Construction, Forestry, Mining and Energy Union v Australian Building and Construction Commissioner [2010] FCA 349 (13 April 2010)

Last Updated: 14 April 2010

FEDERAL COURT OF AUSTRALIA

Construction, Forestry, Mining and Energy Union v Australian Building and Construction Commissioner [2010] FCA 349

Citation:		Construction, Forestry, Mining and Energy Union v Australian Building and Construction Commissioner [2010] FCA 349
Parties:		CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION, JOSEPH MCDONALD and MICHAEL BUCHAN v AUSTRALIAN BUILDING AND CONSTRUCTION COMMISSIONER
File number:		WAD 24 of 2010
Judge:		GILMOUR J
Date of judgment:		13 April 2010
Catchwords:		PRACTICE & PROCEDURE – appeal – application for extension of time and leave to appeal from interlocutory discretionary judgment – whether decision attended with sufficient doubt – whether substantial injustice if leave were refused – no substantive right determined – no prospects of success – application dismissed.
Legislation:		Building and Construction Industry Improvement Act 2005 (Cth) ss 36(1)(g)(i), 38, 39(1), 49(1)(c) Trustee Act 1925 (NSW) s 69
Cases cited:		Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2009] FCA 1092 Australian Building & Construction Commissioner v Construction, Forestry, Mining & Energy Union (No 2) [2009] FCA 1587 Banque Commerciale SA (en liquidation) v Akhil Holdings Ltd [1990] HCA 11; (1990) 169 CLR 279 Décor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 655; (1991) 33 FCR 397 House v King [1936] HCA 40; (1936) 55 CLR 499 Sharman License Holdings Ltd v Universal Music Australia Pty Ltd [2005] FCA 702
Date of hearing:	9 March 2010
Place:	Perth
Division:	FAIR WORK DIVISION
Category:	Catchwords
Number of paragraphs:	32
Counsel for the Applicants:	Ms K A Vernon
Solicitor for the Applicants:	Slater & Gordon
Counsel for the Respondent:	Mr K M Pettit (SC) with Mr S Harben
Solicitor for the Respondent:	Clayton Utz

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
FAIR WORK DIVISION	WAD 24 of 2010

BETWEEN:	CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION First Applicant JOSEPH MCDONALD Second Applicant MICHAEL BUCHAN Third Applicant
AND:	AUSTRALIAN BUILDING AND CONSTRUCTION COMMISSIONER Respondent

JUDGE:	GILMOUR J
DATE OF ORDER:	13 APRIL 2010
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1. The applicants’ motion dated 8 February 2010 be dismissed.
2. The applicants pay the costs of the respondent to be taxed if not agreed.
   

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
FAIR WORK DIVISION	WAD 24 of 2010

BETWEEN:	CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION First Applicant JOSEPH MCDONALD Second Applicant MICHAEL BUCHAN Third Applicant
AND:	AUSTRALIAN BUILDING AND CONSTRUCTION COMMISSIONER Respondent

JUDGE:	GILMOUR J
DATE:	13 APRIL 2010
PLACE:	PERTH

REASONS FOR JUDGMENT

1. The applicants on the motion (the CFMEU parties) by para 1 seek an order extending the time within which they may file and serve a motion for leave to appeal from part of my judgment in WAD 106 of 2009. Judgment in that matter was given in two separate sets of reasons.
2. The proceedings arose from strike action taken by employees of several contractors on 5, 6, 8, 24 and 25 June 2009 at a high rise building site at 915 Hay Street, Perth (the Site) controlled by Diploma Constructions (WA) Pty Ltd (Diploma).
3. In its substantive application filed in June 2009, the applicant, the Australian Building and Construction Commissioner (ABCC), which is the respondent to the motion, sought relief in respect of alleged breaches by the CFMEU parties of s 38 of the Building and Construction Industry Improvement Act 2005 (Cth) (BCII Act), a civil penalty provision, which prohibits a person from engaging in unlawful industrial action.
4. On 29 September 2009, I delivered reasons for judgment in relation to the application by the ABCC for an interlocutory injunction to restrain the CFMEU parties from engaging in further unlawful industrial action in which I concluded that interlocutory relief ought be granted: Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2009] FCA 1092 (the first judgment).
5. At that time, however, I deferred making orders as the respondents indicated that they wished to be heard on the form of those orders.
6. In Australian Building & Construction Commissioner v Construction, Forestry, Mining & Energy Union (No 2) [2009] FCA 1587 (the second judgment) delivered on 23 December 2009, I made the following orders:
   1. Until further determination of this application or until further order, each of the respondents (whether by their officers, delegates, agents, employees or other representatives) be restrained from:
      

