FEDERAL COURT OF AUSTRALIA Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (No 2) [2017] FCA 565 File number: QUD 755 of 2016 Judge: COLLIER J Date of judgment: 23 May 2017 Catchwords: PRACTICE AND PROCEDURE – application to vacate interlocutory injunction – relevant principles – evidence supporting application – resolution of underlying dispute – balance of convenience Legislation: Fair Work Act 2009 (Cth) s 417 Federal Court Rules 2011 (Cth) rr 39.04, 39.05 Cases cited: Construction, Forestry, Mining and Energy Union v Director, Fair Work Building Industry Inspectorate [2016] FCA 1305 De L v Director-General, NSW Department of Community Services (No 2) (1997) 190 CLR 207 Director, Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2016] FCA 1225 Lend Lease Project Management & Construction (Australia) Pty Ltd v Construction, Forestry, Mining and Energy Union (No 2) [2011] FCA 403; (2011) 206 IR 320 Patel v Minister for Immigration and Citizenship (No 4) [2012] FCA 1170; (2012) 208 FCR 128 United Motor Search Pty Ltd v Hanson Construction Materials Pty Ltd (No 2) [2014] FCA 277 Western Suburbs Electrical Supplies Pty Limited v Russell Electrical Services Pty Ltd (1994) 52 FCR 194 Date of hearing: 22 May 2017 Registry: Queensland Division: Fair Work Division National Practice Area: Employment & Industrial Relations Category: Catchwords Number of paragraphs: 11 Counsel for the Applicant: Mr J Bourke QC with Ms R Sweet Solicitor for the Applicant: Clayton Utz Counsel for the First, Second, Third, Fourth, Fifth, Sixth, Seventh and Eighth Respondents: Mr WL Friend QC with Mr CA Massy Solicitor for the First, Second, Third, Fourth, Fifth, Sixth, Seventh and Eighth Respondents: Hall Payne Lawyers ORDERS QUD 755 of 2016 BETWEEN: AUSTRALIAN BUILDING AND CONSTRUCTION COMMISSIONER Applicant AND: CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION First Respondent MATTHEW PARFITT Second Respondent JUSTIN STEELE (and others named in the Schedule) Third Respondent JUDGE: COLLIER J DATE OF ORDER: 22 MAY 2017 THE COURT ORDERS THAT: Orders 1, 2 and 3 of the orders made 14 October 2016 be vacated. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT COLLIER J: 1 Before the Court is an interlocutory application by the first respondent in the substantive proceedings (CFMEU) to vacate three restraining orders made by me on 14 October 2016. Those orders were as follows: 1. Until the hearing and final determination of the proceeding or further order, the first respondent (whether by its officers, delegates, employees or agents, or howsoever otherwise) and the second to eighth respondents be restrained from organising, encouraging, directing, counselling, procuring, aiding or assisting in any stoppage, cessation, disruption or interference of paid work at any building site occupied and/or in the control or responsibility (in whole or in part) of J Hutchinson Pty Ltd T/A Hutchinson Builders (Hutchinson sites). 2. Without limiting the effect of paragraph 1 of this order, until the hearing and final determination of the proceeding or further order, the first respondent (whether by its officers, delegates, employees or agents, or howsoever otherwise) and the second to eighth respondents be restrained from: (a) convening, organising or conducting more than one meeting of workers at the same Hutchinson site within any 7 day period; and (b) convening, organising or conducting the meeting referred to in (a) without first giving 48 hours written notice to J Hutchinson Pty Ltd T/A Hutchinson Builders and any employer of any workers that are anticipated to attend the meeting, such notice to include a brief statement of the purpose of the meeting and the precise time, date, location and expected duration of the meeting. 3. For the avoidance of doubt, paragraphs 1 and 2 of this order do not apply to: (a) any bona fide exercise of a right under any State or Territory OHS law as that expression is defined in s 494(3) of the Fair Work Act 2009 (Cth) (FW Act) and r 3.25 of the Fair Work Regulations 2009 (Cth) where such right is exercised by a person holding an entry permit issued pursuant to s 512 of the FW Act; or (b) any bona fide advice provided to a person working on a Hutchinson site as to that person's rights in respect of any occupational health and safety issue, including any advice as to when it may be appropriate for a person to cease working because of a reasonable concern of an imminent risk to the person's health or safety. 