PR950125 Note: An appeal pursuant to s.45 (C2004/5295) was lodged against this decision and against the order resulting from this decision [ PR950157 ] - refer to Full Bench decision dated 12 October 2004 [ PR952441 ] for result of appeal. PR950125 Download Word Document AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION Workplace Relations Act 1996 s.127 (2) application to stop or prevent industrial action Grocon Constructors Pty Ltd (C2004/3617) Building, metal and civil construction industries VICE PRESIDENT ROSS MELBOURNE, 28 JULY 2004 Application to stop or prevent industrial action - industrial action probable - discretion - form of order - order issued. DECISION Background [1] This decision deals with an application by Grocon Constructors Pty Ltd (Grocon) for an order pursuant to s.127 of the W orkplace Relations Act 1996 Cth (the WR Act ). The application states that it concerns industrial action taken by the Construction, Forestry, Mining and Energy Union (the CFMEU) and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the CEPU) at Grocon's construction project at 501 Bourke Street, Melbourne (the RACV Project.) [2] Three witnesses gave evidence on behalf of Grocon: Ian Skinner (Project Manager employed by Grocon at the RACV Project); 1 Greg Gelsumini (Construction Manager employed by Grocon at the RACV Project); 2 and Peter Green (Occupational Health and Safety Officer employed by Grocon at the RACV Project). 3 [3] The unions did not lead any evidence. [4] A copy of the proposed order sought by Grocon is attached to this decision at Annexure 1. [5] The parties are bound by two certified agreements which regulate work at the RACV Project: the Grocon Victoria Enterprise Agreement 2002-2005 (the CFMEU Agreement ); and the Grocon Constructors Pty Ltd and Related Grocon Corporate Entities - ETU Enterprise Agreement 2003-2005 ( the CEPU Agreement ). [6] The nominal expiry dates of these agreements are 31 October 2005. Clause 4.2 of the CFMEU Agreement also incorporates the terms of the Victorian Building Industry Agreement 2000-2005 (the VBIA). [7] For reasons which will become apparent I need only refer to a number of clauses of the CFMEU Agreement and the VBIA. [8] The agreed process for resolving workplace disputes is contained in clause 13 of the CFMEU Agreement , while the agreed process for resolving safety-related disputes is contained in clause 20 of the VBIA. Clause 13 of the CFMEU Agreement provides that work is to continue as normal during the course of a dispute. Clause 20 of the VBIA provides that, where there is an urgent safety issue, the workforce may be moved from the affected area to an unaffected area and that all other work on the project is to continue whilst the safety disputes resolution procedure is being followed. If the parties cannot resolve disputes by themselves, they may either refer the matter to the Commission or the Victorian Building Industry Disputes Board under the CFMEU Agreement , or WorkCover under the VBIA. [9] The relevant clauses are in the following terms: "13. DISPUTE SETTLEMENT AND EMPLOYEE REPRESENTATION 13.1 Procedure for Resolving Disputes Arising under this Agreement A major objective of this Agreement is to eliminate lost time and/or production arising out of disputes, or grievances. Disputes over any work related or industrial matter should be dealt with as close to its source as possible. Disputes over matters arising from this agreement shall be delta with according to the following procedure. An employee or the Union delegate or the Company should initially submit any work related grievance and/or industrial matter to the site foreperson, supervisor or other appropriate site representative of the Company or appropriate union site representative as relevant. If the matter remains unresolved the Union delegate may then submit the matter to the appropriate senior management person. Where relevant the Company may submit the matter to an appropriate Union official. If still not resolved the Union delegate shall refer the matter to an appropriate Union official, who shall discuss the matter with the nominated representative of the Company. If still not resolved there may be discussions between the state secretary and senior management representative. Whilst the above procedures are being followed work should continue as normal. This procedure is to be followed in good faith and without unreasonable delay by any party. Should the matter remain unresolved either of the parties may refer the dispute at first instance to the Victorian Building Industry Disputes Board (which shall deal with the dispute in accordance with VBIA procedures). The Board's decision will be accepted by all parties subject to the right of either party to refer the dispute to the Commission for conciliation and if required arbitration. The Commission's decision will be accepted by all parties subject to legal rights of appeal. . . ." "CLAUSE 20 - SAFETY DISPUTES RESOLUTION PROCEDURE In matters involving the safety of employees or other safety issues, disputes shall be promptly attended to by the employer in such a manner as to avoid further exposing any employee to the risk of injury or industrial disease. Where the nature of the safety issue is of such urgency that it is not reasonably practicable for work to continue in the affected area, or for any cooling off period to be applied, the workforce shall be removed from the section in which safety is the issue and may be transferred to another area unaffected by the problem. All other work on the project shall continue without interruption whilst the procedures of this Agreement are carried out. In all instances, unless the procedure outlined in Clause 20.6 is observed, the Disputes Board shall not award lost time. Nothing contained within this Agreement shall take precedence over the Occupational Health and Safety Act 1985 or other relevant Acts and Regulations. 20.1 It is recognised that the principal contractor has an overall responsibility for safety on the job site, irrespective or whether work is carried out by his/her own employees, or by sub contractors or their employees, but this in no way removes the obligation of individual sub contractors or their employees to observe the appropriate Safety Act. It is also recognised and prescribed in the Occupational Health and Safety Act that every person on a job has a responsibility to take the care of which they are capable for their own health and safety and for the health and safety of any other person who may be affected by their acts or omissions at the work place. 20.2 Safety Supervisor (Officer) 20.2.1 On every job site, the principal contractor shall appoint a member of his/her staff to act as the Safety Supervisor. He/she shall be given the necessary authority to ensure that all safety laws, procedures or Codes of Practice are observed, and that the following Safety Agreement is applied. 20.2.2 The person appointed shall be experienced in the work being performed. Other duties may be assigned by an employer to a Safety Supervisor, provided that such duties shall not prevent him/her from exercising his/her duties as a Safety Supervisor. 20.2.3 Where a Safety Officer has been appointed by a contractor, his/her primary duties shall be Safety Officer. 20.3 Workers' Safety Representative 20.3.1 On every job site, workers may elect a Workers' Safety Representative in accordance with the Act. 20.3.2 The Workers' Safety Representative/s shall consult with the principal contractor, or persons acting on his/her behalf, on matters directly concerned with safety of workers, and promote the safe conduct of work generally. 20.3.3 The Workers' Representative/s shall be elected by the employees on the job on a democratic basis, and shall be subject to recall by a similar process. 20.3.4 A Workers' Safety Representative may not necessarily be a union job steward. 20.4 Duties of Safety Supervisor and Workers' Safety Representative The Safety Supervisor and the Workers' Safety Representative/s shall be responsible for carrying out regular safety inspections, investigating safety complaints, taking all steps to ensure that safe work practices are observed, and that safety laws, procedures or Codes of Practice are strictly observed. 20.5 Safety Committee 20.5.1 A Safety Committee may be established on a job by agreement between the principal contractor and the workers on the job, or their unions. 20.5.2 Where a Safety Committee is established on a job, it shall include the employer's Safety Supervisor and the Workers' Safety Representative/s. 20.5.3 The Committee may, by agreement, include additional Workers' Representatives and Employer Representatives of significant sub contractors. 