Federal Court of Australia

UGL Rail Services Pty Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2024] FCA 860

ORDERS

NOTING THE PROVISION OF THE USUAL UNDERTAKING AS TO DAMAGES BY THE APPLICANT, THE COURT ORDERS THAT:

1.    Until further order of the Court, and pursuant to s 23 of the Federal Court of Australia Act 1976 (Cth), the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia be restrained from taking further steps in Fair Work Commission Matter No. C2024/3226.

2.    The matter be remitted to the National Operations Registry for urgent allocation to a docket Judge.

3.    There be liberty to apply.

4.    Costs be reserved.

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

REASONS FOR JUDGMENT

COLLIER J:

1    Before the Court is an interlocutory application filed by the applicant, UGL Rail Services Pty Ltd (the applicant or UGL), on 11 July 2024. By that interlocutory application, the applicant seeks the following relief:

1.    ORDERS pursuant to Federal Court of Australia Act 1976 s.23 restraining the Respondent until further order from taking further steps in Fair Work Commission Matter No. B2024/3226.

2.    Orders pursuant to Federal Court Rules 2011 r.1.39 shortening the time for service of the Application.

3.    Orders pursuant to Federal Court Rules 2011 r.10.24 allowing substituted service of the application on the Respondent by email.

4.    Directions towards the final hearing of the claim.

5.    Costs reserved.

(errors in original)

2    The interlocutory relief sought relates to the Originating Application filed 11 July 2024 in which the applicant seeks:

1.    AN ORDER prohibiting the Respondent from bringing or pursuing any claim for payment of wages of members of the Respondent employed by the Applicant for work on 30 April 2024 and 1 May 2024 on the Cross River Rail Project at construction sites located at Roma Street, Woolloongabba and Northern Portal.

2.    A DECLARATION that employees of the Applicant covered by the UGL and CEPU Electrical Division Queensland Regional Enterprise Agreement 2020-2024 who failed to attend for work on 30 April 2024 and 1 May 2024 on the Cross River Rail Project at construction sites located at Roma Street, Woolloongabba and Northern Portal have no entitlement to wages for their period of non-attendance.

Background

3    The primary relief sought by the applicant in its interlocutory application relates to arbitral proceedings currently before the Fair Work Commission (Fair Work Commission Matter No. C2024/3226) pursuant to the dispute settlement procedure under cl 2.1 of the Enterprise Agreement between UGL and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (Enterprise Agreement).

4    The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the respondent or CEPU) commenced the arbitral proceedings against the applicant in the Fair Work Commission on 21 May 2024, seeking payment for wages for its members for days during which no work was performed at relevant worksites. The respondent’s claim is referable to cl 6.10 of the Enterprise Agreement. Before the Fair Work Commission the CEPU contends that there was no application for leave without pay by its members, with the result that there was no legal basis for non-payment of wages in respect of days including Tuesday 30 April 2024 and Wednesday 1 May 2024 (Relevant Days).

5    The parties agreed that, on the Relevant Days, UGL workers, also being members of the CEPU (Relevant Workers):

    attended the Cross River Rail worksites at Roma Street, Woolloongabba, and the Northern Portal (Relevant Worksites);

    were required to work on the Relevant Days at UGL workplaces which were located inside the Relevant Worksites (Relevant UGL workplaces);

    were required to pass through the ingress points of the Relevant Worksites to reach the Relevant UGL workplaces;

    on the Relevant Days, were faced with chains and padlocks having been applied to all ingress points at the Relevant Worksites by third parties, which chains and padlocks remained in place until the morning of Thursday 2 May 2024; and

    were informed by UGL management that the Relevant Worksites were open, and that if they did not enter, they would not be paid.

6    The parties agreed that the Relevant Workers did not enter the Relevant Worksites (or attend the Relevant UGL workplaces) and perform work on subsequent days, being Thursday 2 May 2024 and Friday 3 May 2024.

7    They further agreed that the Relevant Workers were not paid wages in respect of the Relevant Days.

8    It is not alleged that any members of the CEPU were responsible for applying the chains and padlocks to the ingress points at the Relevant Worksites or were involved in their application.

9    Where the parties disagree is whether the Relevant Workers ‘attended for work’ on the Relevant Days for the purposes of s 19(1)(c) of the Fair Work Act 2009 (Cth) (Fair Work Act). That provision reads:

Meaning of industrial action

(1)    Industrial action means action of any of the following kinds:

…

(c)    a failure or refusal by employees to attend for work or a failure or refusal to perform any work at all by employees who attend for work;

10    The reason that the Relevant Workers did not enter the Relevant Worksites on the Relevant Days is in dispute. In summary:

    UGL contends that the failure of the Relevant Workers to attend for work at the UGL workplaces on the Relevant Days, was a failure to attend for work in concert, which constituted unprotected industrial action within the meaning of s 19(1)(c) of the Fair Work Act, supported by the decision of the Full Court in Adams v Director of the Fair Work Building Industry Inspectorate (2017) 258 FCR 257; [2017] FCAFC 228 (Adams).

