Australian Building & Construction Commissioner v Construction, Forestry, Mining & Energy Union [2009] FCA 1587

Australian Building & Construction Commissioner v Construction, Forestry, Mining & Energy Union [2009] FCA 1587

The Court was not constrained by the respondents' construction of the originating application and had wide discretionary power to fashion appropriate interlocutory relief. On the earlier prima facie findings, the respondents' industrial action was not based on reasonable safety concerns and was directed at Diploma itself rather than matters peculiar to the Hay Street site. Accordingly, relief extending to building work performed for Diploma throughout Western Australia was the minimum relief necessary and appropriate to do justice between the parties. The ABCC could not be required to give an undertaking as to damages, and the order should include the relevant statutory exceptions so that...

Jurisdiction
Australia
Judgment Date
23 December 2009
Procedural Posture
Industrial Law Proceeding Concerning Alleged Breaches of S 38 of the Building and Construction Industry Improvement Act 2005 (cth) and Interlocutory Injunctive Relief / Determination of the Form and Scope of Interlocutory Orders After the Court Had Concluded Interlocutory Relief Ought Be Granted
Outcome
Interlocutory injunction granted extending to building work performed for Diploma throughout Western Australia; costs reserved.
Legal Topics
['unlawful Industrial Action' 'scope of Interlocutory Injunction' 'building and Construction Industry Improvement Act 2005 (cth) S 49' 'minimum Relief Necessary to Do Justice' 'undertaking as to Damages']
['industrial Law' 'building and Construction Industry Regulation' 'interlocutory Injunctions'] ['unlawful Industrial Action' 'scope of Interlocutory Injunction' 'building and Construction Industry Improvement Act 2005 (cth) S 49' 'minimum Relief Necessary to Do Justice' 'undertaking as to Damages']

Case Brief

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Procedural Posture

Industrial Law Proceeding Concerning Alleged Breaches of S 38 of the Building and Construction Industry Improvement Act 2005 (cth) and Interlocutory Injunctive Relief / Determination of the Form and Scope of Interlocutory Orders After the Court Had Concluded Interlocutory Relief Ought Be Granted

Legal Issues

  1. 1 ['Whether interlocutory injunctive relief should be confined to the Diploma construction site at 915 Hay Street, Perth or extend to building work performed for Diploma throughout Western Australia' 'Whether the originating application constrained the Court from granting broader interlocutory injunctive relief' 'Whether the ABCC was required to give an undertaking as to damages' 'Whether the order should include statutory exceptions to the definition of building industrial action']

Ratio Decidendi

The Court was not constrained by the respondents' construction of the originating application and had wide discretionary power to fashion appropriate interlocutory relief. On the earlier prima facie findings, the respondents' industrial action was not based on reasonable safety concerns and was directed at Diploma itself rather than matters peculiar to the Hay Street site. Accordingly, relief extending to building work performed for Diploma throughout Western Australia was the minimum relief necessary and appropriate to do justice between the parties. The ABCC could not be required to give an undertaking as to damages, and the order should include the relevant statutory exceptions so that...

Court Disposition

Interlocutory injunction granted extending to building work performed for Diploma throughout Western Australia; costs reserved.

Orders

  • ['Until further determination of the application or until further order, each respondent, whether by their officers, delegates, agents, employees or other representatives, is restrained from being engaged in or involved in any contractor and their employees or employee required to perform building work for Diploma...