20.5.4 The Safety Committee shall meet as often as is necessary to provide an overview of safety on the job, and assist in the promotion of a safe working environment on the job. The Safety Committee shall minute the meetings and determine an action plan for the rectification of unsafe items. 20.6 Procedure and Resolution of Disagreements 20.6.1 The parties agree to follow this procedure when dealing with occupational health and safety issues on building sites. Where a claim for lost time is referred to the Disputes Board, the Board shall not award payment for lost time unless it is satisfied that the total observations of Clause 20.6 was not possible. 20.6.2 The Safety Supervisor and the elected Health and Safety Representative/s shall confer and agree to safe working procedure that minimise the risk of injury or the contraction of any industrial disease by employees. 20.6.3 These procedures shall involve the implementation of relevant Codes of Practice of industry agreed safety procedures. 20.6.4 Where the Safety Supervisor and the Health and Safety Representative/s cannot agree on a procedure, either party may call in a Workcover Inspector, who may advise as to whether or not, in his/her opinion, the proposed work procedure/s will involve a risk to health and safety of any person. 20.6.5 In these discussions, the Health and Safety Representative/s may also seek the assistance of his/her union, and the Safety Supervisor may seek the advice and assistance of the appropriate employer association. 20.6.6 Subject to Sub Clause 20.6.7, work shall continue as normal during these discussions. 20.6.7 Where the Safety Supervisor or Health and Safety Representative/s consider there exists an immediate threat to the health and safety of any person on site, they may jointly or singularly, after consultation, direct that work in that particular area, or by that particular method, shall cease. 20.6.8 In this section, "immediate risk" means that there is a degree of danger which is likely to cause injury or disease which is likely to occur before the risk can be eliminated. 20.6.9 Work in the affected area/s shall cease and employees shall be relocated to work in alternative safe work areas on the site where there is work available for their particular classifications. 20.6.10 Employees may be relocated to other job sites where there is safe work for their particular classification. 20.6.11 Where there is no work available for particular employees, they shall remain onsite and make themselves readily available for resumption of work, without loss of pay. Failure to do so shall negate any payment. 20.6.12 The Safety Supervisor and the Health and Safety Representative/s shall confer on the best possible method of rectifying the problem. 20.6.13 In these discussions, the Health and Safety Representative/s may also seek the assistance of his/her union, and the Safety Supervisor may seek the advice and assistance of the appropriate employer association. 20.6.14 Where the parties cannot reach agreement, they may call in a Workcover Inspector, who may assist the parties to determine the appropriate method of rectifying any concerns in accordance with the Occupational Health & Safety Act 1985 (as amended). 20.6.15 If the Inspector issues a Prohibition Notice or otherwise determines that there was reasonable cause for employees to be concerned for their health and safety; any such employee who, as a result of the issue arising at the workplace does not work for any period pending the resolution of the issue, shall be entitled to be paid for that period. 20.6.16 The over-riding concern shall be to minimise exposing any employee to the risk of injury or industrial disease. 20.6.17 During these discussions work shall only continue in the safe areas on site. This work shall continue without interruption. 20.7 Rectification of Safety 20.7.1 Where a site has been stopped for a defined period time and workers sent off site by agreement between Site Managers and any combination of Union Official/s and/or the Health and Safety Committee, those people who remain on site to do rectification work will be paid penalty rates. The same applies where the project is excessively wet, thereby preventing the workforce leaving the sheds and employees are required to remove that excessive water. 20.7.2 This would not be applicable on normal de watering or normal housekeeping work or where a section of the site has been declared unsafe and normal rectification occurs whilst the remainder of the site carries on working. It is agreed that any "housekeeping" work performed on projects is to be paid at single time rate. 20.8 Sabotage 20.8.1 Sabotage is of concern to all parties involved on any work site and may affect safety, and therefore both the physical and mental well being of all persons on site. 20.8.2 The parties to this Agreement will not tolerate sabotage, and will ensure that any person responsible for such action is immediately dismissed. 20.8.3 It is accepted that the relevant authorities may have to be notified, and provisions of the Occupational Health and Safety Act implemented. 20.9 Material Safety Data Sheets The parties agree that the Worksafe Australia Guidance Notes on Material Safety Data Sheets shall be observed at all times." [10] Grocon submits that the Commission should make an order pursuant to s.127 (2) of the WR Act to prevent industrial action by the CFMEU and CEPU and their members until the RACV Project is completed. It is contended that the evidence shows a long standing pattern of illegitimate industrial action by the CFMEU and CEPU and their members which is in breach of the dispute resolution procedures in the relevant industrial instruments. This industrial action is characterised as falling within five broad categories: weather related stoppages (employees and sub-contractors ceasing work at the direction of union representatives on the basis of alleged concerns in relation to "inclement weather" in circumstances where such concerns are not justified); alleged safety incident stoppages (employees and sub-contractors ceasing work at the direction of union representatives after alleged safety incidents in circumstances where the alleged incidents do not justify a work stoppage); state wide industry stoppages (employees and sub-contractors ceasing work at the direction of union representatives to attend rallies and other gatherings organised by the union movement on a state-wide basis); working hours bans and limitations (bans and limitations placed on certain working arrangements permitted by the governing industrial instruments); and subcontractor stoppages (industrial action organised and engaged in by union representatives with respect to subcontractors engaged at the RACV Project). [11] In reply the CFMEU submitted that the evidence did not support a finding that industrial action was "probable" within the meaning of s.127 (1). I deal with the submissions of the parties in respect of jurisdiction and discretion later in this decision. Jurisdiction General [12] The nature of s.127 proceedings was canvassed in a decision by a Full Bench of the Commission in Coal and Allied Operations Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union 4 (the Coal and Allied decision ). [13] In the Coal and Allied decision the Commission noted that a direction to stop industrial action has the effect of imposing on the person to whom the order is expressed to apply, a duty to comply with the order. The coming into existence of that duty exposes such a person to an injunction against conduct that would contravene the statutory duty in s.127 (5) to comply with the order. Thus, the effect of a direction by order under s.127 (1) is to cause conduct in contravention of it to be unlawful. [14] The clear purpose of an order under s.127 is to direct that particular industrial action not occur. For that and other purposes, what may constitute "industrial action" is widely defined. Plainly, the function of the power in s.127 is to discourage or prevent certain kinds of industrial action by allowing for the imposition of a duty to not take the action. 5 [15] The Commission only has jurisdiction to issue a s.127 order or direction if: (a) industrial action is happening, threatened, impending or probable; and (b) that industrial action is in relation to: an industrial dispute; or the negotiation or proposed negotiation of an agreement under Division 2 of Part VIB of the WR Act ; or work that is regulated by an award or certified agreement; and (c) the application is brought by a person who is likely to be directly affected by the industrial action. [16] If these prerequisites are not met there is no power to make an order or issue a direction. The applicant bears the onus of satisfying the Commission as to the jurisdictional prerequisites to the discretion in s.127 (1) being exercised. 