CBI Construction Pty Ltd (CBI) sought an interlocutory injunction under ss.39 and 49 of the Building and Construction Industry Improvement Act 2005 (BCII Act) and ss.494(5) and 496(12) of the Workplace Relations Act 1996 (WR Act) against 209 CBI employees engaged to perform building work on the North West Shelf LNG Phase V Expansion Project. CBI also sought orders imposing pecuniary penalties on the respondents under s.49 of the BCII Act, and s.719 of the WR Act, for breaching an Order of the Australian Industrial Relations Commission made on 14 October 2008 and for breaches of collective agreements.
CBI alleged that on 13 October 2008, a union meeting took place where CBI’s employees discussed with officials of the AMWU and CFMEU that they wanted their employment terminated on the grounds of redundancy and to be immediately re-engaged on the basis that the Phase V Project had been completed. CBI’s position was that additional works awarded to them by Woodside Energy Limited for the construction of Stabiliser 6 and a Vapour Return Line formed part of the Phase V project.
CBI alleged that on 14 October 2008 employees rostered to work that day failed to attend work. CBI applied for and were granted orders under s.496 of the WR Act that each of the named employees not engage in industrial action and that the CFMEU, the AMWU, Brad Upton, Robert Brown and Mark Johnston (Union Organisers) immediately stop organising and not organise or engage in further industrial action. The order came into effect at 4pm on 14 October 2008 for a period of one month.
On 15 and 16 October 2008 the respondents performed work as normal. On 17, 18, 20, 21, 22, 23, 24 and 25 October 2008, the respondents failed to attend for work without authorisation.
At the proceedings in the Federal Court in Perth on the 28 October 2008, Gilmour J made interlocutory orders restraining certain respondents (being respondents identified by the applicant as having been served) from failing to attend for work and/or failing to perform work in the manner as customarily performed for the Applicant until the application is finally determined. In written reasons, Gilmour J said that the applicant had a strong prima facie case. His Honour noted that the effect on the applicant if there was further industrial action would be significant and that the respondents had returned to work at the time of making the interlocutory orders was not a reason to refrain from granting the injunction sought Gilmour J also said that the respondents had shown a preparedness to engage in industrial action in contravention of the AIRC order.
On 9 February 2009 the company had a hearing for that day vacated and its notice of motion was adjourned. It subsequently sought to have its application discontinued. In light of CBI’s move to not pursue its application, the ABCC filed a notice of motion with the Court seeking to be made a second applicant. Following a hearing on 24 September 2009 Justice Gilmour granted the ABCC’s application.