FEDERAL COURT OF AUSTRALIA Director of Fair Work Building Industry Inspectorate v Cartledge [2014] FCA 311 Citation: Director of Fair Work Building Industry Inspectorate v Cartledge [2014] FCA 311 Parties: DIRECTOR OF FAIR WORK BUILDING INDUSTRY INSPECTORATE v AARON CARTLEDGE, JIM O'CONNOR, BRENDON PITT, DAVID BOLTON, LUKE STEPHENSON and CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION File number: SAD 57 of 2014 Judge: MANSFIELD J Date of judgment: 25 March 2014 Date of hearing: 25 March 2014 Place: Adelaide Division: FAIR WORK DIVISION Category: No catchwords Number of paragraphs: 15 Counsel for the Applicant: IM Neil SC Solicitor for the Applicant: Clayton Utz Counsel for the Respondent: N Healy Solicitor for the Respondent: Lieschke & Weatherill IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY FAIR WORK DIVISION SAD 57 of 2014 BETWEEN: DIRECTOR OF FAIR WORK BUILDING INDUSTRY INSPECTORATE Applicant AND: AARON CARTLEDGE First Respondent JIM O'CONNOR Second Respondent BRENDAN PITT Third Respondent DAVID BOLTON Fourth Respondent LUKE STEPHENSON Fifth Respondent CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION Sixth Respondent JUDGE: MANSFIELD J DATE OF ORDER: 25 MARCH 2014 WHERE MADE: ADELAIDE THE COURT ORDERS THAT: 1. Leave to the applicant to file and serve an amended originating application to seek such final injunctions as he may be advised under s 545(2)(a) of the Fair Work Act 2009 (Cth) within seven days. 2. Leave to the applicant to file and serve any further evidence by 2 April 2014. 3. Leave to the respondents to file and serve by 23 April 2014 such affidavits as they may be advised in response to affidavits relied upon by the applicant. 4. Leave to the applicant to file and serve such affidavits as he may be advised strictly in reply by 30 April 2014. 5. Adjourn the directions hearing to 4 pm Adelaide time on 5 May 2014. 6. Pursuant to rule 1.39 of the Federal Court Rules 2011 (Cth), the time for service of the originating documents upon the respondent is extended to 2 pm on 25 March 2014. 7. Liberty to apply. IN RELATION TO THE APPLICATION FOR AN INTERIM INJUNCTION, THE COURT ORDERS THAT: 8. Until further order, each of the first respondent, the second respondent, the third respondent, the fourth respondent, the fifth respondent, and any other organiser of the sixth respondent employed in its Construction and General Division, South Australian Divisional Branch, be restrained from attending the Hansen Yuncken Pty Ltd (Hansen Yuncken) project at 50 Flinders Street, Adelaide, or the project for the construction of the new Royal Adelaide Hospital in which Hansen Yuncken is engaged as a head contractor, unless they are lawfully exercising or seeking to exercise rights in accordance with Part 3-4 of the Fair Work Act 2009 (Cth). 9. Liberty to apply. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY FAIR WORK DIVISION SAD 57 of 2014 BETWEEN: DIRECTOR OF FAIR WORK BUILDING INDUSTRY INSPECTORATE Applicant AND: AARON CARTLEDGE First Respondent JIM O'CONNOR Second Respondent BRENDAN PITT Third Respondent DAVID BOLTON Fourth Respondent LUKE STEPHENSON Fifth Respondent CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION Sixth Respondent JUDGE: MANSFIELD J DATE: 25 MARCH 2014 PLACE: ADELAIDE REASONS FOR JUDGMENT 1 For the orders which I propose to make, I have had the benefit of very helpful and focused submissions on the part of the applicant and on the part of the respondents, and the written outline of background submissions provided by the applicant which, in substantive terms, provides the legislative and rough factual background to the application. I do not need to repeat that. 2 As paragraph 26 of that outline says, the test for an interim injunction under s 545(2)(a) of the Fair Work Act 2009 (Cth) (the FW Act) is in broad terms the same as the test to be applied when the Court is asked to make an interlocutory injunction under its general jurisdiction. The two considerations are whether there is an arguable case or a serious question to be tried (both formulations of the same rough idea), and the balance of convenience on the other. As the authorities indicate, those two factors can operate interchangeably, so that the stronger the case may perhaps mean that the balance of convenience might be weighed in a slightly different way. 3 In this matter, the evidence presently is uncontested, so I determine the application on the basis of the uncontested material. On the basis of that material, in the way in which senior counsel for the applicant has demonstrated, in my view, there is a serious question to be tried that each of the first to fifth respondents engaged in some form of conduct between 19 and 20 March 2014 which involved the contravention of the FW Act, by entering or endeavouring to enter the Hansen Yuncken project at Flinders Street in Adelaide, in contravention of the FW Act by failing to give the appropriate notice. In significant respects, that evidence shows that more than one of the individual respondents did so, having been asked to give the appropriate notice and having chosen not to do so. Also, in the case of the second and third respondents, it suggests that they having engaged in some form of altercation in the process of seeking that entry without giving notice. 