6 [17] In the matter before me the jurisdictional facts required are that: industrial action is happening, threatened, impending or probable; and that industrial action is in relation to work that is regulated by an award or certified agreement; and the application is brought by a person who is likely to be directly affected by the industrial action. [18] Grocon contended that further industrial action is "probable" at the RACV Project. It is said that the CFMEU and CEPU and their members have a demonstrated history of taking industrial action and that there is a culture of pressing industrial objectives through unlawful activity rather than agreed process and industrial merit. Grocon provided the following chronology of industrial action which has occurred at the RACV Project 7 : Chronology of Industrial Action at the RACV Project - March 2003 to June 2004 Date Classification of event Event Paragraph reference 20 March 2003 Wet weather stoppage Three hour site stoppage directed by Mr Sam Sposito (CFMEU Shop Steward) in claim for payment for an inclement weather stoppage on 4 March 2003. Unions later claimed payment for this stoppage at the Victorian Building Industry Disputes Board ( VBIDB ). (See decision below.) Statement of Ian Skinner Paras 48-51 21 March 2003 State wide stoppage Protest rally against the war in Iraq. Statement of Ian Skinner Para 98 22 March 2003 Weekend wet weather dispute All workers on site sat in the sheds from 7.00am due to inclement conditions. Mr Sposito directed workers to leave the site at 11.00am claiming an entitlement to payment for the entire day under clause 21.11 of the National building and Construction Industry Award 2000 (Award) . (See decision below.) Statement of Ian Skinner Paras 52-56 28 March 2003 Wet weather stoppage/ threats of further action Mass meeting (excluding members of the CEPU) directed by Mr Sposito at 1.00pm, and addressed by Mr John Setka (CFMEU Organiser) and Noel Washington (CFMEU FEDFA Organiser) in relation to 22 March 2003 claim for payment. Meeting between Messrs Setka, Washington, Sposito, Benny Paolini (CFMEU FEDFA Shop Steward), John Mazzone (former CFMEU Health and Safety Representative) and Ian Skinner (RACV Project Manager). Mr Setka said "I don't care how long it takes to finish this job... there will be a lot of disruption and lost productivity.. I don't care how much money Grocon loses". Statement of Ian Skinner Paras 57-61 Decision of VBIDB in relation to 4, 20 and 22 March 2004, that dewatering time is not included in calculation of the four hour Award inclement weather provisions (20 May 2004). 1 April 2003 Subcontractor stoppage Mr Sposito directed Grocon scaffolders to cease working with subcontractor scaffolders because of different rates of pay. Mr Greg Gelsumini (RACV Site Manager) later directed Grocon scaffolders to recommence previous task. Mr Sposito again directed scaffolders to cease work. Statement of Greg Gelsumini Paras 50-52 2 April 2003 Threat of further action Meeting between Messrs Skinner, Gelsumini and Sposito. Mr Sposito said to Mr Gelsumini "I'm going to fix you and this job up". He then said to Mr Skinner " If you don't get rid of that person [Gelsumini], I'm going to fix this job right up!" Mr Gelsumini asked Mr Sposito if that was a threat. Mr Sposito replied, "Yes, take it how you want". Statement of Ian Skinner Para 143-145 29 April 2003 State wide stoppage Rally in support of Martin Kingham. Statement of Ian Skinner Para 99-100 1 May 2003 State wide stoppage/alleged safety stoppage Site stoppage as a result of the May Day Rally. Statement of Ian Skinner Paras 101-102 2 June 2003 Working hours/alleged safety issue Mr Sposito refused to agree to after hours work on lower levels if no stand by crane crew on alleging that the site is unsafe without the crane crew present. Statement of Peter Green Paras 7-14 Statement of Greg Gelsumini Para 53 13 June 2003 Work bans Messrs Mazzone and Sposito directed the crane crew not to work overtime to jump the crane, on the basis that they alleged conditions were inclement. No agreement was reached with Grocon that the conditions were inclement, and they did not consult with Grocon before imposing this ban. Statement of Greg Gelsumini Para 54 20 June 2003 Subcontractor stoppage Employees of AC Constructions and Diso Constructions (RACV subcontractors) directed to cease work by Mr Sposito due to alleged failure to pay superannuation and insurance payments. Both subcontractors maintained that they had paid the amounts due but that they had not been provided with a receipt. Statement of Greg Gelsumini Paras 57-59 31 July 2003 Inclement weather agreement Site Safety Committee ( SSC ) members attempted to agree a wet weather procedure to apply at the site. This procedure involves the SSC splitting into two groups to walk over the site after rain, and for at least one representative of Grocon and one union representative to agree that conditions are no longer inclement. Later on this day, Mr Sposito informed Mr Green that he would re-close dewatered areas which were opened by a Grocon representative on the SSC in conjunction with Mr Paolini. Statement of Ian Skinner Para 64-65 Statement of Greg Gelsumini Paras 8-9 6 August 2003 Inclement weather dispute Messrs Sposito and Mazzone said to Mr Green that they would not allow work to commence in dewatered areas opened by Mr Paolini (in consultation with a Grocon representative). Statement of Peter Green Paras 15-16 Statement of Ian Skinner Para 65 19 August 2003 Alleged safety stoppage Incident involving a dumpster unit falling 2.5 metres into a lift shaft whilst it was being used to transfer concrete. Dispute taken to VBIDB by the unions. (See decision below). Statement of Greg Gelsumini Para 17 26 August 2003 Work ban Mr Sposito directed Grocon scaffolders to cease dismantling a scaffold on the basis that as a subcontractor erected the scaffold, a subcontractor must dismantle the scaffold. Statement of Peter Green Paras 17-19 27 August 2003 Alleged safety stoppage Mass meeting and subsequent stoppage directed by Messrs Sposito, Mazzone, Paolini and Ms Vanessa Garbett (CEPU ETU Shop Steward) regarding safety incident on 19 August 2003. Statement of Greg Gelsumini Paras 18-23 Decision of VBIDB in relation to 19 August 2003, and subsequent action on 27 August 2003. No claim for payment could be maintained by the unions (5 September 2003). 8 October 2003 State wide stoppage Site stoppage in order to protest against amendments to the Workplace Relations Act 1996. Statement of Ian Skinner Para 103 27 October 2003 State wide stoppage Site stoppage to attend rally in support of Mr Setka who had been charged with a criminal offence. Statement of Ian Skinner Para 104 10 November 2003 Working hours dispute Written request by Mr Skinner for work to be performed on Sunday 16 November by employees who have not worked 56 hours and employees excluded from the cap under 7.2(f) of the Agreement. Mr Paolini verbally refused without reasons. Statement of Ian Skinner Paras 112-113 Statement of Greg Gelsumini Para 55 11 November 2003 State wide stoppage Site stoppage to attend rally against changes to Medicare. Statement of Ian Skinner Paras 105-106 20 November 2003 Inclement weather dispute/ safety Mr Sposito closed level 4 of the Project on the basis of alleged inclemency due to wet weather. There was no agreement from representatives of Grocon that conditions were inclement. Statement of Peter Green Paras 20-22 Statement of Greg Gelsumini Paras 10-11 28 November 2003 Subcontractor stoppage/ work bans Messrs Mazzone and Spiernovasilis (CFMEU Organiser) directed employees of AC Constructions and Diso Constructions to cease work because Grocon no longer required employees of AC Construction to work at the MCG and RACV sites. CFMEU representatives also imposed the following work bans for 24 hours: · no concrete deliveries and placing of concrete; · no deliveries of materials relating to work performed by CFMEU members (CEPU work unaffected); · no jumping of the lift core systems; and · no provision of CFMEU members for first aid and Peggy (janitor) duties on the following Sunday (this ban was later removed shortly after it was stated). Statement of Ian Skinner Paras 134-139 Early December 2003 Inclement weather/threats of further action Conversation between Messrs Gelsumini and Sposito in relation to the continuation of work on the top deck in the shade during temperatures between 32˚ and 35˚ Celsius (as had occurred during the previous summer). Mr Sposito stated that the men must be put under cover