Brennan and Dawson JJ. What is said there in respect of an employer as to accident prevention responsibility descends upon B.M.D not just insofar as at the project site it is an employer. It also descends upon B.M.D insofar as, on the evidence, it is the entity which controls that project site in terms of access to, and activity on, that site.

16    Thus, insofar as B.M.D pointed to the common law as a source of an obligation to prevent accidents, it has a firm foundation. That is not to say that the common law obliges B.M.D to have a site induction procedure. That is an issue for determination at trial. Indeed, it may be putting it too high to describe it as “obliges it to have such a procedure”, as opposed to “admits of such a procedure being one which could be regarded as a reasonable response to a common law obligation”.

17    As to matters of statute law, B.M.D is subject to particular obligations of site safety and accident prevention under the WHS Act. Once again, in terms, a site induction process is not mandated, but B.M.D’s case is that it need not be mandated, only that it can be regarded as a necessary and sufficient response to its obligations under the WHS Act to have such a site induction policy and to enforce the same. Once again, whether or not that is so is a subject for final determination at trial.

18    For present purposes, I am well satisfied that B.M.D has a sufficient case in terms of the imposition and enforcement of a site induction policy for that to, in terms of s 499 of the Fair Work Act, ground a reasonable request in respect of those permit holders who would seek to enter the site to comply with the state WHS Act.

19    Insofar as, on the authorities, there is a need to measure the strength of an applicant's case before granting injunctive relief pre-trial which has a mandatory quality, the sources called in aid – namely the common law and the state WHS Act – by B.M.D persuade me that its case should be regarded as a reasonably strong one. That is not to foreclose, I emphasise, the subject for trial, only to say that at an impressionistic level and on the evidence, and insofar as considerations of the kind discussed by Cooper J, with the agreement of Kneipp and Shepherdson JJ, in Active Leisure (Sports) Pty Ltd v Sportsman’s Australia Ltd (1991) 1 Qd R 301, as to the need for a strong case where there is a mandatory quality in interlocutory relief, I am well satisfied that B.M.D’s case has the requisite strength.

20    That proposition, it must be said, was gainsaid on behalf of the respondents. But, looking at the state WHS Act and McLean v Tedman, I rather think that it would be difficult to describe B.M.D’s case in respect of the imposition of a site entry induction requirement as weak on the evidence. In this case, there is a dynamic worksite at the Centenary Bridge duplication site entailing a continuously changing mix of entrants, site activity, related use of machinery, and concrete pouring. It is not at all hard to see a risk to health, life and comfort by an unregulated onsite presence - unregulated in the sense of persons entering without there being some record of their presence, and persons entering without at least having the benefit of a site induction of the kind which has been evidenced. Once again, that is but an impressionistic view on the evidence to hand, but that is all that is necessary for present purposes.

21    In making those observations, I am, of course, aware that recently a Full Court of this Court in Construction, Forestry, Mining and Energy Union v Fair Work Ombudsman [2024] FCAFC 1 (CFMEU v Fair Work Ombudsman), at [17] to [40], regarded requests based on the completion of site induction and site attendance registers as reasonable for the purposes of s 499 of the Fair Work Act. But I remind myself that, whilst that was a conclusion reached in that case, it was necessarily informed by the circumstances of that case. It is just that the circumstances of this case persuade me that B.M.D has a case which, on the evidence to hand, has a strong likelihood of persuading whoever comes to try the case to reach a like conclusion as was reached on the evidence in CFMEU v Fair Work Ombudsman.

22    The evidence discloses that the site induction process is relatively abbreviated and adapted to the digital age. By that, I mean the site induction process on the evidence, including in that regard site attendance, is one which is able to be undertaken, or largely undertaken, via the use of a person’s mobile telephone. On the evidence, it is also a relatively brief process, a matter of some minutes rather than hours.

23    Also on the evidence, it is a process which can be undertaken at the project site. That is not to say that there is not some degree of remoteness from an entry point where induction would occur from particular parts of the project site, but the induction, nonetheless, is one which, on the evidence, occurs onsite shortly after a point of entry.