    The CEPU contends that the Relevant Workers failed to present at the Relevant UGL workplaces inside the Relevant Worksites on the Relevant Days, because they were physically unable to do so due to the chains and padlocks having been applied to all ingress points at the Relevant Worksites.

11    Materially, ss 474 and 475 of the Fair Work Act provide:

474 Payments not to be made relating to certain periods of industrial action

(1)     If an employee engaged, or engages, in industrial action that is not protected industrial action against an employer on a day, the employer must not make a payment to an employee in relation to:

(a)     if the total duration of the industrial action on that day is at least 4 hours--the total duration of the industrial action on that day; or

(b)     otherwise--4 hours of that day.

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

…

475 Accepting or seeking payments relating to periods of industrial action

(1)     An employee must not:

(a)     accept a payment from an employer if the employer would contravene section 474 by making the payment; or

(b)     ask the employer to make such a payment.

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

…

submissions OF THE PARTIES

12    In summary, the applicant submitted that:

    The Relevant Workers did not attend for work on the Relevant Days.

    The motive for failing or refusing to attend for work is irrelevant to the failure or refusal itself. It does not matter that the Relevant Workers failed to attend for work because they were physically obstructed from doing so if they knew that another or others would probably be failing or refusing to attend for or to perform work: Adams at [92].

    An argument that the Relevant Workers were physically prevented from attending for work may equally apply to employees who were members of the union organising the industrial action.

    The dispute between UGL and the CEPU is not arbitrable before the Fair Work Commission as it concerns whether a civil penalty provision has been contravened – namely s 19 of the Fair Work Act – which provision requires determination only by the exercise of judicial power.

    In weighing the balance of convenience, the interlocutory orders would prevent a multiplicity of proceedings leading to potentially conflicting results in various jurisdictions, namely the Fair Work Commission and the Federal Court.

13    The respondent submitted in summary that:

    The proper characterisation of the interlocutory relief sought by the applicant is in the nature of an anti-suit injunction to arrest the arbitration due to take place before the Fair Work Commission on 8 and 9 August 2024.

    The Relevant Workers did attend for work on the Relevant Days, but were physically prevented from carrying out their duties.

    The definition of “industrial action” under s 19 of the Fair Work Act is only intended to cover actions that have an “industrial” character: Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2015] FCAFC 25 at [118]-[120].

    Where the conduct cannot be classified as “industrial action” under s 19 of the Fair Work Act, the prohibitions on payment under ss 474 and 475 will not apply.

    In any event, it should be left for the Fair Work Commission to determine whether it has jurisdiction to arbitrate the dispute.

    In weighing the balance of convenience:

•    the interlocutory orders sought will have the effect of increasing the time and costs to resolve the dispute, potentially delaying the receipt of wages by the Relevant Workers from receiving wages for longer;

•    an alleged prospect of a multiplicity of disputes should not hold significant weight as the applicant is responsible for multiple disputes being brought; and

•    the most desirable course is for the specialist industrial relations tribunal, which the parties have agreed should resolve disputes between them, to carry out that function.

Consideration

14    This matter is attended by some urgency. Arbitral proceedings are currently listed to come before the Fair Work Commission on 8 and 9 August 2024.

15    The law regarding a grant of an interlocutory injunction is well-settled. In Australian Broadcasting Corporation v O’Neill [2006] HCA 46; (2006) 227 CLR 57, Gleeson CJ and Crennan J observed at [19] that:

19.    …In all applications for an interlocutory injunction, a court will ask whether the plaintiff has shown that there is a serious question to be tried as to the plaintiff’s entitlement to relief, has shown that the plaintiff is likely to suffer injury for which damages will not be an adequate remedy, and has shown that the balance of convenience favours the granting of an injunction.

(emphasis added)

16    Similarly in that case Gummow and Hayne JJ observed:

65.    The relevant principles in Australia are those explained in Beecham Group Ltd v Bristol Laboratories Pty Ltd. This court (Kitto, Taylor, Menzies and Owen JJ) said that on such applications the court addresses itself to two main inquiries, and continued:

The first is whether the plaintiff has made out a prima facie case, in the sense that if the evidence remains as it is there is a probability that at the trial of the action the plaintiff will be held entitled to relief … The second inquiry is … whether the inconvenience or injury which the plaintiff would be likely to suffer if an injunction were refused outweighs or is outweighed by the injury which the defendant would suffer if an injunction were granted.

