Lend Lease Building Pty Ltd v Construction, Forestry, Mining and Energy Union [2016] FWC 3050 (16 May 2016) [2016] FWC 3050 FAIR WORK COMMISSION REASONS FOR DECISION Fair Work Act 2009 s.418 — Application for an order that industrial action by employees or employers stop etc. Lend Lease Building Pty Ltd v Construction, Forestry, Mining and Energy Union; and Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (C2016/3657) COMMISSIONER HUNT BRISBANE, 16 MAY 2016 Alleged industrial action at Sunshine Coast University Hospital Kawana Way, Birtinya, Queensland. [1] An application for an order under s.418 of the Fair Work Act 2009 (the Act) was made to the Fair Work Commission (the Commission) at 1.23pm on Thursday, 5 May 2016 by Lend Lease Building Pty Ltd (Lend Lease). The application was accompanied by an application for order of substituted service, together with written statements made by four Lend Lease managers. [2] Lend Lease is contracted to construct the Sunshine Coast University Hospital at Kawana Way, Birtinya, Queensland (the Hospital). [3] The application made by Lend Lease alleged that the Hospital site normally has around 1000 workers onsite, Monday to Friday. On 5 May 2016, approximately 600 workers had allegedly withdrawn their labour. Procedural matters [4] The application sought orders be made by the Commission against: (a) The Construction Forestry Mining Energy Union (CFMEU); (b) The delegates, officers, employees, agents and members of the CFMEU; (c) All employees employed by Lend Lease covered by the Lend Lease Project Management & construction (Australia) Pty Ltd/CFMEU Joint Development Agreement Mark 8 2012-2016 (AG2012/10905) at the Hospital; and (d) Employees of 24 subcontractors engaged by Lend Lease performing work at the Hospital site. [5] Lend Lease proposed orders be made against the CFMEU for reason it was alleged it was organising the industrial action. [6] At 5.07pm on 5 May 2016, I made an order for substituted service. The matter was listed for hearing before me at 10.00am on Friday, 6 May 2016. [7] An amended application was filed by Lend Lease at 7.31am on Friday, 6 May 2016. The amended application included the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU), and alleged the CEPU had “worked in a coordinated effort with or jointly with the CFMEU and arranged for a meeting of its members and employees of the subcontractors …… at normal start time ….. 5 May 2016.” [8] At the hearing, Mr Dean Cameron, Principal Advisor – Workplace Relations of Master Builders Queensland appeared for Lend Lease. Mr Luke Tiley, Director/Principal of Hall Payne Lawyers sought leave to appear for both the CFMEU and CEPU (the unions). Leave was granted pursuant to s.596 of the Act for Mr Tiley to appear. [9] I accepted into evidence witness statements of four Lend Lease witnesses. Mr Tiley informed the Commission cross-examination was not required of two witnesses, and those witnesses were not present. No witnesses were called for the unions, nor did any employees attend to give evidence. Alleged industrial action [10] Lend Lease alleged unprotected industrial action was occurring at the Hospital site on 5 May 2016 and continuing on 6 May 2016, having been organised by the CFMEU and the CEPU. [11] By way of background, protected industrial action taken by employees of Nilsen, an electrical contractor on the Hospital site was occurring on 5 May 2016. More than 150 Nilsen employees had lawfully withdrawn their labour to advance their enterprise bargaining position with their employer. [12] The evidence before the Commission is that on 4 May 2016, 994 workers were present on the Hospital site, including the Nilsen workers. On 5 May 2016, this had reduced to 401, and on 6 May 2016, only 147 workers were performing work on the site. Mr Plummer’s evidence [13] Mr Mark Plummer, Senior Construction Manager gave evidence. Mr Plummer’s evidence is the Hospital project has a construction value of around $1.6 billion, and is scheduled for completion in August 2016. The daily turnover is approximately $1.5 million each day. [14] Work is performed on the site between 6.00am and 6.00pm, Monday to Saturday, excluding gazetted public holidays. [15] On Mr Plummer’s arrival to work on 5 May 2016, he observed a number of workers wearing Nilsen company clothing in attendance at a meeting across the road from the Hospital site. Mr Peter Ong, Assistant State Secretary of the Electrical Trades Union was addressing the Nilsen workers. [16] At approximately 6.45am, Mr Plummer spoke with Mr Ong and informed him that Nilsen workers who were assembled by the various gates of entrance and exit to the site should not block the gates. Mr Plummer described