and he "made a mistake last year. I have been told that this year we can't work in the shade" . Statement of Greg Gelsumini Paras 13-14 5 December 2003 FEDFA state wide stoppage Stoppage of CFMEU FEDFA members directed by Mr Paolini to attend meeting in relation to proposed merger with Construction and General Divisions of the CFMEU. Statement of Ian Skinner Para 107 8 December 2003 Alleged hot weather stoppage Mr Sposito directed employees working on the top deck to cease work and to move to covered areas without consultation with Grocon when the temperature reached 32˚ Celsius. Statement of Greg Gelsumini Para 15 9 December 2003 Alleged hot weather stoppage Mr Sposito directed employees working on the top deck to cease work and to move to covered areas without consultation when the temperature reached 32˚ Celsius. Statement of Greg Gelsumini Para 16 30 January 2004 Inclement weather dispute Mr Sposito threatened to direct employees to leave the site because of water near the first aid office. Mr Sposito later organised a mass meeting and directed all workers on site to cease work, on the basis that time spent dewatering is included in the calculation of the four hour inclement weather period under clause 21.11 of the Award. Statement of Ian Skinner Paras 66-76 Statement of Peter Green Paras 23-25 VBIDB refused to give a decision in relation to inclement weather dispute on 30 January 2004 on the basis that the VBIDB is awaiting ruling from the VBIDB Consultative Committee (6 February 2004). 3 February 2004 Mass meeting/ threat of further industrial action Claims made by Mr Setka for payment for 30 January 2004 stoppage. Mass meeting directed by Messrs Setka, Washington and Kevin Fitzgerald (CEPU Organiser). Motion passed that all employees go home for the day. Mr Setka threatened Grocon with further industrial action on 6 February 2004. Statement of Ian Skinner Paras 82-84 Statement of Greg Gelsumini Paras 62-63 8 February 2004 Working hours dispute Written request by Mr Skinner to CFMEU for work to be performed by crane crew on Sunday 8 February. No response by CFMEU. Work did not go ahead. Statement of Ian Skinner Para 114 11 February 2004 Inclement weather/work bans Mr Sposito threatened Grocon that a planned concrete pour would not go ahead if Mr Sposito was not consulted before hand, as Mr Sposito was alleging it was raining. Statement of Greg Gelsumini Para 12 17 February 2004 Subcontractor stoppage Mr Sposito directed employees of GNA Bricklaying to cease work on the basis that the subcontractor had not provided receipts to him for Incolink payments. Statement of Greg Gelsumini Para 60 February - March 2004 Working hours dispute Mr Sposito directed concreters not to commence work at the earlier time of 6.30am on the basis that his approval had not been sought. Statement of Ian Skinner Para 132 16 March 2004 Subcontractor stoppage Mr Sposito directed employees of GNA Bricklaying, Asset, MC Labour and Steelcon to cease work on the basis that the subcontractors had not provided receipts to him for Incolink payments. Statement of Greg Gelsumini Para 61 23 March 2004 Alleged safety incident Mr Sposito instructed an employee of Steelcon performing concrete drilling to cease work on the basis that the work was repetitive and the employee had been "working too hard." Statement of Ian Skinner Paras 140-141 Statement of Greg Gelsumini Paras 24-25 14 April 2004 Working hours dispute/safety Mr Setka informed Mr Skinner that the CFMEU's agreement to planned weekend works on 18 April 2004 was dependent on Grocon's position in relation to the CFMEU's claim for an additional CFMEU health and safety representative on the Project. Statement of Ian Skinner Para 115-128 16 April 2004 Working hours dispute Conversation between Messrs Skinner, Mazzone and Cody. Mr Mazzone agreed to planned works on 18 April 2004 going ahead. Mr Sposito later withdrew this agreement. Statement of Ian Skinner Paras 121 -126 16 April 2004 Working hours dispute Conversation between Messrs Setka and Gelsumini. Mr Setka said that that there would be no Sunday work as planned and no flexibilities during the week. He stated that the bans would apply "for the whole of the next month in remembrance of the ANZACs". Statement of Greg Gelsumini Para 30 16 April 2004 Threat of further action Conversation between Mr Sposito and Mr Skinner. Mr Sposito said, "this site is going to get more trouble than you bargained for from now on". Statement of Ian Skinner Para 125 18 April 2004 Working hours dispute Works requested by Grocon not performed. Statement of Ian Skinner Paras 128 1 May 2004 State wide stoppage Site stoppage in relation to May Day Rally. Statement of Ian Skinner Para 108 10 May 2004 State wide stoppage Site stoppage in order to attend rally in support of Mr Craig Johnston (formed AMWU official). Statement of Ian Skinner Para 109 20 May 2004 Alleged safety stoppage Messrs Setka and Sposito convened mass meeting in relation to an alleged safety incident involving a concrete leak. Mr Setka claimed double time payment for workers to complete the pour and clean up the leak, and full payment for the remaining employees who were directed to cease work by CFMEU representatives. Statement of Ian Skinner Paras 90-96 Statement of Greg Gelsumini Paras 31-38 21 May 2004 Alleged safety stoppage Mass meeting directed by CFMEU representatives regarding concrete incident the previous day. Statement of Greg Gelsumini Para 39 22 May 2004 Alleged safety stoppage Continued stoppage from 21 May 2004 by all workers on the Project. Statement of Greg Gelsumini Para 40 24 May 2004 Alleged safety stoppage Mass meeting convened by Messrs Setka and Sposito in relation to continued stoppage after concrete leak on 20 May 2004. Motion passed that workers continue the work stoppage until Wednesday 26 May 2004, meaning five days work was lost. Statement of Peter Green Paras 31-34 Statement of Greg Gelsumini Paras 41-44 Decision of VBIDB regarding payment of other workers for stoppage 20 -26 May 2004, that employees be paid for stoppages on Thursday 20 May 2004, and subsequent meetings on 21, 24 and 26 May 2004 (1 June 2004). 28 May 2004 Working hours dispute Mr Sposito directed a Grocon employee not to commence work at 6.30am on the basis that Mr Gelsumini did not inform Mr Sposito of the arrangement. Statement of Ian Skinner Para 132 Statement of Greg Gelsumini Para 56 2 June 2004 Threat of further industrial action Discussions between Messrs Sposito and Gelsumini in relation to weekend work. Mr Sposito said " I will slow this job down. I will fuck this job....I am going to make this job work 8 hours a day, 5 days a week". Statement of Greg Gelsumini Paras 64-65 2 June 2004 Inclement weather dispute Mr Sposito directed workers to cease work on the top deck (without consultation with Grocon) on the basis that conditions were inclement, stating, "I will determine when its raining or not". Statement of Greg Gelsumini Paras 66-68 4 June 2004 Work ban/ Crane crew directed to cease work by Mr Cody on the basis of an alleged safety issue involving the crane. Statement of Greg Gelsumini Para s 45 -46 4 June 2004 Alleged safety incident Site directed to cease work by Mr Sposito on the basis of an alleged safety incident involving a concrete spillage. Two subsequent mass meetings held in relation to the issue. Statement of Greg Gelsumini Paras 47-49 [19] Grocon submits that: ". . . The evidence shows a long-standing pattern of illegitimate industrial action by the CFMEU and CEPU and their respective officers, officials and members, involving (inter alia) action in breach of the disputes resolution procedure, inclement weather provisions and safety disputes resolution procedure of the relevant industrial instruments. . . . . . . the CFMEU and CEPU approach at the RACV Project is one of an embedded culture of organising direct action to deal with disputes and not following agreed processes in the applicable industrial instruments. . . . There is a culture of pressing industrial objectives through unlawful activity rather than agreed process and industrial merit. This culture cannot be condoned and warrants an order for considerable length to address it." 8 [20] Like most major construction projects, there are particular dates on which Grocon must deliver the completed RACV Project to its client. Grocon is significantly behind its construction schedule on this project. Construction schedules are set in order to ensure that Grocon meets the delivery dates for the handover of the completed project to its client. If Grocon fails to meet these handover dates then it will suffer financial and non-financial consequences. 9 The RACV Project is currently some 160 days behind schedule. 