(Published in Focus On: Victoria, Vol 3 Pt 4 (Dec 2012) of Workplace Review)
By Steven Moore, Barrister
In August-September 2012, Victoria was the epicentre of the industrial confrontation which occurred between the CFMEU and the Grocon companies. Although that confrontation was played out at a number of sites in Victoria and elsewhere, its dramatic focus was at a blockade established outside the Myer Emporium site in the Melbourne CBD.
The coming year will see the legal consequences of this conflagration played out in the Federal Court of Australia and the Supreme Court of Victoria. There are three sets of proceedings on foot. In the first, Cavanough J of the Supreme Court of Victoria has reserved judgment in a number of proceedings brought by Grocon and the Attorney-General of Victoria against the CFMEU for contempt of court arising from the alleged breach of various interlocutory orders made by the court requiring the cessation of the blockade.
The second action is also before the Supreme Court of Victoria and involves a claim by the Grocon companies against the CFMEU and a number of its officials for damages in excess of $10 million for losses said to have been caused by the industrial action.
The third proceeding is brought by the Director of the Fair Work Building Industry Inspectorate (FWBC) against the CFMEU and a number of its officials. The FWBC is seeking the imposition of civil penalties and compensation arising from breaches of ss 346, 348 and 355 of the Fair Work Act 2009 (Cth) (FW Act).
The centrepiece of those claims is that the CFMEU and its officials acted with intent to coerce the Grocon companies to agree to claims in relation to the nomination of shop stewards at various sites. In November 2012, the CFMEU applied to the Supreme Court of Victoria for a stay of the proceedings brought by Grocon in which it claims damages on the basis that the continuation of that proceeding concurrently with the proceeding in the Federal Court exposed it to a real risk of injustice. Cavanough J dismissed the application with costs.
With the dismissal of the CFMEU’s application for a stay of the proceedings in the Supreme Court of Victoria, that proceeding and the proceeding in the Federal Court will presumably proceed in the “ordinary” way. The CFMEU and the other defendants to those actions are required to file defences in both proceedings early in 2013.
The progression of both proceedings will likely raise some interesting legal and factual controversies. These may include the capacity of the Grocon companies to prove (in the Supreme Court) that they suffered loss as a result of the actions of the CFMEU and its officials and, perhaps more controversially, the quantum of that loss.
In the Federal Court of Australia, issues may arise as to the capacity of the FWBC to prove its claims against individual officials of the CFMEU in the event that those officials assert reliance on “penalty privilege”, thereby relieving themselves of the need to plead to the allegations in the normal way and removing any capacity to compel them to give evidence in the proceeding.
Beyond these specific issues, it will be of interest to watch the strategic dimensions of the cases, including whether Grocon remains firm in its commitment to seek recompense for its losses, or whether in the cold hard light of a competitive building industry, it seeks to negotiate a settlement with the CFMEU.
It will likewise be interesting to see whether the CFMEU and its officials continue to contest liability for contraventions of the FW Act. To date, both parties have not wavered from their public stance in pursuing (or resisting) their respective claims. It will be interesting to observe whether those positions remain unchanged as the litigation continues.
Citation: (2012) 3 WR 141