2 These orders (Orders 1, 2 and 3) related to events on sites operated by J Hutchinson Pty Ltd (Hutchinson) and described in Director, Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2016] FCA 1225, in particular disruptive stop work meetings at those sites organised by the CFMEU. 3 Matters between the CFMEU and Hutchinson, and the CFMEU and the applicant in these proceedings (Commissioner) in relation to relevant events have substantially resolved. In an affidavit of 18 May 2017 Mr Stedman, solicitor for the CFMEU, gave evidence that by deed dated 23 February 2017 between Hutchinson and the CFMEU, litigation between those parties had settled. That the current proceedings between the Commissioner and the CFMEU have substantially resolved is evident by the proposed joint declarations filed by the parties on 17 May 2017. Those joint declarations recognise admission of liability by the CFMEU and individual respondents to the majority of the claims of the Commissioner. Declarations were made by me in those terms on 22 May 2017. 4 The only matters outstanding between the Commissioner and the CFMEU in these proceedings are: in respect of liability of the respondents including the CFMEU: whether the holding of two-hour meetings by the CFMEU constituted breach of s 417 of the Fair Work Act 2009 (Cth) (FW Act) (the reserved issue). The Commissioner and the CFMEU were unable to reconcile their positions in respect of this issue in the joint declarations filed by them; and appropriate penalties to be imposed on the respondents under the FW Act in respect of all breaches of the legislation (the penalties issue). 5 At the hearing on 22 May 2017 the parties made submissions on the reserved issue and the penalties issue. Judgment on those issues has been reserved. Relevantly for the purposes of this judgment however, at that hearing the CFMEU sought orders that Orders 1, 2 and 3 of 14 October 2016 be vacated. The CFMEU sought these orders on the basis that: the underlying dispute between the CFMEU and Hutchinson had been resolved; the relevant industrial action was no longer occurring; and the balance of convenience no longer favoured the grant of injunctive relief. 6 The Commissioner opposed orders vacating Orders 1, 2 and 3, on the basis that: the reserved issue had not been finally determined; the respondents were refused leave to appeal my orders of 14 October 2016; the evidentiary basis for the CFMEU's application was weak; and the Court cannot be satisfied that the injunction no longer has utility. 7 After hearing the parties I made the following orders: 1. Orders 1, 2 and 3 of the orders made 14 October 2016 be vacated. 8 At the time I indicated that I would separately publish my reasons for this order. I now do so. 9 As I observed in United Motor Search Pty Ltd v Hanson Construction Materials Pty Ltd (No 2) [2014] FCA 277 at [51] and [53]: The Court has clear authority to vacate an interlocutory order, irrespective whether that order has been entered. That this is so is clear from the terms of r 39.04 and r 39.05 of the Federal Court Rules 2011 (Cth): Western Suburbs Electrical Supplies Pty Limited v Russell Electrical Services Pty Ltd (1994) 52 FCR 194 at [22]-[23]; Patel v Minister for Immigration and Citizenship (No 4) [2012] FCA 1170; (2012) 208 FCR 128 at [31]; Lend Lease Project Management & Construction (Australia) Pty Ltd v Construction, Forestry, Mining and Energy Union (No 2) [2011] FCA 403; (2011) 206 IR 320; and As was explained by the High Court in De L v Director-General, NSW Department of Community Services (No 2) (1997) 190 CLR 207 at 215, the Court has power to reopen its orders in circumstances where there is some matter calling for review or where "the interests of justice so require". 