10 [21] The CFMEU disputed Grocon's contention that further industrial action is probable. In this regard the union contended that properly characterised the incidents relied on by Grocon do not support a finding that further industrial action was probable. It is argued that the inclement weather disputes are about the proper interpretation of the relevant industrial instrument and as such do not constitute industrial action. Similarly it is said that the State-wide stoppages should be characterised as political, rather than industrial, action. [22] In relation to safety issues the union contends that there are no safety issues which are pointed to which would warrant a finding that there will be industrial action in respect of such matters. It is acknowledged that it may be open to the Commission to find that there will be further safety disputes. That is, the parties may have different views about how safety matters are to be resolved, but it is argued that this would not support a finding that it is probable that there will be industrial action in relation to unspecified safety matters. [23] In relation to the alleged working hours bans and limitations the union argues that its conduct does not amount to industrial action. The occasions where the union has refused to consent to requests for the working of additional hours do not constitute industrial action but rather refusal to consent to additional hours. 11 [24] The requirement that industrial action be "probable" involves a degree of subjective evaluation and judgment. A pattern of intermittent but continued industrial action may be sufficient to support a finding that industrial action is "probable" . It is not necessary that industrial action be occurring at the time of making any orders under s.127 . 12 [25] I am satisfied that further industrial action by the CFMEU and its members at the RACV Project is probable within the meaning of s.127 (1). In particular I find that the following forms of industrial action are probable: the failure or refusal by persons to attend for work or a failure or refusal to perform any work at all by persons who attend for work; bans, limitations or restrictions on the performance of work, or an acceptance of or offering for work; and the performance of work in a manner different from that in which it is customarily performed, or the adoption of a practice in relation to work, the result of which is a restriction or limitation on, or a delay in, the performance of work. [26] I do not propose to canvass all of the evidence in respect of each of the stoppages and bans which have taken place. In my view that evidence clearly establishes that the CFMEU and its members, at the instigation of their representatives on site, have engaged in a pattern of intermittent but continued industrial action. [27] A number of unauthorised stop work meetings have occurred on this site. These meetings have not been authorised by either the employer or the relevant industrial instruments. A significant portion of the evidence led by Grocon in this regard was not challenged and no rebuttal evidence was led by the unions. [28] There have been a number of work bans, unauthorised mass meetings and associated stoppages on the Project as a result of disputes relating to inclement weather. 13 There have also been several threats of further industrial action made by CFMEU representatives. In his statement Mr Skinner recounted one such threat, in the following terms: "On 2 April 2003 at approximately 11.00am, I had a conversation with Mr Gelsumini and Mr Sposito the ground level of the Project, near little Collins street. During this conversation, we discussed the scaffolding incident which occurred on 1 April 2003 involving Boral scaffolders. During this conversation, Mr Sposito said to Mr Gelsumini words to the effect; "I'm going to fix you and this job up". Mr Sposito then turned to me and said; "if you don't get rid of this person [Gelsumini], I'm going to fix this job right up!" Mr Gelsumini then asked Mr Sposito whether his comment was a threat. Mr Sposito replied with words to the effect; "Yes, take it how you want." [29] More recently, in conversation with Mr Gelsumini on 2 June 2004, Mr Sposito said words to the following effect in relation to his intentions regarding the RACV Project: "I will slow this job down. I will fuck this job. Grollo are a bunch of cunts. I'm going to make this job work 8 hours a day, 5 days a week. I'm a real steward, I work for my money not like other stewards that rip off the company." 14 [30] The actions of the CFMEU's site representatives shows a persistent disregard for the dispute resolution procedures in the relevant industrial instruments. I agree with the contention advanced by Mr Skene, counsel for Grocon, that there is a culture of pressing industrial objectives through unlawful activity rather than agreed process and merit. [31] I should make it clear that the conclusions stated above are in respect of the CFMEU and its members only. Only a small number of stoppages have been instigated by CEPU representatives 15 and the evidence suggests that a number of the unauthorised stop work meetings called by CFMEU representatives have not been attended by CEPU members. 16 [32] The evidence in respect of industrial action by the employees of subcontractors is limited. Mr Gelsumini deals with subcontractor stoppages at paragraphs 57-61 of his statement. This evidence is summarised below: Date Event 20 June 2003 AC Constructions and Disco Constructions employees directed to stop work by Mr Sposito because their employers had failed to provide receipts proving they had paid superannuation and insurance payments. Disco Constructions was able to provide receipts after about one hour and their employees were allowed to return to work. Receipts in respect of the AC Constructions employees were not provided until the following morning at which point their employees were allowed to recommence work. 17 February 2004 Mr Sposito directed four employees of GNA Bricklaying to stop work for two hours as their employer had not provided receipts for superannuation and insurance payments. 16 March 2004 Mr Sposito directed employees of four subcontractors to cease work due to a failure to provide receipts for Incolink payments. Four GNA Bricklaying employees were prevented from working for five hours, approximately 25 employees from Asset, 15 employees from MC Labour and four employees from Steelcon were prevented from working for 1.5 hours. [33] In his evidence Mr Skinner also made reference to a stoppage by employees of Asset Interiors on 30 January 2004. 17 [34] The applicant also relied on documents said to have been completed by subcontractors working on the RACV Project (see Exhibit A3). These documents purport to show whether or not the subcontractor named authorised certain bans, limitations and stoppages. Mr Skinner dealt with this document in his evidence: "Mr Skene: You raise in your statement a range of examples where employees of subcontractors ceased performing work. What steps have you taken to ascertain whether the employers of those subcontractors have approved the relevant stoppages? Mr Skinner: We had sent out a document to the subcontractors currently listed on our project, asking them to indicate certain dates, of whether they authorised payment and stoppages of their men. Mr Skene: Can you identify that document? Mr Skinner: Yes, I can. This is a copy of documents sent to various subcontractors." 18 "MR SKENE: Mr Skinner, what discussions have you had with subcontractors engaged by Grocon concerning the participation of their employees in industrial action the subject of this application? Mr Skinner: I have had discussions with some of our subcontractors regarding situations where industrial action was taken and whether they - where we have indicated that we were not prepared to pay because it was unauthorised action in that they should not also be paying their employees in that case and that they should not authorise those sorts of stoppages." 