The matter concerned an application by The Gallagher Group WA Pty Ltd (Gallagher) for orders pursuant to s.418 of the Fair Work Act 2009 (FW Act) to stop industrial action at the Raine Square project in Perth, Western Australia.
Gallagher is the principal contractor for the Salta Group on the Raine Square project, a 21 storey office and retail complex above the William St rail station in the Perth CBD.
Gallagher has been in dispute with the CFMEU for some time over interpretation of certain provisions of the collective agreement it has with the union. The contended issues involve matters such as payment of site allowance and travel allowance on sick days or holidays. CFMEU officials have attended the site and there have been recent stoppages over a range of issues including alleged safety matters.
Gallagher made its application to Fair Work Australia (FWA) in the light of a mass walk out of employees on 27 August 2009 following a meeting addressed by the CFMEU Assistant Secretary Mr Joseph McDonald. Employees returned to work on Friday, 28 August 2009.
When the FWA hearing took place on Friday, 28 August 2009, Deputy President McCarthy said that he was unable to determine the application within the two days prescribed in the FW Act and that an interim order would not be granted as it would be contrary to the public interest. His Honour adjourned the proceedings until Monday, 31 August 2009.
At the conclusion of the hearing on Monday, 31 August 2009, DP McCarthy reserved his decision on whether an order would be issued or not. His Honour handed down his decision on 1 September 2009, in which he concluded that that whilst it appeared to him that there was a possibility of further industrial happening, it did not appear to him that there was a probability of industrial action, which is the test set by s.418 of the Fair Work Act 2009.