the Nilsen workers as ‘picketing’. In cross-examination, Mr Tiley suggested the actions of Nilsen employees were better described as a ‘demonstration’. Mr Plummer described the action as ‘picketing, demonstrating, or congregating’. Mr Plummer agreed that upon Lend Lease speaking with Mr Ong to ensure that clear access to and from the site was available, this was honoured by Mr Ong and Nilsen workers. [17] Shortly after 6.45am, Mr Plummer observed a meeting of workers outside the site, across the road from the Hospital. Some period of time later, Mr Plummer observed the workers at this meeting leave the vicinity of the site. [18] Mr Plummer had a brief conversation with Mr Tony Kong, CFMEU Organiser. Mr Plummer attests to the following conversation: Plummer: What’s going on? Kong: No comment. Plummer: How long are the men on strike for? Kong: No comment. Plummer: Is there a meeting tomorrow morning? Kong: No comment. [19] Mr Plummer repeated the above questions, using slightly different words, and on each occasion, Mr Kong replied, “No comment.” Mr Kong then said, “You know what you need to do to fix this!” [20] Mr Plummer asked Mr Kong, “What do you mean?” Mr Kong replied, “No comment.” [21] Mr Plummer provided instruction to various Lend Lease managers to ensure communication was sent to Lend Lease employees and the subcontractor workforce that the site was open and normal work should continue. Copies of the communication by the numerous subcontractors to the subcontractor workforce, informing them the site was open and instructing them to return to work was accepted into evidence. [22] In examination-in-chief, Mr Plummer was shown a number of emails he had been copied in to between 2.11pm and 2.39pm on 5 May 2016. The emails are detailed below: (a) Email of Ms Neisha Traill, Industrial Officer, ETU at 2.11pm. The email was sent to subcontractor employers at the Hospital site, copying in three Lend Lease managers, including Mr Plummer: Subject: Stoppage of work – Lend Lease Sunshine Coast Hospital Project Importance: High Good Afternoon We understand that a stoppage of work has occurred at the Lend Lease Sunshine Coast Hospital Project today which is alleged to be unlawful industrial action (except for the protection industrial action of Nilsen employees). We are instructed that our members cannot perform work at the site due to the protected action by Nilsen employees and their associated demonstration. We are further instructed that our members are ready, willing and able to perform work for their respective employers elsewhere, if it can be safely performed, and to be redeployed to another location for that purpose. We note that this course is permitted by our members’ contracts of employment. We request, on behalf of our members, that you please use your best endeavours to redeploy those of our members that work for your company but are currently unable to work at the site. We are happy to discuss means by which to facilitate that outcome.” I suggest that the ETU puts all of their employers (except Nilsen) on one email cc Lend Lease. The CFMEU should do the same for its employers including Lend Lease. It is critical that both unions’ emails go to Lend Lease (as many LL employees as possible especially Plummer and Clark) so that we can put the 2 emails in evidence in my cross examination of Lend Lease. Regards Neisha Traill Industrial Officer Electrical Trades Union Queensland (b) Attempted recall of the message in (a) above by Ms Traill at 2.12pm; (c) The email in (a) above was sent to the same recipients at 2.12pm, including copying in Mr Plummer. The last paragraph, shaded, had been deleted; (d) Email of Mr Jade Ingham, Division Branch Assistant Secretary, CFMEU, QLD/NT Branch at 2.39pm. Mr Ingham’s email was sent to a number of subcontractor employers at the Hospital site, copying in Mr Plummer: Subject: Lend Lease Sunshine Coast Hospital Good Afternoon, We understand that a stoppage of work has occurred at the Lend Lease Sunshine Coast Hospital Project today which is alleged to be unlawful industrial action (except for the protection industrial action of Nilsen employees). We are instructed that our members cannot perform work at the site due to the protected action by Nilsen employees and their associated demonstration. We are further instructed that our members are ready, willing and able to perform work for their respective employers elsewhere, if it can be safely performed, and to be redeployed to another location for that purpose. We note that this course is permitted by our members’ contracts of employment. We request, on behalf of our members, that you please use your best endeavours to redeploy those of our members that