19 [35] I do not propose to place any weight on the material marked as Exhibit A3. The documents in question only relate to six subcontractors, are not signed, and there is no evidence in respect of who completed them. Mr Skinner's evidence in this regard is limited to the fact that he sent the form to "various subcontractors" and that he had "discussions with some of our contractors" about whether certain action was authorised or not. Mr Skinner did not indicate with which subcontractors he had had such discussions. The draft order proposed by Grocon seeks to bind the employees of some 36 subcontractors in circumstances where there is no evidence at all in respect to 28 of the subcontractors identified and limited evidence, at best, in relation to the others. [36] I am not satisfied that industrial action by the employees of subcontractors is probable. [37] In addition to the finding set out at paragraph 25 above I am also satisfied that the industrial action is in relation to work that is regulated by a certified agreement, and that the application is brought by a person who is likely to be directly affected by the industrial action. Accordingly I have the requisite jurisdiction to make an order directing that the industrial action not occur. The Exercise of the Discretion [38] The power in s.127 (1) is that "the Commission may , by order, give directions that the industrial action stop or not occur" . The determination of an application for a s.127 order requires the exercise of a discretion. 20 [39] In the Coal and Allied decision the Commission considered, among other things, the general nature of the power in s.127 and the considerations relevant to the exercise of the Commission's discretion in s.127 (1). [40] The conclusions reached by the Commission in the Coal and Allied decision , to the extent that they may be relevant to the matter before me, can be summarised as follows: 1. The onus on an applicant for an order under s.127 extends to establishing, at least on a prima facie basis, that there are adequate grounds for the Commission ordering that the relevant action stop or not occur. 21 2. The identification of considerations relevant to the exercise of discretion should be guided by the objects of the WR Act and an understanding of the relationship of the power and the effect of its exercise to the scheme of the WR Act . 22 In this regard the Coal and Allied decision states at 324: "The scheme of the Act does not in our view clearly imprint the discretion granted by section 127 with any guiding requirement to the effect that any industrial action that is not protected action should be directed to cease. The norms of the system reflected in the Act are not so specific that all unprotected industrial action must be taken to be of itself unjustifiable." 3. The exercise of such discretion requires that the Commission be satisfied that it is appropriate to direct that the relevant industrial action cease or not occur. The Commission will usually need to be satisfied that the industrial action to be made subject to the order is illegitimate in a sense warranting that it should attract appropriately a direction by the Commission that it cease or not occur. This process requires the evaluation of the character of the industrial action. 4. As a general rule in the exercise of the discretion under s.127 , an order should not be made in relation to industrial action that is considered to be protected action, or plainly likely to be protected action. If the intervention of the Commission is sought in relation to industrial action that is likely to be considered to be protected action, the appropriate course would normally be for an interested negotiating party to apply under s.170MW . 23 [41] In considering whether the industrial action to be made subject to a s.127 order is illegitimate such that it warrants an order rendering it unlawful the Commission has regard to all of the circumstances including the following factors: (i) Conduct of the parties : the conduct of both parties prior to and during the industrial action may be relevant to the determination of whether or not the action is illegitimate. Actions by the applicants to these proceedings which may have provoked or exacerbated the industrial action in question may be relevant to the determination of whether or not that action is illegitimate. (ii) Compliance with disputes procedure : the extent of the compliance with a dispute settlement procedure - by all parties - may also be a relevant consideration. In this regard s.92 provides: "Where the parties to an industrial dispute are bound by an award that provides for procedures for preventing or settling industrial disputes between them, the Commission shall, in considering whether or when it will exercise its powers in relation to the industrial dispute, have regard to the extent to which the procedures (if applicable to the industrial dispute) have been complied with by the parties and the circumstances of any compliance or noncompliance with the procedures." The objects of the WR Act also support such an approach, in particular s.3(e): "(e) providing a framework of rights and responsibilities for employers and employees, and their organisations, which supports fair and effective agreement-making and ensures that they abide by awards and agreements applying to them; " Section 90 provides that in the performance of its functions the Commission must take into account the public interest and for that purpose must have regard to, among other things, the objects of the WR Act . Awards and agreements generally impose reciprocal obligations and it is important that both parties adhere to them. (iii) Certified agreements : if the parties are bound by an agreement certified under Division 4 of Part VIB of the WR Act this may also be relevant as s.170MN provides: "170MN Industrial action etc. must not be taken until after nominal expiry date of certain agreements and awards (1) From the time when: (a) a certified agreement; or (b) an award under subsection 170MX(3) (which deals with the exercise of arbitration powers on termination of a bargaining period); comes into operation until its nominal expiry date has passed, an employee, organisation or officer covered by subsection (2) must not, for the purpose of supporting or advancing claims against the employer in respect of the employment of employees whose employment is subject to the agreement or award, engage in industrial action. (2) For the purposes of subsection (1), the following are covered by this subsection: (a) any employee whose employment is subject to the agreement or award; (b) an organisation of employees that is bound by the agreement or award; (c) an officer or employee of such an organisation acting in that capacity. (3) If the employee, organisation or officer contravenes subsection (1), the action concerned is not protected action. . . ." Industrial action of the kind described in s.170MN is prohibited by the WR Act and hence it would generally be regarded as illegitimate for the purpose of dealing with a s.127 application. The duty imposed by the WR Act is directed to the employees, organisations or persons set out in s.170MN(2). The duty applies to action "for the purpose of supporting or advancing claims against the employer in respect of the employment" subject to the award or agreement. The term "certified agreement" which appears in s.170MN(1)(a) is defined in s.4(1) as an agreement certified under Division 4 of Part VIB of the WR Act . [42] The CFMEU Agreement was certified on 11 March 2003 and remains in force until 31 October 2005. [43] The CFMEU submitted that the Commission should exercise its discretion by declining to issue the order sought. [44] Mr Maddison, appearing on behalf of the CFMEU, submitted that a s.127 order would not necessarily resolve the underlying disputes or issues between the parties in this matter. It was argued that the evidence established that there was a lack of understanding about the rights and obligations of the parties under the relevant industrial instruments. In this regard Mr Maddison proposed the following course of action: ". . . there needs to be some education so people do have an understanding and on the part of the CFMEU we would in relation to our on site representatives bring them in, have a couple of sessions over a couple of weeks and go through the agreements, the awards, the VBIA, what the requirements are, what are the proper processes, yes, you do need to have consultation prior to relocating, you don't need agreement, go through those things. We would say that Grocon should undertake the same exercise in respect of their on site personnel. After that process has been completed the people who are undertaking the task of going through that on behalf of the CFMEU and Grocon would get together, see where they may be apart on interpretations or how things should operate. . . . It may be with a better understanding that, and I think you would find, that that level of disputation would drop significantly." 24 [45] For my part I accept that a number of the stoppages that have taken place over the past 15 months have been precipitated by the actions of Grocon management. For example, where Mr Gelsumini failed to report to the site safety committee that a dumpster had fallen down a lift shaft. 