4 There are a couple of matters which need specific consideration, having regard to the nature and extent of the injunctions which are sought, or the injunction which is sought. Firstly, there is a question as to whether the conduct can be seen to be only directed to Mitcon, the subcontractor, in respect of the site of the project itself in Flinders Street. The evidence tends to show that the conduct of the respondents, other than the sixth respondent, the Construction, Forestry, Mining and Energy Union (Union) itself, was engaged in, coherently, that is, as part of a group action, directed to the Mitcon employees at the Flinders Street project, because the Union was concerned about permanent employees who were members of the Union being laid off from the Royal Adelaide Hospital Site and not being engaged in the Flinders Street site by Hansen Yuncken. Were that the only evidence, the picture would be that the progressive laying off or the further laying off of permanent employees at the hospital site might continue to attract that concern, but not concern at the hospital site. 5 However, the evidence does indicate that permanent employees of Mitcon are likely to be required by Mitcon to further service the Hansen Yuncken expectations at the hospital site. So it seems to me that, at least as a starting point, it is appropriate to consider making an order which extends to those two sites, rather than simply to the Flinders Street site. 6 The second matter was the extent to which it can properly be said that the conduct should be extended to persons other than the five actors whose conduct is specifically identified, by extending it to other officers of the sixth respondent. 7 In my view, particularly by the involvement of the national organiser, it is at least established on an arguable basis that the conduct engaged in is engaged in by the organisers of the Union on behalf of the Union, and not idiosyncratically by the individuals concerned. I think, therefore, that there is at least an arguable case that it is appropriate to injunct the Union and its officers, and not simply the five persons who have directly, apparently, acted in the way which contravenes the FW Act. 8 As to the balance of convenience, as the Order I propose to make will not prevent the respondents from acting lawfully, but reinforces their legal obligations. So, in my view, it weighs in favour of the applicant. 9 I do not propose to make an order in terms of the order sought in paragraph 22 or, alternatively, in terms of paragraph 24 of the proposed orders, simply because I do not think it appropriate for the Court to make an order which prevents persons from engaging in conduct which may be entirely lawful, being within 50 metres of a building site even if it is permitting such movement, for reasons unconnected with the project. 10 Whilst the conduct which, at least on an arguable basis, I have found to have been established, does indicate, arguably, some contravention of the FW Act; it does not demonstrate that officers of the Union will not, in the future, properly approach those premises and engage in conduct in accordance with the FW Act, properly exercising their rights. 11 In my view, having regard to the respective balance of convenience factors to which I have been referred, it is nevertheless appropriate to make some form of order, namely an order which requires the respondents to act lawfully and which simply reinforces their existing legal obligations with the consequences of failing to comply with a Court order. 12 There is no reason to think that those persons in the future will not engage in such activity as they are entitled to do in relation to Hansen Yuncken projects lawfully, so that in terms of adding the consequence of failing to comply with a Court order, there is no real factor of inconvenience against them. On the other hand, the conduct, albeit engaged in a relatively short period of time, was, on the material before me, apparently forceful, and warrants the making of some order. 13 I propose to make the following order, which extends to the Union in a limited aspect, but not to all of its officers. 14 The order which I propose to make is that until further order, each of the first respondent, the second respondent, the third respondent, the fourth respondent, and the fifth respondent, and any other organiser (and I have used the word "organiser' deliberately), of the sixth respondent, employed in its Construction and General Division, South Australian Divisional Branch, be restrained from attending the Hansen Yuncken project at 50 Flinders Street, Adelaide, or the project for the construction of the new Royal Adelaide Hospital in which Hanson Yuncken is engaged, unless they are lawfully exercising or seeking to exercise rights in accordance with part 3-4 of the FW Act. 15 Those orders are expressed to be until further order. I note that a program for the further progress of this matter has been fixed, and the matter is to come back for further directions on 5 May 2014. The liberty to apply, which I gave generally when making directions, extends to applying to vary or discharge the injunctive order which I have made. In any event, I will at that time, if it raised, consider whether that order needs to be continued or should be continued or varied. I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield. Associate: Dated: 31 March 2014