work for your company but are currently unable to work at the site. We are happy to discuss means by which to facilitate that outcome. Kind Regards Jade Ingham Divisional Branch Assistant Secretary CFMEU QLD/NT Branch Mr Clark’s evidence [23] Mr David Clark, Site Manager gave evidence. Mr Clark’s evidence is that on 5 May 2016, Mr James Fissenden, a Lend Lease employee and CFMEU site delegate informed him at 5.54am that Mr Kong was holding a meeting across the road from the site. [24] At 6.36am, Mr Clark was informed by a Lend Lease supervisor that Mr Kong could be seen commencing a meeting of CFMEU members. [25] At 7.08am, Mr Fissenden telephoned Mr Clark to inform him that the workers did not want to cross the Nilsen picket line and were leaving the site. Mr Fissenden said the workers were prepared to work on [another] project in Brisbane for the day. Mr Clark informed Mr Fissenden the Hospital site was open and all workers should return to perform work at the site. [26] Mr Clark was present during the conversation between Mr Plummer and Mr Kong referenced in Mr Plummer’s evidence above. Mr Clark’s evidence of the conversation is largely the same as Mr Plummers’. Evidence of Mr Andrew Stewart and Mr Mark Kennedy [27] Mr Andrew Stewart, Site Manager prepared a witness statement which was accepted into evidence. His statement details he sent a text message to five Lend Lease construction workers at 6.31am and 7.13am informing the workers they are instructed to return to work at the Hospital site immediately. [28] Mr Mark Kennedy, Foreman prepared a witness statement which was accepted into evidence. Mr Kennedy attached 25 photographs, largely of workers assembling across the road from the site. The photographs were taken between 6.40am and 7.21am. [29] Mr Tiley did not require Mr Stewart or Mr Kennedy for cross-examination. Accordingly, the witnesses were not required for attendance at the hearing. Legislative context [30] The application has been made pursuant to s.418 of the Act. Section 418 provides: “ 418 FWC must order that industrial action by employees or employers stop etc. (1) If it appears to the FWC that industrial action by one or more employees or employers that is not, or would not be, protected industrial action: (a) is happening; or (b) is threatened, impending or probable; or (c) is being organised; the FWC must make an order that the industrial action stop, not occur or not be organised (as the case may be) for a period (the stop period) specified in the order. Note: For interim orders, see section 420. (2) The FWC may make the order: (a) on its own initiative; or (b) on application by either of the following: (i) a person who is affected (whether directly or indirectly), or who is likely to be affected (whether directly or indirectly), by the industrial action; (ii) an organisation of which a person referred to in subparagraph (i) is a member. (3) In making the order, the FWC does not have to specify the particular industrial action. (4) If the FWC is required to make an order under subsection (1) in relation to industrial action and a protected action ballot authorised the industrial action: (a) some or all of which has not been taken before the beginning of the stop period specified in the order; or (b) which has not ended before the beginning of that stop period; or (c) beyond that stop period; the FWC may state in the order whether or not the industrial action may be engaged in after the end of that stop period without another protected action ballot.” Consideration [31] Having heard the evidence of the witnesses and the submissions from the parties, it appeared to me on the weight of the evidence before me that industrial action commenced on the Hospital site on 5 May 2016, and was continuing on 6 May 2016. [32] Five employees of Lend Lease, together with a substantial number of employees of subcontractors on the Hospital site failed to perform work on these dates. Work as it is ordinarily performed had not resumed at the conclusion of the hearing. There was no evidence before me that work would be resumed by the relevant employees. [33] For the purposes of s.418 of the Act, industrial action was therefore happening. I note that having been satisfied that the industrial action was happening I must make the order; the decision to make the order is not discretionary. [34] At the closing of submissions at approximately 2.00pm, I informed the parties that I would make an order to stop, not engage in and not organise industrial action against the employees subject to the application. I stated I would give consideration to the necessary length of the order, and would also consider whether to make the order against one