25 [46] I also accept that some of the disputes in respect of working hours do not amount to industrial action as the CFMEU Agreement provides that the CFMEU's consent to work the additional hours is required. [47] I also note that Grocon has not initiated action pursuant to the dispute resolution procedures in the relevant industrial instruments to resolve the issues which have given rise to a number of the stoppages which have occurred. [48] But while Grocon's actions have been less than perfect, its conduct has not been in breach of its obligations under the WR Act and the relevant industrial instruments. The same cannot be said of the CFMEU and its members. [49] In addition to the conduct of the CFMEU and its members and Grocon, I have had regard to the following matters in the exercise of the discretion in s.127 (1): the failure of the CFMEU and its members to comply with the relevant dispute settlement mechanisms; the currency of the CFMEU Agreement and the operation of s.170MN of the WR Act ; the impact of the industrial action; the fact that the parties have access to "private arbitration" pursuant to the CFMEU Agreement , to resolve any dispute if the parties are unable to resolve it themselves, without disruption to normal work; and the objects of the WR Act and in particular s.3(e). [50] I have given serious consideration to Mr Maddison's suggestion that steps be taken to ensure that the CFMEU and Grocon representatives on site have a better understanding of their rights and obligations. I think this proposal has merit and I strongly recommend the parties take the steps outlined by Mr Maddison. The Commission can assist in this regard if required. While such an initiative will be a step in improving the conduct of the parties I am not persuaded that, of itself, it will be sufficient. [51] Having regard to the above matters I have concluded that it is appropriate to issue an order rendering the industrial action, which I have found to be probable, unlawful. I now turn to the form of that order. Form of the Order [52] An order pursuant to s.127 has serious consequences for those subject to it and in the event of non-compliance will expose them to proceedings to enforce the order in the Federal Court. [53] The jurisdiction of the Commission pursuant to s.127 (1) is to "by order, give directions that the industrial action stop or not occur" (emphasis added). The word " the " has been chosen rather than the word " any " . In this regard the Full Bench in the Coal and Allied decision said: "The direction under s.127 must be that ` the industrial action stop or not occur'. Hence the order is specific to the industrial action found to be happening, or to be probable, for purposes of attracting the jurisdiction." 26 [54] In my view a s.127 order should: be unambiguous and specific; be explicit and clearly directed to those whose conduct should be curtailed if the order and the WR Act are to be observed; leave no room for doubt or ambiguity as to the obligations of those affected by it; and clearly identify the persons upon whom it is binding and the precise conduct which it seeks to prohibit. [55] I have sought to apply the above principles to the framing of the order I intend to make pursuant to this decision. [56] In the event that I was not persuaded by their submissions in respect of jurisdiction and discretion the CFMEU contended that the proposed order sought by Grocon should be varied in a number of respects. In particular: the order should be of limited duration, similar to the approach adopted in the Exhibition St matter; any order should not extend to the employees of the subcontractors listed in Annexure A; and the applicant, not the CFMEU, should be responsible for serving the order on Grocon's employees and there should be personal service on those affected by the order. [57] I accept a number of the CFMEU's contentions regarding the form of the order sought. I agree that there is insufficient evidence in respect of the employees of the subcontractors listed in Annexure A. While these employees may have participated in the various stoppages, bans and limitations, the evidence is very limited. The order will not extend to the employees of the subcontractors listed in Annexure A. [58] Nor will the order extend to the CEPU, its members and officials. I have already indicated that there is insufficient evidence to support a finding that further industrial action by the CEPU and its members is "probable" . Accordingly there is no power to issue an order binding them. [59] The CFMEU and its officials are in a different category. While the evidence in regard to the direct involvement of full-time CFMEU officials is limited it is clear that the industrial action which has taken place has been at the instigation of the CFMEU's on-site representatives, in particular Mr Sposito. There is no suggestion that Mr Sposito has been acting without the authority of the CFMEU. In my view it is appropriate that the CFMEU and its officials be bound by the order. [60] In relation to service, it is appropriate that the applicant assume the responsibility for serving the order in the manner set out. [61] In relation to the term of the order I agree with the CFMEU's contention that the term proposed by Grocon is not appropriate. [62] It is to be hoped that the order will act as a circuit breaker and assist in bringing about a cultural change at the site such that industrial issues are resolved through the processes specified in the relevant industrial instruments rather than by resorting to industrial action. In this regard I direct that in addition to serving the order in the manner prescribed Grocon is to serve a copy of the statement set out at Annexure 2 on each of its employees working on the RACV site as soon as practicable. [63] In conclusion I wish to make it clear that the order and statement speak for themselves and accordingly a stop work meeting to discuss these issues, as occurred at the Exhibition Street site, is completely unwarranted. [64] The order will operate until 23 September 2004. In the event that there is no change in the existing practice on the site the term may be extended, on application. Appearances: H. Skene for Grocon Constructors Pty Ltd. J. Maddison for the Construction, Forestry, Mining and Energy Union. J. Cooney for the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia. Hearing details: 2004. Melbourne: May 24. July 13 and 14. Printed by authority of the Commonwealth Government Printer <Price code G> ANNEXURE 1 PROPOSED ORDER 1 Title This Order shall be known as the Grocon RACV Project Industrial Action Order 2004 . 2 Application This Order applies to work and employment regulated by the Grocon Victoria Enterprise Agreement 2002 - 2005, the Grocon Constructors and related Grocon corporate entities - ETU Enterprise Agreement 2003-2005 and the Grocon and CEPU Enterprise Agreement 1999-2002 at the RACV Project Site at 501 Bourke Street, Melbourne, Victoria and to work and employment regulated by the agreements and awards applying to the contractors listed in Annexure A. 3 Parties Bound 3.1 This order is binding upon: (a) Grocon Constructors Pty Ltd (ACN 006 703 091) (Grocon); (b) Construction, Forestry, Mining and Energy Union (CFMEU); (c) Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU); (d) Officials, employees and agents of the CFMEU and the CEPU (unions); (e) Employees of Grocon at the RACV Project Site who are eligible to be members of the above unions; and (f) Employees of contractors listed in Annexure A performing work at the RACV Project Site. 3.2 The persons and organisations listed in clause 3.1 above shall comply with the direction in clause 4 of this order. 4 Direction that Industrial Action to Stop or Not Occur 4.1 All persons and organisations listed in clause 3.1 must stop, not commence, not engage in or threaten to engage in, any industrial action to which this order applies, including in particular strikes, unauthorised stoppages, and any other ban or limitation on the performance of work by employees of Grocon or the contractors in Annexure A to whom this order applies at the RACV Project Site. 4.2 The unions, by their officers, delegates, agents and employees, must stop and must not recommence any industrial action. 4.3 Acts by the unions (collectively or through their respective officers, agents or employees) to counsel, procure or induce members of those unions employed by Grocon or the contractors in Annexure A to engage in any industrial action to which this order applies shall stop or not be commenced. 