10 In the case before me: It is uncontroversial that the underlying dispute between the CFMEU and Hutchinson has been resolved by deed of settlement. The dispute between the CFMEU and the Commissioner has been substantially resolved and, as is clear from the joint declarations, substantially in favour of the Commissioner. The CFMEU's evidence before the Court in support of vacation of Orders 1, 2 and 3 is not strong, being primarily Recitals I and K to the deed of settlement between the CFMEU and Hutchinson annexed to Mr Stedman's affidavit. In those Recitals the CFMEU and Hutchinson recognised the previous dispute between them and its resolution, and their desire to restore normality to their working relationship. It is somewhat surprising that the CFMEU did not produce more concrete evidence in support of its application for vacation of Orders 1, 2 and 3. However, such evidence as is before the Court indicates that not only has the underlying dispute between the CFMEU and Hutchinson resolved, but also that the industrial action against which Orders 1, 2 and 3 sought to guard has ceased. The criticism of Mr Bourke QC for the Commissioner of the weakness of the affidavit of Mr Stedman should be balanced against the fact that Hutchinson consented to the reliance by the CFMEU on the deed of settlement in the current circumstances. To that extent it is reasonable for me to assume that the Recitals to the deed of settlement reflect the reality of the situation between the CFMEU and Hutchinson. The Commissioner relies on the May 2017 statement of Mr Greg Quinn, Managing Director of Hutchinson, annexed to the affidavit of Ms Jessica Tinsley sworn 19 May 2017, in which Mr Quinn states that "On the industrial relations front, things have settled down quite significantly over the past few months". In my view however this statement does little more than support the CFMEU's claim that the industrial disputes of 2016 involving the CFMEU and Hutchinson have ceased. This, in fact, bolsters the case for vacation of Orders 1, 2 and 3. I am not able to identify the manner in which the balance of convenience favours the continuation of the restraints on the CFMEU as set out in Orders 1, 2 and 3. Clearly, the restraints prejudice the CFMEU. While the Commissioner submitted that the continuation of Orders 1, 2 and 3 are the reasons why "things have settled down" between the CFMEU and Hutchinson, this is speculation. I note the submission of the CFMEU that the continuation of the restraints has a deleterious effect on the restoration of the working relationship between Hutchinson and the CFMEU, as indicated in Recital K of the deed of settlement between those parties. I also note that Orders 1, 2 and 3 affect the rights of Hutchinson workers who are CFMEU members on Hutchinson sites, which workers are not parties to the current proceedings. Mr Bourke QC for the Commissioner submitted that the injunction in Orders 1, 2 and 3 should remain in place until I have delivered judgment in respect of the reserved issue and penalties, however I see no utility in such an approach. The restraints were ordered on an interlocutory basis only, and were susceptible to vacation by the Court at any time. Although the reserved issue remains for decision, it is not apparent to me that the outcome of this aspect of the case will practically alter the position of the parties as currently stands following resolution of other matters between them. Continuation of injunctive restraints against the CFMEU in light of these developments would, in my view, be unfair to the CFMEU. The fact that leave to appeal against Orders 1, 2 and 3 was refused (Construction, Forestry, Mining and Energy Union v Director, Fair Work Building Industry Inspectorate [2016] FCA 1305) is, in the circumstances, irrelevant. Matters have clearly advanced significantly since Orders 1, 2 and 3 were made by me, and since Rangiah J delivered his decision. 11 In these circumstances the proper orders are those I have made, namely that Orders 1, 2 and 3 be vacated. I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier. Associate: Dated: 23 May 2017 SCHEDULE OF PARTIES QUD 755 of 2016 Respondents Fourth Respondent: KURT PAULS Fifth Respondent: EDWARD BLAND Sixth Respondent: ANTONIO FLORO Seventh Respondent: ANTHONY STOTT Eighth Respondent: MICHAEL DAVIS