    By using the phrase “prima facie case”, their Honours did not mean that the plaintiff must show that it is more probable than not that at trial the plaintiff will succeed; it is sufficient that the plaintiff show a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending the trial. That this was the sense in which the court was referring to the notion of a prima facie case is apparent from an observation to that effect made by Kitto J in the course of argument. With reference to the first inquiry, the court continued, in a statement of central importance for this appeal:

How strong the probability needs to be depends, no doubt, upon the nature of the rights [the plaintiff] asserts and the practical consequences likely to flow from the order he seeks.

(footnotes omitted, emphasis added)

17    At the hearing before me, Counsel for the CEPU characterised the present proceedings as an anti-suit injunction, being proceedings where a party to foreign proceedings (or anticipated foreign proceedings) seeks orders restraining another party from furthering those foreign proceedings (see S Jacobs Injunctions: Law and Practice Thomson Reuters, 2023 at [9.100]). As O’Callaghan J explained in Kraft Foods Group Brands LLC v Bega Cheese Ltd [2018] FCA 549 at [61]-[63], a court’s power to prevent its processes being abused, or interfered with, authorises the grant of anti-suit injunctions, and that the power to grant anti-suit injunctions is not confined to defined and closed categories (see also CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345 at 345, 392-393).

18    That this Court has power to make an interlocutory restraining order in the nature of an anti-suit injunction where an applicant seeks to restrain an arbitral hearing by the Fair Work Commission was made clear in the decisions of Bromberg J in Teys Australia Beenleigh Pty Ltd v Australasian Meat Industry Employees Union [2015] FCA 1033 and Snaden J in National Tertiary Education Union v Monash University [2022] FCA 1368. In my view issues relevant to whether this Court ought exercise its discretion to grant the interlocutory relief sought in the present case, where the proceedings may be characterised as an anti-suit injunction application, should properly be considered in the course of determining where the interests of justice lie. I will return to this issue later in this judgment.

Is there a serious question to be tried?

19    The proceedings before the Fair Work Commission concern claimed failure by UGL to pay wages, in contravention of the Enterprise Agreement. Contravention of an enterprise agreement gives rise to a civil penalty: s 50 of the Fair Work Act. However, ss 474 and 475 of the Fair Work Act – which are also civil remedy provisions – prohibit payment of wages to workers where they have engaged in unprotected industrial action.

20    Section 539 of the Fair Work Act identifies standing, jurisdiction and maximum penalties referable to civil remedy provisions. Orders for civil penalties under s 50 can only be determined and made by the Federal Court, the Federal Circuit and Family Court of Australia (Division 2) or an eligible State or Territory Court. Orders for civil penalties under ss 474 or 475 can only be determined and made by the Federal Court or the Federal Circuit and Family Court of Australia (Division 2). The Fair Work Commission has no jurisdiction to make orders in relation to a contravention or proposed contravention of those provisions, including maximum penalties.

21    Further, s 739(5) of the Fair Work Act provides that the Fair Work Commission must not make a decision that is inconsistent with the Act, or a fair work instrument that applies to the parties.

22    It is not in dispute that no work was performed by the Relevant Workers at the Relevant UGL workplaces on the Relevant Days. The evidence conflicts as to why the Relevant Workers did not perform their work on the Relevant Days. The agreed facts disclose that Relevant Workers were present at the ingress points of the Relevant Worksites on the Relevant Days. Whether they attended for work for the purposes of s 19(1)(c) of the Fair Work Act is in dispute. This is a legal question which requires determination of legal principles, and resolution of factual disputes between the parties.

23    The CEPU referred the Court to Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2015) 230 FCR 298; [2015] FCAFC 25 ([2015] FCAFC 25), where the Full Court relevantly said:

118.    The note in s 19 of the FW Act indicates that the legislature intended The Age case to guide the determination of whether action is “industrial action”. But the fact that a note is part of the Act does not mean that it can govern the meaning of the Act. This is particularly the case here because, contrary to what is suggested by the note in s 19, the Full Bench did not hold that action would never be industrial in character if it stood outside the area of disputation and bargaining. As the Full Bench observed in The Age case, political strikes constitute such action. In Laing French J observed at 31:

Industrial action may be caught by the section notwithstanding that it is intended to send a signal or communicate some message other than about a dispute with the employer. It is not necessary for the application of s 127 [of the Workplace Relations Act 1996 (Cth)] that it relate to an industrial dispute if it relates to work regulated by an award or a certified agreement. Thus employees might stop work without the authority of their employer and in breach of their contract of employment in order to attend a rally at Parliament House or some other form of demonstration or public meeting to express views about some issue not arising out of their relationship to their employer. In such a case where their work is regulated by an award or a certified agreement, s 127 is capable of application.

