A recent Fair Work Commission (FWC) Full Bench decision has examined the FWC’s obligations to the parties in hearings relating to applications to stop or prevent industrial action and the type of orders it may make.

Implications for employers

This decision makes it clear that:

  • given the need for expedition, the parties in such a hearing need only be given a reasonable opportunity to present their case; and
  • the FWC can make orders against both employees who are union members and those who are eligible to be members.

Background: legislation

Under the Fair Work Act 2009 (Cth) (FW Act), a party may apply to the FWC for orders that industrial action cease, or that planned industrial action not occur.

Where the industrial action is not protected action (that is, it is not action taking place during enterprise bargaining and which has been authorised by a secret ballot), FWC must respond to such action by making an order that the industrial action stop, not occur or not be organised (section 418).

Background: facts

Abigroup Contractors Pty Ltd (Abigroup) was engaged in constructing the Queensland Children’s Hospital (QCH Project) in Brisbane. The progress of the QCH Project was delayed as a result of industrial action taken by the Construction, Forestry, Mining and Energy Union (CFMEU), the Australian Building Construction Employees and Builders’ Labourers’ Federation (Qld Branch) (BLF) and CFMEU and BLF members who were employees of Abigroup’s subcontractors. Evidence indicated that members of the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union (CEPU) were also not attending work, although it was not clear which of them was taking industrial action, and which were not attending due to alleged health and safety concerns and/or genuine inability to enter the site due to picketing.

Between February and August 2012, Senior Deputy President Richards granted Abigroup three sets of orders requiring that the industrial action cease. Shortly before the last order was due to expire on 5 September 2012, Abigroup sought further orders. At that point, little or no work had been performed since 6 August 2012.

Decision at first instance

SDP Richards granted Abigroup’s application. In the course of the hearing, he granted two short adjournments requested by the unions, to allow them to consider late material put forward by Abigroup. However, he refused further adjournments. He stated that:

  • his decision was expedited given the long running nature of the industrial action. He also noted the problematic conduct on site which “fuel[s] the current tensions” and the $300,000 per day cost of the stoppage;
  • while he had not had time to review all material evidence comprehensively, the evidence before him suggested:
    • the CFMEU, the BLF and CFMEU members had continued to take unprotected industrial action after the last order to cease; and
    • the CEPU and at least some employees who were, or were eligible to be, CEPU members, were engaging in industrial action.

He ordered that the CFMEU, BLF and CFMEU members cease taking action. However, he acknowledged that he was unable to determine which of the employees who were, or were eligible to be, CEPU members were engaging in unprotected action, and which were not attending the site due to other concerns. Accordingly, the stop order was directed to employees:

  • who were, or were eligible to be, CEPU or CFMEU members;
  • who were employees of subcontractors to Abigroup; and
  • who were taking unprotected industrial action.

The CFMEU and CEPU appealed on the basis that SDP Richards had acted beyond jurisdiction to issue the orders, because he had:

  • refused the unions’ application for adjournment of the hearing;
  • incorrectly admitted prejudicial hearsay evidence;
  • incorrectly found that the unions and their members were engaging in industrial action; and
  • incorrectly defined the group of employees to be bound by the order to include those who were not union members.

Decision on appeal

The Full Bench of the FWC (comprised of Vice President Watson, Senior Deputy President Watson and Commissioner Gooley) affirmed SDP Richards’ decision, holding that:

  • matters such as this will “necessarily be conducted with expedition and the opportunity to present a case will be limited”;
  • SDP Richards had dealt with this matter on several previous occasions. He was therefore in the best position to assess the circumstances and determine the appropriate procedure. The parties were given an reasonable opportunity to conduct their case;
  • SDP Richards gave appropriate weight to the hearsay evidence in the circumstances;
  • the evidence supported a conclusion that the CFMEU and its members, and the CEPU and at least some of its members, were involved in the industrial action (and the unions were organising it). SDP Richards had validly concluded that he had the jurisdiction and obligation to make the orders sought;
  • the terms of the order granted against employees were sufficiently certain. The order made it clear that it applied only to those taking unprotected action; and
  • there was no evidence that there were any non-union member employees, so there was no difficulty with making an order affecting employees who were not union members.

This matter is ongoing, as an appeal has now been lodged with the Federal Court.