Office of the Australian Building and Construction Commissioner

Background:

In June 2009 Diploma Constructions (WA) Pty Ltd (Diploma) was constructing an office building at the Knoxville site at 915 Hay Street, Perth.

Mr Joe McDonald and Mr Michael Buchan, officers of the CFMEU, visited the site on 5 June 2009 and addressed employees of various contractors engaged at the site.

The ABCC alleges that Mr Buchan counselled the employees to stop work and leave the site for a three day period. Employees of nine contractors stopped work and did not return to work and did not return to work until 9 June 2009.

Mr McDonald attended the site on 24 June 2009 and addressed employees of contractors engaged in the street outside the site. Employees of four subcontractors engaged to perform work at the site failed to attend for work on 24 June 2009.

On 25 June 2009, Mr Buchan attended the site. Employees of five subcontractors engaged to perform work at the site failed to attend for work on 25 June 2009.

Interim injunctions granted on 2 July 2009 specified that, until further order were made, the respondents be restrained from:

• being engaged in or involved in any contractor (and their employees) or employee who is required to perform building work for Diploma:
  (i) failing or refusing to attend for building work or failing or refusing to perform any work after attending for building work; or
  (ii) placing a ban, limitation or restriction on the performance of building work adopted in connection with an industrial dispute
• attending or organising or procuring any person or persons to attend within 100 metres of any entrance to the Diploma construction site located at 915 Hay Street, Perth, Western Australia, save for such entry to the site as may be authorised by law, for the purpose of using a public road for reasons unconnected with the said site or for the purpose of complying with these orders.

A hearing took place between 17 and 21 July 2009 to determine whether the interim injunctions would be extended. They were extended pending the Court's decision.

On 29 September 2009 Gilmour J found interlocutory injunctive relief ought to be made against each of the respondents, but deferred making actual orders until submissions have been taken from the respondents and the applicant.

Gilmour J found that a prima facie case had been established that the CFMEU, by the actions of Mr Buchan and Mr McDonald, contravened s.38 of the BCII Act on 5, 6, 8 and 24 June 2009 but not on 25 June 2009.

On 23 December 2009 the Federal Court in Perth continued its earlier orders preventing the CFMEU, Mr McDonald and Mr Buchan from being involved in industrial action at any Diploma construction site.

On 23 December 2009, the Federal Court made an order restraining the CFMEU, Joseph McDonald and Michael Buchan from engaging in further unlawful industrial action at all Diploma building sites in WA and also that they were not to attend within 100 metres of the Diploma site at 915 Hay Street, Perth. The CFMEU sought leave to appeal against this decision and the application was heard before Justice Gilmour on 9 March 2010.

On 13 April 2010 Justice Gilmour dismissed the CFMEU application for leave to appeal and ordered that the applicants pay the costs of the ABCC in regards to that application.

In the judgment His Honour states that "There is no substantive right to engage in illegal conduct. Whilst the injunction protects the interests of Diploma it is in the nature of a statutory injunction in the public interest in proceedings brought by the ABCC in its statutory capacity in aid of the main object found in s 3(1) of the BCII Act, which is to provide an improved workplace relations framework for building work to ensure that building work is carried out fairly, efficiently and productively for the benefit of all building industry participants and for the benefit of the Australian economy as a whole."