119.    These comments were made in relation to the WR Act, but the definition of “industrial action” in the FW Act is not relevantly different.

120    Ultimately, the question posed by s 19(1) of the FW Act is whether action can be said to be “industrial” in character. If action takes place outside the area of disputation and bargaining, that is relevant in determining whether the action is “industrial”, but it is not determinative.”

(emphasis added)

24    UGL argues that, although the CEPU contended that the employees were “prevented” from attending work, that contention could equally apply to the union members who organised the bars to the ingress points at the Relevant Worksites. I am not necessarily persuaded that this is the case – as the Full Court pointed out in [2015] FCAFC 25 at [120], a question is whether the action of the Relevant Workers was “industrial” in character, and circumstances where workers state that they are unable to perform work because of chains and padlocks barring entry to a relevant worksite does not immediately suggest industrial action by them.

25    However, and perhaps more persuasively, UGL also argues that the fact that the Relevant Workers may have appeared at the entrance to the Relevant Worksites did not constitute “attendance” at work – in my view this is an arguable point and will depend on determination of the legal and factual issues in dispute between the parties. In particular I note the observations of the Full Court in Adams that:

92.    A relevant appellant would, we think, have to know that another employee was, or employees were engaging in industrial action in order that he might be said to have, himself, engaged in it. If, knowing that another or others would probably be failing or refusing to attend for, or to perform work, a relevant appellant might engage in such industrial action simply by, himself, failing or refusing to attend for, or to perform work. His motive for doing so would be irrelevant, as would be the way in which he spent the time during which he should have been at work. Section 417 strikes at engagement, not motive or purpose. The industrial action is failure or refusal to attend for, or to perform work, not doing other things such as attending at a rally or march or, as was suggested in argument, going to the beach.

26    I further note the concern expressed in Adams at [54] in respect of the correctness of remarks made in [2015] FCAFC 25 at [120].

27    In my view there are serious questions to be tried as to whether the Relevant Workers had engaged in unprotected industrial action on the Relevant Days, as to whether UGL was required to pay or not pay wages for the Relevant Days, as to whether or not the Relevant Workers attended at work on the Relevant Days, and further as to whether an order should be made prohibiting the CEPU from bringing or pursuing any claim for payment of wages of members of the CEPU in terms of paragraph 1 of the originating application, and a supportive declaration in terms of paragraph 2.

Damages as an adequate remedy?

28    Neither party in this case gave more than cursory attention to the question whether damages was an adequate remedy as an alternative to an order for interlocutory relief. However Mr Hatcher SC for UGL submitted that, in the event that the private arbitration before the Fair Work Commission proceeded, and the Fair Work Commission erred in its view as to whether UGL should or should not have treated the Relevant Days as leave without pay in terms of the Enterprise Agreement, UGL was at risk of contravening ss 474 and 475. I also consider that, depending on the correctness of any finding of the Fair Work Commission in this case, there is a risk a contravention of s 50 of the Fair Work Act by UGL in respect of cl 6.10 of the Enterprise Agreement.

29    I accept the submission of UGL that damages would not be an adequate remedy in the circumstances.

Balance of convenience and interests of justice

30    I am satisfied that the balance of convenience and the interests of justice favour the interlocutory restraining orders sought.

31    While the respondent contends that the Fair Work Commission is the specialist body which should have carriage of the present dispute between the parties rather than the Federal Court, and that the Fair Work Commission should rule on its own jurisdiction to arbitrate the dispute between the parties, such cases as Teys do not support that proposition. Observations of Bromberg J in Teys are particularly apposite. In Teys his Honour materially said:

31.    First, this Court’s specialist function is the determination of controversies concerning existing rights and liabilities, including under the FW Act. Conversely, that is not the traditional function of the FWC. True it is that the FWC has been given some ability to address rights and liabilities through its capacity as a private arbitrator, but that is not its specialist function. I recognise that the FWC does deal with the interpretation of enterprise agreements and their consistency with provisions of the Act. But, that is different to the final determination of the legal rights of the parties under the FW Act, that being the specialist function of this Court. Second, and relatedly, the FWC is an inferior tribunal. It will be assisted by the reasons for judgment of superior courts of record such as this Court.