(a) being engaged in or involved in any contractor (and their employees) or employee who is required to perform building work for Diploma Constructions (WA) Pty Ltd (Diploma):

(i) failing or refusing to attend for building work or failing or refusing to perform any work after attending for building work; or
(ii) placing a ban, limitation or restriction on the performance of building work adopted in connection with an industrial dispute, (together action)

save and except in relation to action by any employee of a contractor or of Diploma, required to perform building work for Diploma if the action by the employee is authorised or agreed to, in advance and in writing, by the employer of the employee; or action by an employer that is authorised or agreed to, in advance and in writing, by or on behalf of employees of the employer; or action based on a reasonable concern held by the employee about an imminent risk to his or her health or safety and the employee did not unreasonably fail to comply with a direction of his or her employer to perform other available work, whether at the same or another workplace, that was safe to perform.

(b) attending or organising or procuring any person or persons, to attend, within 100 metres of any entrance to the Diploma construction site located at 915 Hay Street, Perth, Western Australia, save for such entry to the site as may be authorised by law pursuant to the provisions of Part 3-4 of the Fair Work Act 2009, for the purpose of using a public road for reasons unconnected with the said site or for the purpose of complying with these orders.

(c) Costs reserved.

7. There is no issue between the parties as to the applicable legal principles governing the disposition of this motion.
8. The considerations relevant to an application for an extension of time in which to seek leave to appeal from an interlocutory order were set out by Lindgren J in Sharman License Holdings Ltd v Universal Music Australia Pty Ltd [2005] FCA 802 at [20]:

In order for the Court to allow further time for the filing and serving of an application for leave to appeal from an interlocutory judgment, the following conditions must be satisfied:

1. There must be a satisfactory explanation for the delay beyond the seven-day time limit fixed by O 52 r 10(2)(b) (see, for example, Deighton v Telstra Corporation Ltd (unreported, Full Court, 17 October 1997));
   
2. The application for leave to appeal must have such prospects of success as not to render the extending of time an exercise in futility. Since the test for the granting of leave to appeal from an interlocutory judgment is that the decision must be attended with sufficient doubt to warrant its being reconsidered by an appellate court, and that substantial injustice would result if leave were to be refused, supposing the decision to have been wrong (Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-400), in principle the question on an application for an extension of time is whether this test has sufficient prospects of being satisfied, to warrant granting the extension. In practice, the debate and treatment of the ‘arguable error’ question on an application for an extension of time, will be no different from what the debate and treatment of it would be on the application for leave to appeal itself.
   
3. Since an applicant for extension of time within which to appeal as of right must show ‘special reasons’ (O 52 r 15(2)), nothing less should be required of an applicant for an extension of time within which to apply for leave to appeal (Deighton v Telstra Corporation Ltd, above).
   
9. I will deal first with the question of whether the decision is attended with sufficient doubt to warrant it being reconsidered by a Full Court and whether substantial injustice would result if leave were refused supposing the decision to have been wrong.
10. As Lindgren J said in Sharman, the approach to the ‘arguable error’ question on a motion such as this is no different to that on an application for leave to appeal.
11. Central to the reasons for shaping the relief granted was my characterisation, as spurious, of the CFMEU parties claims that their conduct was justified or excused under s 36(1)(g)(i) of the BCII Act by reason that the industrial action was based on a reasonable concern by the employees about an imminent risk to health or safety. I concluded that whilst I was not prepared to reach a view as to the precise reasons underlying their conduct, it involved, plainly enough, action directed against Diploma. That the action was taken at the Site was incidental. It could have been at any other Diploma site in Western Australia: the first judgment at [144]-[145] and the second judgment at [30]. I refer to these paragraphs in detail below.
12. The CFMEU parties correctly submit that when the Court comes to exercise its discretion on a particular application, an important distinction lies between the common interlocutory decision on a point of practice where “a tight rein” is required on appeals, and an interlocutory decision determining a substantive right, where leave will more readily be granted: Décor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 655; (1991) 33 FCR 397 at 400.
13. Here, however, no substantive right has been determined. The CFMEU parties have been enjoined, until further determination of the application, or until further order, from engaging in illegal conduct in the way of being engaged or involved in unlawful industrial action in relation to any contractor and its employees required to perform building work for Diploma. There is no substantive right to engage in illegal conduct. Whilst the injunction protects the interests of Diploma it is in the nature of a statutory injunction in the public interest in proceedings brought by the ABCC in its statutory capacity in aid of the main object found in s 3(1) of the BCII Act, which is to provide an improved workplace relations framework for building work to ensure that building work is carried out fairly, efficiently and productively for the benefit of all building industry participants and for the benefit of the Australian economy as a whole.
14. The CFMEU parties filed a notice of appeal. As I advised their counsel at the hearing, I treat this as a draft notice of appeal for the purposes of these reasons.
15. The grounds contained in the draft notice of appeal are as follows:
    1. The learned Judge made an error of law in granting an injunction extending beyond 915 Hay Street, Perth to all construction sites operated by Diploma Construction Pty Ltd ("Diploma") within Western Australia when that relief was beyond the scope of the relief sought in the Application.
       