or both of the unions. [35] An order [ PR580076 ] was issued by me that afternoon to come into effect at 4.00pm on 6 May 2016, and to cease to have effect at 5.00pm on 12 August 2016. No order against the CFMEU or CEPU [36] I was not satisfied on the evidence before me that the CFMEU or the CEPU were ‘organising’ industrial action within the meaning required for an order to be made under s.418(1)(c) to have been met. [37] It is clear the email sent by Ms Traill at 2.11pm was an error made by her. She quickly sought to recall the message. [38] Mr Cameron submitted the email sent by Ms Traill at 2.11pm, with the shaded paragraph included, demonstrates the CFMEU and the CEPU were coordinating their activities in seeking to have their members redeployed. The unions were informing the various employers that their members were not prepared to work at the Hospital site, but would be prepared to work at another site, organised by the employers. Mr Cameron submitted I should find the unions were facilitating the members’ withdrawal of labour at the Hospital site. [39] Mr Tiley submitted that while the release of the first email with the shaded paragraph included was an embarrassing error by the CEPU, the email itself should not result in the Commission making a finding that the unions were organising unprotected industrial action. Mr Tiley submitted the unions were proactively trying to address the issue of employees not performing work by informing the subcontractors their members were available to work elsewhere. [40] I do find on the evidence before me, and the almost identical emails sent by the two unions, that the unions were working in concert with each other with respect to the communication sent to the subcontractors. That is plain and clear. It is very likely that the shaded paragraph contained within the email inadvertently sent by Ms Traill was prepared by a person other than Ms Traill. The parties resolved claims of legal privilege attaching to this email inter se, and I was informed that legal privilege was not claimed. [41] While I do find the unions were working in concert with respect to the email sent, the email does not demonstrate that the unions were facilitating their members’ withdrawal of labour. The email sent by the unions to the subcontractors seeks to have the subcontractors direct their employees to work at an alternative site. The unions are entitled to make such a request. I do not expect the relevant officers of the unions to be surprised when their polite requests are not met; there is no evidence before me obligating the subcontractors to provide alternative work for the employees. There was work to be performed at the Hospital site. [42] The conduct of Mr Ong for the CEPU, with regard to unprotected industrial action was not largely criticised by Lend Lease. It was acknowledged that Mr Ong, upon request by Lend Lease managers, spoke with CEPU members to ensure entry and exit to the site was maintained. Mr Ong undertook this task and had the appropriate conversations with CEPU members on the morning of 5 May 2016. It would appear that Mr Ong was largely occupied with CEPU members who are Nilsen employees, and their protected industrial action. [43] The conduct of Mr Kong for the CFMEU falls just short of a finding that he ‘organised’ the unprotected industrial action of CFMEU members on 5 May 2016. The evidence of Mr Clark is that he was informed by Mr Fissenden and by a Lend Lease supervisor that Mr Kong was holding or commencing a meeting of CFMEU members across the road from the site. The telephone conversation with the Lend Lease supervisor was at a time when work would ordinarily be undertaken on the Hospital site; it was after 6.00am. [44] Mr Clark’s evidence is not direct evidence of Mr Kong’s conduct of allegedly addressing a large number of CFMEU workers during work time. If the evidence of Lend Lease had been direct, it would have been open to me to find that Mr Kong’s conduct in addressing CFMEU members who were taking unprotected industrial action during work time, and their failure to return to work subsequent the meeting, constitutes ‘organising’ industrial action for the purposes of s.418(1)(c) of the Act. [45] I note Mr Tiley suggested to Mr Plummer and Mr Clark in cross examination that Mr Kong did not say, “You know what you need to do to fix this!”, and instead said, “No comment.” Both witnesses attested to Mr Kong having said, “You know what you need to do to fix this!” [46] I do find that Mr Kong said to Mr Plummer the words attributed to him by Mr Plummer and Mr Clark. I do not, however, find that this statement is determinative of Mr Kong ‘organising’ industrial action. Duration of the order [47] I was referred to the Lend Lease Order No.1 2016 [ PR578282 ], an order made by Senior Deputy President Richards on 22 March 2016 with respect to the Hospital site. His Honour’s decision [2016] FWC 1830 ] was issued the same day. [48] The application before his Honour relevant to the matter before him was the seventh occasion there had been alleged unprotected industrial action at the Hospital site. The orders made by his Honour on 22 March 2016 were the fourth orders made on the project since 2014. His Honour stated that: [44] There have been seven applications filed in relation to the project since 2014. The seventh application is now before me. Three of those have resulted in orders (in 2014). As mentioned above, the three applications that have resulted in orders are now some reasonable time in the past, and I do not rely on this to any important measure as a result. [45] There is adequate, uncontested evidence before me, however, that there was a stoppage of work on 25 February 2016 (the sixth application) which left some 38 employees on site out of a total project total of 1363 at the time. The reasons for the stoppage were never communicated to Lend Lease at the time by the CFMEU when they were in communications about the incident. [46] It is enough for me to infer that the site’s workforce has shown a recent willingness to withdraw labour for unspecified reasons, and without invoking the disputes clause in the applicable enterprise agreements. [47] In my view, given the circumstances, an order of six week’s duration is required to ensure that the current project instability is arrested. [49] The orders made by his Honour ceased to have effect at 8.30pm on 3 May 2016. The unprotected industrial action found by me to have taken place at the same site commenced at 6.00am on 5 May 2016. [50] The evidence before the Commission is that the project is due for completion on 12 August 2016. It was submitted by Lend Lease that I should make the duration of the order for the remaining length of the project to ensure stability to the project, taking into consideration the earlier orders made by the Commission and the short period of time between the cessation of the last order made. [51] Mr Tiley submitted that if the Commission was to make orders, only the minimum relief necessary to do justice between the parties should be applied. On my question as to the appropriate duration of orders in this matter, Mr Tiley submitted orders should be made for a period of two to four weeks. I was implored not to ‘load up orders for a long period of time pre-emptively’. [52] Having regard to the submissions of the parties and the historical background of the site, I determined the order should be made for the period sought by Lend Lease; up to 12 August 2016. I did so in consideration of the most recent six week order having expired less than two days earlier. I formed the view that the size of the project, and the importance of the project on a social and community perspective (that being the construction of a large hospital outside of the state’s capital city) warranted the making of the order for the period sought by Lend Lease. [53] With regard to the Full Bench authority in United Voice v Foster’s Australia Limited 1 , it is necessary to ensure an order be directed to the purpose of ensuring that the relevant industrial action – that is, the industrial action which appears to the Commission to be occurring, and/or threatened, impending or probable, and/or being organised – stop, not occur and/or not be organised, as the case may be. [My emphasis]. [54] The unprotected industrial action that was occurring at the Hospital on 5 and 6 May 2016 was the failure of employees to attend for work at their normal start time and perform work as required or directed. The evidence before me is that those employees who did not attend for work elected not to do so as they did not want to work when employees of Nilsen were conducting a demonstration or picket while taking protected industrial action in the action of bargaining a new agreement. [55] The duration of the order is 14 weeks. It is not a substantial period of time. Lend Lease should not be subject to unprotected industrial action on the Hospital site for this period, simply because employees wish to show support to Nilsen employees in their bargaining for a new agreement. COMMISSIONER Appearances : D.Cameron, on behalf of the Applicant L.Tiley, on behalf the Respondents Hearing details: Brisbane, 6 May 2016 1 United Voice v Foster’s Australia Limited t/a Carlton and United Breweries Limited [2014] FWCFB 4104 at [38] Printed by authority of the Commonwealth Government Printer <Price code C, PR580370>