4.4 The unions including their employees, officials and agents, must stop and not recommence any ban or limitation on the employees attending for and performing work at the RACV Project Site and must not direct, procure, advise or authorise any employees of Grocon or the contractors in Annexure A to stop performing work. 4.5 The unions shall each prepare a written notice, signed by an authorised official of the respective unions, in the following terms: "The Australian Industrial Relations Commission has issued a s.127 order to stop or prevent industrial action. The order is called the Grocon RACV Project Site Industrial Action Order 2004. The order requires that there be no industrial action by persons employed by Grocon or contractors at the RACV Project Site and prevents the union authorising, directing, organising or encouraging any industrial action. The order applies to: _ The CFMEU, its employees, officials and agents; _ The CEPU, its employees, officials and agents; _ all employees of Grocon who are eligible to be members of the above unions and required to perform work at the RACV Project Site; and _ all employees of contractors performing work at the RACV Project Site. To comply with the order, you must proceed to work as directed by site management until the completion of the project. Please speak to your local organiser if you have any questions." 4.6 The unions must provide a copy of this notice to Mr Paul Burns of Freehills, solicitors for the Applicant, on facsimile number 03 9288 1567 by [insert date and time]. 5 Definition of Industrial Action 5.1 For the purposes of this order, the expression "industrial action" means: (a) a failure or refusal by persons to attend for work or a failure or refusal to perform any work at all by persons who attend for work; (b) a ban, limitation or restriction on the performance of work, or an acceptance of or offering for work; (c) the performance of work in a manner different from that in which it is customarily performed, or the adoption of a practice in relation to work, the result of which is a restriction or limitation on, or a delay in, the performance of work; and/or (d) the authorising, directing, organising or encouraging of any person to whom this Order applies to engage in the conduct referred to in paragraphs (a) to (c) above. 5.2 For the purposes of this order, the expression "industrial action" does not include: (a) protected action; (b) action or conduct that is expressly authorised or agreed to by Grocon; or (c) action by an employee if: (1) the action was based on a reasonable concern by the employee about an imminent risk to his or her health or safety; (2) the action was proportionate to the risk; (3) the action was in accordance with the relevant site procedures for dealing with disputes concerning occupational health and safety; and (4) 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 and appropriate for the employee to perform. 6 Service of the Order 6.1 Grocon shall serve a copy of this Order on all persons bound by this Order. 6.2 Service on the unions may be effected by Grocon forwarding a copy of this Order by facsimile transmission to the National Office of the CFMEU and the National Office of the CEPU. 6.3 The unions must take all reasonable steps to notify to each of their members employed by Grocon and employees of the contractors listed in Annexure A at the RACV Project Site by [insert date and time] in the terms of clause 4.5. 6.4 The unions must each disclose to Paul Burns of Freehills, solicitors for the Applicant, on facsimile number 03 9288 1567, the details of the steps taken in compliance with this order by the time referred to in 6.3. 6.5 Service upon employees of Grocon and the contactors listed in Annexure A shall be given by placing a copy of this order on the notice boards usually used for the purpose of communicating with employees on site, by [insert date and time]. 7 Term and Date of Effect This order shall come into effect at [insert time and date] and shall remain in force until the RACV Project is completed in its entirety. Annexure A - Contractors 1 A E Atherton & Sons Pty Ltd 2 Access Hardware Pty Ltd 3 AGL Mechanical Services Pty Ltd 4 Allstaff Airconditioning Pty Ltd 5 Apex Stone Projects Pty Ltd 6 Assett Interiors Pty Ltd 7 Baron Forge Pty Ltd 8 Bell Technology Services Pty Ltd 9 Bluett & Swann Folding Walls Pty Ltd 10 Campbellfield Shopfitters & Glaziers Pty Ltd 11 Contrax Plumbing Pty Ltd 12 Deepseal Pty Ltd 13 Fire Guard Pty Ltd 14 G & A Bricklayers Pty Ltd 15 HH Robertson (Australia) Pty Ltd 16 Higgins Coatings Pty Ltd 17 H&P Refridgeration Engineers Pty Ltd 18 Keystone Installations Pty Ltd 19 Kone Elevators Pty Ltd 20 Ladd Electrical Pty Ltd 21 MC Labour Hire 22 Nilsen Electrics (Vic) Pty Ltd 23 Nomad Scaffolding 24 On-Site Steelfixing Pty Ltd 25 Permasteelisa Pty Ltd 26 Rican Constructors Pty Ltd 27 Sandringham Constructions Pty Ltd 28 Scott Developments Pty Ltd 29 Simon Carpets Commercial Pty Ltd 30 Stilcon Holding Pty Ltd 31 T.A.C. Pacific Pty Ltd 32 Tasman Access Floors Pty Ltd 33 Total Concept Projects Pty Ltd 34 United Doormakers Pty Ltd 35 Upgrade Commerical Interiors Pty Ltd 36 Vinyl Installation Services Pty Ltd ANNEXURE 2 AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION STATEMENT RE: GROCON RACV PROJECT Grocon and the CFMEU are parties to the Grocon Victoria Enterprise Agreement 2002-2005 (the CFMEU Agreement) . This agreement also incorporates the terms of the Victorian Building Industry Agreement 2002-2005 (the VBIA). Both these agreements apply to all Grocon employees working on the RACV Project who are members of the CFMEU. The CFMEU Agreement and the VBIA set down agreed procedures for dealing with disputes that arise on site, including health and safety disputes. These procedures include access to arbitration in the event that the parties are unable to reach agreement. The agreements also provide that work is to continue as normal while a dispute is being resolved through the agreed procedures. Over the course of the past 15 months the actions of the CFMEU's site representatives have shown a persistent disregard for the agreed dispute resolution procedures. Accordingly the Commission has decided to issue a s.127 order which applies to the CFMEU and its members employed by Grocon at the RACV Project. The order comes into effect at 7.00 a.m. on Thursday, 29 July 2004. A s.127 order directs that industrial action, including strikes, unauthorised stoppages and other bans or limitations on the performance of work, not occur while the order is in force. The effect of an order under s.127 is to make conduct in breach of the order unlawful. A s.127 order has serious consequences for those subject to it and in the event of non-compliance will expose them to proceedings to enforce the order in the Federal Court. The order is intended to assist in bringing about a cultural change at the site such that industrial issues are resolved through the agreed processes rather than by resorting to industrial action. The order will operate until 23 September 2004. In the event that there is no change in the existing practice on the site it may be extended. Vice President 28 July 2004 1 See Exhibit A2. 2 See Exhibit A4. 3 See Exhibit A6. 4 (1977) 73 IR 311. 5 (1977) 73 IR 311 at 321. 6 (1977) 73 IR 311 at 317. 7 Annexure A to Exhibit Grocon 7. 8 Exhibit A1 at paragraphs 8, 12 and 14. 9 Statement of Mr Skinner dated 21 June 2004, Exhibit A2 at paragraph 35. 10 Transcript at paragraphs 167-168. 11 See generally Exhibit CFMEU3 at paragraphs 1-14. 12 CFMEU v CBI Constructors Pty Ltd , Print R1748, 10 February 1999 per Giudice J, Polites SDP and Gregor C; Coal and Allied decision , (1997) 73 IR 311 at 317-318. 13 See generally Mr Skinner's statement, Exhibit A2 at paragraph s 45 -87; Mr Gelsumini's statement, Exhibit A4 at paragraphs 7-6 and Mr Green's statement, Exhibit A6 at paragraphs 20-25. 14 See Mr Gelsumini's Statement, Exhibit A4 at paragraph 64. 15 Exhibit A2 at paragraph 42 and Exhibit A6 at paragraph 24. 16 For example see Exhibit A2 at paragraph 58. 17 See Exhibit A2 at paragraph 75. 18 Transcript, 13 July 2004 at paragraphs 103-104. 19 Transcript, 13 July 2004 at paragraph 146. 20 Coal and Allied decision at 318. 21 Coal and Allied decision at 320. 22 Coal and Allied decision at 316-317. 23 Coal and Allied decision at 331-332. 24 Transcript, 14 July 2004 at paragraph s 108 7-1090. 25 Transcript at paragraphs 555-578; Exhibit A4 at paragraph 17. 26 Coal and Allied at 318. The above approach to the construction of s.127 was also taken by Marshall J in Metal Trades Industry Association of Australia v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union . In that case his Honour held that the s.127 order before him was "void for its want of specificity in relation to the particular industrial action sought to be stopped" [VG674 of 1997, 4 December 1997, as yet unreported, at 9-10].