Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2009] FCA 997

Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2009] FCA 997

Although the evidence could support a finding that the CFMEU through Mr McDonald had engaged in unlawful industrial action on 20 and 21 August 2009, the intervening Fair Work Australia order requiring the Union and employees to stop and not engage in industrial action, together with the CFMEU's unequivocal evidence of intended compliance, meant the statutory circumstances for an interim injunction under s 39 were not made out at the strong end of the scale. The order was substantially to the same effect as the injunction sought, and compensation and pecuniary penalties remained available if the main application succeeded. The Court therefore refused the interim injunction.

Jurisdiction
Australia
Judgment Date
02 September 2009
Procedural Posture
Industrial Law Application for Interim Injunction Under S 39 of the Building Construction Industry Improvement Act 2005 (cth) / Notice of Motion for Interim Injunction
Outcome
Application for interlocutory injunction dismissed.
Legal Topics
['interim Injunction' 'unlawful Industrial Action' 'building Industry' 'fair Work Australia Order' 'statutory Injunction']
['industrial Law'] ['interim Injunction' 'unlawful Industrial Action' 'building Industry' 'fair Work Australia Order' 'statutory Injunction']

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Procedural Posture

Industrial Law Application for Interim Injunction Under S 39 of the Building Construction Industry Improvement Act 2005 (cth) / Notice of Motion for Interim Injunction

Legal Issues

  1. 1 ['Whether unlawful industrial action was occurring or was threatened, impending or probable within s 39(1) of the Building Construction Industry Improvement Act 2005 (Cth).' 'Whether the Court should grant an interim injunction under s 39(2) of the Building Construction Industry Improvement Act 2005 (Cth).' 'Whether the Fair Work Australia order requiring industrial action to stop affected the balance of convenience and utility of the interim injunction sought.']

Ratio Decidendi

Although the evidence could support a finding that the CFMEU through Mr McDonald had engaged in unlawful industrial action on 20 and 21 August 2009, the intervening Fair Work Australia order requiring the Union and employees to stop and not engage in industrial action, together with the CFMEU's unequivocal evidence of intended compliance, meant the statutory circumstances for an interim injunction under s 39 were not made out at the strong end of the scale. The order was substantially to the same effect as the injunction sought, and compensation and pecuniary penalties remained available if the main application succeeded. The Court therefore refused the interim injunction.

Court Disposition

Application for interlocutory injunction dismissed.

Orders

  • ['The application for an interlocutory injunction be dismissed.']