32.    Third, this dispute is not without difficulty…

33.    Fourth, a fortiori where (as here) the issues raised are of general importance…

…

36.    Fifth, and most importantly, if the substantive question continues to determination in private arbitration and in this Court, there is the potential for the answers to be inconsistent…

32    In my view each of these observations is equally applicable to the case before me, in particular the risk of conflicting results in different jurisdictions.

33    I further note that, in the event of a decision by the Fair Work Commission by way of private arbitration in terms of s 739 of the Fair Work Act which was in error, prerogative writs in the nature of certiorari would not be available : Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v ALS Industrial Australia Pty Ltd (2015) 235 FCR 305, Endeavour Energy v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2016] FCAFC 82, Energy Australia Yallourn Pty Ltd v Automotive, Food, Metal, Engineering, Printing and Kindred Industries Union [2018] FCAFC 146. Given the other factors favouring the grant of interlocutory relief, this is another reason for such relief. I note that, in the event of an incorrect decision by the Federal Court, prerogative writs can be sought, or the matter appealed to the Full Court.

34    I also note in this respect that while UGL had agreed to the private arbitration before the Fair Work Commission under cl 2.1 of the Enterprise Agreement, as found by Hayne, Crennan, Kiefel and Bell JJ in TCL Air Conditioner (Zhongshan) Co Ltd v The Judges of the Federal Court of Australia [2013] HCA 5:

75.    The exercise of judicial power is an assertion of the sovereign, public authority of a polity. Whilst it is “both right and important to observe that the determination of rights and liabilities lies at the heart of the judicial function”, parties are free to agree to submit their differences or disputes as to their legal rights and liabilities for decision by an ascertained or ascertainable third party, whether a person or a body. As will be explained, where parties do so agree, “the decision maker does not exercise judicial power, but a power of private arbitration”.

76.    An agreement to submit disputes to arbitration does not, apart from statute, take from a party the power to invoke the jurisdiction of the courts to enforce that party’s rights by instituting an action to determine a dispute of a kind that the parties have agreed should be arbitrated. The jurisdiction of the courts is not and cannot be ousted by a private agreement.

(footnotes omitted, emphasis added)

35    I note the submission of the respondent that the grant of interlocutory relief may result in delay to payment of wages of Relevant Workers. However, the entitlement of the Relevant Workers to those wages is ultimately dependent on determination of the issues identified in the Originating Application.

36    Finally, to the extent that the interlocutory injunction sought is in the nature of an anti-suit injunction, I note the following comments of Lee and Tamberlin JJ in Pegasus Leasing Ltd v Cadoroll Pty Ltd (1996) 59 FCR 152 at 156:

Caution should be exercised when considering an application for an injunction to restrain parties from initiating or continuing actions in a foreign jurisdiction. See CSR Ltd v New Zealand Insurance Co Ltd (1994) 36 NSWLR 138 at 152 per Rolfe J.

Foreign proceedings may be restrained not only when they are vexatious, in the sense of frivolous or useless, but also where they are oppressive. However, vexation or oppression should not be regarded as the only grounds on which the jurisdiction is to be exercised. See Societe Nationale Industrielle Aerospatiale v Lee Kui Jak [1987] AC 871 at 894.

The fundamental requirement is that an injunction will be granted only where the interests of justice so require. The Court will not normally grant an injunction if by doing so it would deprive the plaintiff of advantages in the foreign forum, where to do so would be unjust. See Aerospatiale at 896G.

(emphasis added)

37    (see also North J in Transport Workers Union of Australia v Lee (1998) 80 IR 106, [1998] FCA 173 and Teys at [27])

38    Even to the extent that this application may be in the nature of an anti-suit injunction, the interests of justice favour its grant.

CONCLUSION

39    It is appropriate that the Court grant the interlocutory relief sought in para 1 of the interlocutory application.

40    The matter has been brought before the Court, adjourned to allow the respondent the opportunity to file evidence and submissions, and has returned for full hearing where both parties were represented by Counsel. Neither party made any submissions concerning paras 2, 3 and 4 of the interlocutory application at the hearing, and I make no orders referable to those paragraphs.

41    I note that the applicant seeks an order that costs be reserved. Plainly it is unusual in this jurisdiction that costs be awarded – see s 570 of the Fair Work Act – and no submissions were made at the hearing concerning costs in the event that the applicant was successful. However in the interests of caution, and because the applicant asked that costs be reserved, I will make an order to that effect.

42    Finally, rather than make case management orders taking the matter forward, I will order that the matter be remitted to the National Operations Registry for urgent allocation of the matter to a docket Judge. I will also order that there be liberty to apply.

Associate:

Dated:    2 August 2024