BGC Contracting Pty Ltd v The Construction Forestry Mining and Energy Union of Workers [2004] FCA 569

BGC Contracting Pty Ltd v The Construction Forestry Mining and Energy Union of Workers [2004] FCA 569

The applicants’ case raises serious questions to be tried as to whether right of entry provisions under the State Act are inconsistent with the Federal Act and the Constitution, with the evidence supporting a reasonably strong case for the applicants. Consideration of the balance of convenience, including potential prejudice to both sides, supports continuation of the interim orders to preserve the status quo until trial or further order.

Parties
First Applicant: BGC Contracting Pty Ltd; Second Applicant: Shamrock Holdings Pty Ltd; Third Applicant: SNC-Lavalin (SA) Inc; Respondent: The Construction Forestry Mining & Energy Union of Workers
Jurisdiction
Australia
Judgment Date
07 May 2004
Procedural Posture
Application for Interlocutory Injunctive Relief / Interlocutory Decision on Continuation of Interim Injunction Pending Final Hearing
Outcome
Interim injunctions continued until trial or further order; costs reserved
Legal Topics
Industrial Right of Entry, Inconsistency Between State and Federal Law, Australian Workplace Agreements (awas), Interlocutory Injunctions, Arbitral and Declaratory Jurisdiction of Industrial Commissions, Balance of Convenience
Employment Law Industrial Relations Constitutional Law Industrial Right of Entry Inconsistency Between State and Federal Law Australian Workplace Agreements (awas) Interlocutory Injunctions Arbitral and Declaratory Jurisdiction of Industrial Commissions +1 more

Case Brief

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Parties

BGC Contracting Pty Ltd

First Applicant

Shamrock Holdings Pty Ltd

Second Applicant

SNC-Lavalin (SA) Inc

Third Applicant

The Construction Forestry Mining & Energy Union of Workers

Respondent

Procedural Posture

Application for Interlocutory Injunctive Relief / Interlocutory Decision on Continuation of Interim Injunction Pending Final Hearing

Legal Issues

  1. 1 Whether right of entry provisions under the Industrial Relations Act 1979 (WA) are inconsistent with the Workplace Relations Act 1996 (Cth) and/or AWAs pursuant to s 109 of the Constitution
  2. 2 Whether interim injunctive relief should be maintained pending trial
  3. 3 The nature of the proceedings and declaration made by the Western Australian Industrial Relations Commission

Ratio Decidendi

The applicants’ case raises serious questions to be tried as to whether right of entry provisions under the State Act are inconsistent with the Federal Act and the Constitution, with the evidence supporting a reasonably strong case for the applicants. Consideration of the balance of convenience, including potential prejudice to both sides, supports continuation of the interim orders to preserve the status quo until trial or further order.

Court Disposition

Interim injunctions continued until trial or further order; costs reserved

Orders

  • The respondent, whether by its officers or authorised representatives, is restrained from exercising, or purporting to exercise, any right of entry to the Ammonia Plant Construction Project site at Burrup Peninsula for specified purposes until trial or further order.
  • The respondent, whether by its officers or authorised representatives, is restrained from taking any further steps in proceedings number CR13 of 2004 in the Western Australian Industrial Relations Commission in relation to costs or otherwise.