24    I mention that because part of the submissions made on behalf of the respondents entailed an examination of what might be meant under s 128(2) of the WHS Act. It was put on behalf of the respondents that an induction requirement which would see a would-be entrant under a WHS entry permit having to undergo induction at a site remote from the work site would not, in terms of s 128(2), be reasonable, or it would unduly delay the exercise of the right of entry. It might first be said that the relevant issue for present purposes is whether B.M.D, as part of their application for interlocutory injunctive relief, have established prima facie, amongst other things, that the requirement for site induction, including site attendance and exit signification, is a reasonable request in terms of s 499 of the Fair Work Act.

25    However that may be, some insight into the State Parliament’s contemplation with respect to s 128(2) is indeed, as was submitted on behalf of the respondents, offered by the explanatory memorandum issued in respect of that provision: see Explanatory Notes, Work Health and Safety and Other Legislation Amendment Bill 2023 (Qld). One sees there, at p 10, that, in its present form, s 128(2) had as a purpose providing clarity as to what was not reasonable if complying would unduly delay or unreasonably hinder or obstruct a permit holder under that Act exercising a right of entry. The example offered, namely “requiring off-site induction at a location far from where entry is sought or excessive or unnecessary usage of exclusion zones”, does to look to be congruent with the language of s 128 of the WHS Act. It may also be that like sentiments may make a request not reasonable for the purposes of s 499 of the Fair Work Act. That would not be because of the meaning and effect of State law. Rather, it would just be that that type of requirement might well, for the purposes of federal law, namely s 499, be regarded as not a reasonable one.

26    Suffice it to say, for present purposes, and as a matter of impression on the evidence, B.M.D’s case that its particular site induction requirements, at the place where they occur, strikes me as a strong one for a conclusion that the requirement is reasonable. Over again, that is not necessarily concluded view one would reach in a trial. But it is sufficient, in terms of that aspect, for B.M.D to have established a prima facie case of sufficient strength.

27    Another consideration, and one which has troubled me particularly, flows from the dynamic nature of the construction site, and, in turn, one might apprehend a responsibly dynamic nature of site induction. There is a degree of future prognostication with respect to an injunction in the present form or at least one which, in the definition of visitor induction, has a definition: “the present electronic visitor induction process mandated by B.M.D for all visitors attending the Project and as amended from time-to-time”. It is the “from time-to-time” aspect which, obviously enough, involves a degree of prognostication as to future events. Inevitably, that must be so with respect to a construction site of this nature.

28    Further, it is quite apparent to me, on the evidence to hand, that there is a disposition on the part of the respondents not to comply with site induction requirements. So that, with respect to past behaviours, they are something of a predictor, necessarily, for what might occur into the future, up to and including trial. I have viewed, in particular, video footage, as described in affidavit evidence, of conduct in late April of this year at the project site where endeavours were made to seek compliance with site induction, which were treated with apparent disdain. Taken in conjunction with the evidence which I described as to events on 14 May, that has informed me as to the likelihood in the future of a disposition not to comply.

29    In turn, that has led me to consider the ambit of the power conferred on the Court by s 545 of the Fair Work Act. It is that section, in my view, which is the most pertinent in relation to source of power with respect to the controversial order sought, namely, continuance of order 4.

30    It has been said of s 545(1) of the Fair Work Act that it is limited to making appropriate preventive remedial and compensatory orders. The High Court has highlighted the “appropriate” aspect of the power: see Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2018) 262 CLR 157, at [23]. It was there observed by Kiefel CJ:

The Court is therefore restricted to making the kinds of orders which are capable of properly being seen as appropriate to be made by the court in the exercise of its jurisdiction.

See also, at [110] per Keane, Nettle and Gordon JJ. Kiefel CJ also observed of s 545(2), at [25], that the examples given are:

[d]irected to preventing contraventions or addressing or remedying the effects of a contravention.

31    Notably, s 545(2)(a) grants power to make an order granting an interim injunction “to prevent, stop, or remedy the effects of a contravention”.

32    To secure an interim injunction of the kind referred to in that section, it is not necessary that a contravention be proved, only that a case of sufficient strength be established in order to grant an interim injunction, having regard also to the balance of convenience. I am well persuaded here, having regard to conduct which occurred in late April, and on 14 May, that there is a case of sufficient strength to warrant the granting, up to and including trial or further earlier order, injunctive relief as set out in paragraph 4 on a preventative basis. In other words, to prevent contravention of the statute.

