Case: Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth)
Outcome: considered
were made that each proceeding be listed for further hearing to determine whether the final form of relief might be influenced by the commencement on 1 July 2009 of the Fair Work Act 2009 (Cth), the Fair Work (Registered Organisations) Act 2009 (Cth) and the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth); the dissolution of the interlocutory injunction made in the John Holland proceeding pending the trial of the action or further order; whether any order for costs ought to be made in either proceeding; and the steps that needed to be taken to determine the question of whether the Court should exercise its discretion to impose a pecuniary penalty on the CFMEU, the AMWU and the CEPU (which I will describe collectively as the respondents) in respect of the contraventions of ss 767(1) and 768(1) of the Act and if so in what amount and by reference to what considerations; and whether any penalty imposed on any of those respondents should be paid to John Holland or paid into the Consolidated Revenue Fund of the Commonwealth. By operation of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth), the repealed Workplace Relations Act 1996 (Cth) continues to apply to conduct that occurred prior to the repeal of the Act. John Holland and the CFMEU, the AMWU and the CEPU have agreed that declarations in the following terms ought to be made in QUD63 of 2009: An order declaring that the John Holland Pty Ltd Abbots Point Coal Terminal Expansion Workplace Agreement 2008 (the "Expansion Agreement") applies to work performed by employees of John Holland Pty Ltd at the Abbot Point Coal Terminal owned by the Ports Corporation of Queensland ("PCQ") in connection with PCQ's project to expand the throughput capacity of the Terminal to 50 million tonnes per annum (the "X50 Expansion"); An order declaring that the Expansion Agreement covers exhaustively all work to be performed by employees of John Holland Pty Ltd at PCQ's Abbot Point site in connection with PCQ's "X50 Expansion" project under contract Q08-004 between PCQ and John Holland Pty Ltd to the exclusion of any work which might be performed by members of the first, second and third respondents; An order declaring that the Bargaining Period Notices issued by the first, second and third respondents respectively on or about 20 November 2008 in relation to the operations of John Holland Pty Ltd at the Terminal pursuant to PCQ's "X50 Expansion" project are invalid and of no effect. Those parties also agree that there is no utility in granting a declaration in terms of paragraph 5 of the Further Amended Application filed by John Holland on 28 April 2009, which is framed in terms of conduct related to the repealed s 760 of the Act. Similarly, those parties agree that no order for a final injunction ought to be made and the interlocutory injunction ought to be dissolved. The parties propose to submit short minutes of an order to the Court for the dissolution of the interlocutory injunction. Declarations will be made under s 23 of the Federal Court of Australia Act 1976 and s 847 of the Act in the above terms.