Construction, Forestry, Mining and Energy Union v Laing O'Rourke Australia Pty Ltd [2013] FCA 246

Construction, Forestry, Mining and Energy Union v Laing O'Rourke Australia Pty Ltd [2013] FCA 246

Leave to appeal should be granted on the narrow ground that the interlocutory injunctive orders of 25 February 2013 may have improperly restricted the union applicants' rights to consultation with subcontractors under relevant enterprise agreements. There is sufficient doubt regarding whether the orders failed to consider existing or prospective obligations for consultation arising under the industrial agreements, and substantial injustice may result if leave is refused and a stay not granted, particularly as works may be completed and consultation rendered nugatory before appeal is heard.

Parties
First Applicant: Construction, Forestry, Mining and Energy Union; Second Applicant: Australian Building Construction Employees and Builders' Labourers' Federation (Queensland Branch) Union of Employees (as a transitionally registered organisation); Third Applicant: Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (as a transitionally registered organisation); Fourth Applicant: Michael Ravbar; Fifth Applicant: Andrew Sutherland; Sixth Applicant: Kevin Griffin; Seventh Applicant: Scott Vink; Eighth Applicant: Tim Jarvis; Ninth Applicant: Mark Bateman; First Respondent: Laing O'Rourke Australia Pty Ltd ACN 111 023 431; Second Respondent: Laing O'Rourke Australia Construction Pty Ltd ACN 112 099 000; Third Respondent: Explore Investment Australia Pty Ltd ACN 112 098 405; Fourth Respondent: 825 Ann Street Pty Ltd ACN 132 841 242; Fifth Respondent: 100 McLachlan Street Pty Ltd ACN 137 358 475
Jurisdiction
Australia
Judgment Date
12 March 2013
Procedural Posture
Application for Leave to Appeal / Leave to Appeal Against Interlocutory Injunctive Orders
Outcome
Leave to appeal granted in part; stay granted in part; application otherwise dismissed
Legal Topics
Interlocutory Injunctions, Consultation Clauses in Enterprise Agreements, Fair Work Act Applications, Appeals – Leave to Appeal, Stay of Orders
Employment and Industrial Law Practice and Procedure Interlocutory Injunctions Consultation Clauses in Enterprise Agreements Fair Work Act Applications Appeals – Leave to Appeal Stay of Orders

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Parties

Construction, Forestry, Mining and Energy Union

First Applicant

Australian Building Construction Employees and Builders' Labourers' Federation (Queensland Branch) Union of Employees (as a transitionally registered organisation)

Second Applicant

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (as a transitionally registered organisation)

Third Applicant

Michael Ravbar

Fourth Applicant

Andrew Sutherland

Fifth Applicant

Kevin Griffin

Sixth Applicant

Scott Vink

Seventh Applicant

Tim Jarvis

Eighth Applicant

Mark Bateman

Ninth Applicant

Laing O'Rourke Australia Pty Ltd ACN 111 023 431

First Respondent

Laing O'Rourke Australia Construction Pty Ltd ACN 112 099 000

Second Respondent

Explore Investment Australia Pty Ltd ACN 112 098 405

Third Respondent

825 Ann Street Pty Ltd ACN 132 841 242

Fourth Respondent

100 McLachlan Street Pty Ltd ACN 137 358 475

Fifth Respondent

Procedural Posture

Application for Leave to Appeal / Leave to Appeal Against Interlocutory Injunctive Orders

Legal Issues

  1. 1 Whether interlocutory injunctive relief improperly restricted the unions' rights to consultation under enterprise agreements
  2. 2 Whether there is sufficient doubt about the correctness of the orders to warrant leave to appeal
  3. 3 Whether stay of the injunctive orders should be granted to preserve the efficacy of any appeal

Ratio Decidendi

Leave to appeal should be granted on the narrow ground that the interlocutory injunctive orders of 25 February 2013 may have improperly restricted the union applicants' rights to consultation with subcontractors under relevant enterprise agreements. There is sufficient doubt regarding whether the orders failed to consider existing or prospective obligations for consultation arising under the industrial agreements, and substantial injustice may result if leave is refused and a stay not granted, particularly as works may be completed and consultation rendered nugatory before appeal is heard.

Court Disposition

Leave to appeal granted in part; stay granted in part; application otherwise dismissed

Orders

  • Leave to appeal is granted to the first, second, fourth, fifth, sixth, seventh, and eighth applicants against the orders made of 25 February 2013 as they prohibit those applicants from dealing with notifications by and undertaking consultations with subcontractors bound by enterprise agreements requiring such...
  • The application for leave to appeal by the third and ninth applicants is dismissed.