33    That is so even though there may be compensatory orders attracted if the contraventions alleged come to be proved at trial. It is also so even though the Court may be persuaded to impose pecuniary penalties in respect of proved contraventions. Those penalties do have as their primary, if not sole purpose, deterrence: Australian Building and Construction Commission v Pattinson (2022) 274 CLR 450. The existence of such penalties as a contingency has not, on the evidence to date, deterred conduct which prima facie is in contravention of s 499.

34    None of the foregoing is in any way to indicate an absence of understanding, on my part, as to a concern held by the union and natural person respondents about site safety. It has been a feature of trade unionism, from its earliest days, to have just such concerns and they are legitimate concerns. They are also now societal concerns as reflected in the obligations under the WHS Act, which are those of B.M.D to which I have earlier referred.

35    One finds in authority, and I referred to such authority recently in Teys Australia Beenleigh Pty Ltd v Australasian Meat Industry Employees’ Union [2024] FCA 259, a balancing as between rights under common law and, for that matter, obligations under statute of a site occupier against rights of entry informed by a statutory purpose of assuring workplace health and safety. Such a balance is evident in s 499. And that is so whatever State WHS entry requirements might be. It is just that, in the particular circumstances, thus far evidenced, it seems to me that B.M.D has, allowing for that balance, made a case of some strength that its requirements are reasonable in terms of the balance mentioned in the authorities.

36    So I am not at all persuaded that damages, compensation or pecuniary penalties would alone or in conjunction be an adequate remedy in respect of any respondent.

37    As to what might be the pecuniary penalties, B.M.D has, in accordance with directions made last week, offered a preliminary overview of the contraventions it proposes to allege. I summarise that overview in the below table:

38    I have taken those particular presently alleged contraventions into account in assessing B.M.D’s case and also a related need, which I regard as established, for interlocutory injunctive relief. I have also taken into account expressly that B.M.D will, at an appropriate occasion, seek to formalise an application for the amendment of the originating application so as to seek final relief of a like kind to that found in order 4. Obviously enough, any such final relief would necessarily be keyed to the life of the project.

39    With respect to the granting of interlocutory injunctive relief, which one might regard as falling within the term ‘interim injunction’ in s 545(2)(a), it is necessary to remember that that section is a source of power quite independent from whatever might be the power of the Court, as a court of equity, in equity: see, as to this, United Group Resources Pty Ltd v Calabro (No. 7) (2012) 203 FCR 247, at [47] to [49] and [52] and [54] (per McKerracher J); see also Director of the Fair Work Building Industry Inspectorate v Cartledge [2014] FCA 1047, at [105] to [111] as to the nature of the power.

40    On the present evidence, although no particular precision can be given to the impact of events of 14 May, it is inherently likely that some delay may well already have been visited upon progress towards the contemplated completion of this important public infrastructure project. I have taken that into account as well that further evidence about the impact of events to date.

41    For the avoidance of doubt, I have taken into account the existence of proceedings in the Queensland Industrial Relations Commission (QIRC) and a disposition by a State Industrial Commissioner, at a much earlier stage, not to grant particular relief in the nature of injunctive relief, similar in part in kind at least to that sought in order 4’s continuance. As to that, events have well and truly moved on factually as to what has occurred onsite. Further, the absence of relief in the QIRC appears to have been influenced also by some apprehension on the part of the Industrial Commissioner as to the existence of power to grant such relief, as well as the proximity, as then apprehended, of an early trial date in that Commission. Suffice it to say, an outcome in the QIRC, in those circumstances, although part of the history, is of no determinative value in terms of whether to grant leave in this Court.

42    As to the other injunctive relief granted on 15 May, there is no evidence of any further blockading of the site. In a sense, that is a comfort in that any such evidence would suggest an absence of adherence to the orders made on that day. However that may be, the events of that day are sufficiently disconcerting, in terms of conduct and passions, to persuade me that there is a need for a continuance of other injunctive relief granted, up to and including trial and determination of the proceedings or further earlier order.

43    I make those observations notwithstanding an absence of active opposition because it cannot be said on behalf of the respondents that there was active consent to such orders. It is just that a need for a more lengthy explanation than that offered in the earlier reasons for judgment, in conjunction with today, is abbreviated because of an absence of active opposition. So I am persuaded also that the other injunctive relief sought should be continued.

Associate:    

Dated:    29 May 2024

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