    2. The learned Judge made an error of fact and law in granting an injunction extending beyond 915 Hay Street, Perth to all construction sites operated by Diploma Construction Pty Ltd within Western Australia when:
       

2.1. There was no finding that unlawful industrial action by the appellant was occurring, threatened, impending or probable at any Diploma site apart from 915 Hay Street, Perth;

2.2. There was no evidence capable of supporting a finding that unlawful industrial action by the appellant was occurring, threatened, impending or probable at any Diploma site apart from 915 Hay Street, Perth;

2.3. It was not appropriate to do so because that was more than was necessary to do justice between the parties;

2.4. There was no evidence capable of supporting an extension of the injunction beyond 915 Hay Street Perth;

2.5. there was no reasonable basis for drawing an inference that the target of the respondent's actions was Diploma itself and not matters peculiar to 915 Hay Street, Perth.

16. Accordingly, both grounds are directed to the complaint of the CFMEU parties that the injunction is too widely expressed and should be confined to unlawful conduct at the Site.

Ground 1

17. The CFMEU parties say this extends beyond the scope of the relief sought by the ABCC in its application. I rejected that submission at [22]-[23] of my reasons in the second judgment. I observed, reading [7] and [22] together, that the wider construction as to the meaning of ‘Diploma Workers’ contended for by the ABCC was open. That finding of itself would have been sufficient, on this point, to sustain the interlocutory injunction in the terms granted. It was not necessary, for that reason, to make a further determination on that question. Moreover, as I explained at [23], the terms of the injunctive relief sought do not necessarily bind the Court to that relief. The statutory jurisdiction is to exercise the Court’s discretion in such terms as it considers appropriate: the BCII Act s 39(1) and s 49(1)(c). It is well established that this is a wide judicial discretion.
18. The CFMEU parties, however, submit that a party is generally limited to the relief it has claimed because this is a matter of basic procedural fairness. They cite in support of this proposition Banque Commerciale SA (en liquidation) v Akhil Holdings Ltd [1990] HCA 11; (1990) 169 CLR 279 at p 286. The appeal in the High Court turned on the failure of the plaintiff in an action under s 69 of the Trustee Act 1925 (NSW) against, relevantly, a bank, to plead fraudulent breach of trust in reply to the bank’s defence that the action was statute barred. The Court of Appeal had found that the bank had been a party to such fraudulent breach although it had not been pleaded by the plaintiff. This finding was reversed by the High Court on the ground that the absence of such a pleading was a bar to a finding that the bank was guilty of fraud. That decision was based in the requirement of procedural fairness that a party should have the opportunity of meeting the case against him or her. At p 286 Mason CJ and Gaudron J said:

The rule that, in general, relief is confined to that available on the pleadings secures a party’s right to this basic requirement of procedural fairness.

19. Here there were no pleadings. As well as the terms of the application the issues in the interlocutory hearing for injunctive relief were thrown up by the evidence, written and oral, as well as the submissions of the parties. Prior to the hearing on 17 and 20 July 2009 I had earlier on 2 July 2009, made interim orders granting injunctive relief which extended beyond the Site.
20. The CFMEU parties, in their closing submission dated 31 July 2009, specifically referred to this fact and sought to be heard further on the form of order. They made submissions that the order should not extend to those sites, pointing to lack of evidence. Their submissions on the form of order were also directed to the issue of other sites. No adjournment was sought, based on procedural fairness, at any time, in order to enable the CFMEU parties the opportunity to put on additional evidence. It is not now suggested that they would have done so. I do not think there is any merit at all in this late complaint of procedural unfairness.

Ground 2

21. The CFMEU parties complain that there was no evidence adduced by the ABCC about any other work site. This was not the case. As I said at [59] in the first judgment:

Mr Buchan says that, as he addressed them about “issues” on other Diploma sites, Wes Francis, the Diploma site manager suggested that the employees get a petition up. This, says the respondents, amounts to a denial of the evidence of Mr Day that he heard Mr Buchan say “I am going to raise a petition for all of the Diploma sites with regards to general safety concerns and send it to John Norrup (a Diploma Director) ...”. I do not consider it to be a denial. Mr Buchan does not expressly deny what he is alleged to have said but only that it was Francis who (first) raised it.

22. More importantly this complaint ignores the thrust of the ABCC’s case at the substantive hearing that, in effect, it was Diploma which was the target of the CFMEU parties’ unlawful conduct and that this conduct had nothing whatsoever to do with genuine health and safety concerns at the Site.
23. Indeed I found as such. I rejected the case of the CFMEU parties that the industrial action was justified at law under s 36(1)(g)(i) of the BCII Act namely that it arose out of a reasonable concern as to imminent danger to the health or safety of any employee on the Site.
24. In the first judgment I found at [144]:

The ABCC submits that I should find a prima facie case, by inference, that the real reasons why the strikes occurred were because Diploma involved the police in having Mr McDonald and Mr Buchan removed from the Site on 5 June 2009 and because they were a response to Diploma’s actions taken, advice of which was given to CFMEU on 21 April 2009, that Mr McDonald would no longer be allowed access to the Site or to any Diploma Site and that, in order to gain Federal Accreditation Diploma would require adherence by the CFMEU to Diploma’s Guidelines. These reasons may well have been the motivation behind the strikes. It is unnecessary that I form a view as to this even on a prima facie basis. It is enough that I have concluded that there is a prima facie case established by the ABCC that the respondents engaged in unlawful industrial action. Whatever the real reasons I am satisfied to the necessary degree that they had nothing to do with any reasonable concern as to any imminent danger to the health or safety of any employee on the Site. (Emphasis added)

And at [145]:

It is of particular concern that the CFMEU, Mr McDonald and Mr Buchan have, as I have found on a prima facie basis, hidden behind spurious concerns as to the health and safety of employees to advance, as I infer, their own unspecified industrial aims.

25. I then found in the second judgment at [30]:

Whilst I was not prepared to reach a view as to the precise reasons underlying the respondents’ conduct, it involved, plainly enough, action directed against Diploma. That the action was taken at the Site was incidental. It could have been at any other Diploma site in Western Australia. The action taken was directed not at the Site, given my rejection of the respondents’ claims made at the hearing of the interlocutory application for interim injunctive relief. No other reason was advanced by the respondents which confined their action to the Site. These findings place the evidence that Mr Buchan and Mr Day gave, concerning a petition in relation to safety issues at Diploma sites, in a particular context. I am not prepared to conclude, even provisionally, that any such alleged safety issues even existed in June 2009. It is a reasonable inference to draw then, as I do, that the target of the respondents action was Diploma itself and not matters peculiar to the Site.

26. In these circumstances, it was not necessary in order to justify the width of the relief, that there be evidence or findings that unlawful industrial action was occurring, threatened, impending or probable at any Diploma site other than the Site. This is so because of the finding that the unlawful conduct was aimed at Diploma, the Site being incidental and that it could have occurred at any Diploma site. Further the terms of s 49(4)(a) of the BCII Act provide that the power of the Court to grant an injunction, arising from a contravention of s 38, to restrain a person from engaging in conduct may be exercised whether or not it appears to the Court that the defendant intends to engage in it again, or to continue to engage in conduct of that kind.
27. There is no direct challenge in the draft notice of appeal to the findings made at [30] in the second judgment. Grounds 2.2, 2.4 and 2.5 are generally expressed. The evidence, circumstances and findings from which the inference at [30] was drawn, that the target of the CFMEU parties unlawful conduct was Diploma, the Site being incidental, was as follows:

(a) the evidence of the CFMEU parties that their conduct was justified under s 36(1)(g)(i) of the BCII Act;

(b) the rejection of that evidence and the finding that it constituted spurious concerns as to the health and safety of employees at the Site;

(c) the circumstances of the failure of the CFMEU parties to proffer any other evidence as to why their conduct occurred at the Site.

28. No challenge is made to the rejection of their evidence or it being characterised as constituting spurious claims. That evidence and those findings, I remain satisfied, warrant the inference drawn and the interlocutory relief granted to protect Diploma from such conduct on an interlocutory basis.
29. Furthermore, even assuming the decision to be wrong, I do not consider that any injustice will result if leave were to be refused. As I said the CFMEU parties have only been enjoined from acting illegally in the way set out in the orders. Any prejudice as to costs can be revisited if necessary at a later stage of these proceedings.
30. I am not satisfied by reference to the proposed grounds of appeal that the decision in respect of which leave to extend time within which to seek leave to appeal is sought is attended with sufficient doubt to warrant reconsideration by a Full Court. This is particularly so as the decision is discretionary in nature bearing in mind the test in House v King [1936] HCA 40; (1936) 55 CLR 499 at 504-505.
31. In the circumstances it is unnecessary to consider the other conditions which would require to be satisfied before an extension of time is granted, or in turn, the orders sought in paras 2 and 3 of the motion.

ORDERS

32. There will be orders that the motion be dismissed with costs.
    

I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gilmour.

Associate:

Dated: 13 April 2010