INDUSTRIAL ACTION – order against industrial action – s.418 Fair Work Act 2009 – Lend Lease made application alleging industrial action by CFMEU that resulted in the stoppage of work by six employees covered by the Lend Lease Project Management & Construction (Australia) P/L/CFMEU Joint Development Agreement Mark 8 2012-16 – further allegation of unlawful stoppage of work by 88 employees of various contractors – alleged industrial action commenced on 11 April 2016 at or around 6.30am, with a return to site at approximately 8.10am – direction made to remove three CFMEU flags hung from cranes on site – at manager’s meeting it was explained the workforce would be ‘out until the flags are reinstated’ – Lend Lease manager informed that site remained open and workforce were expected to remain at work – Commission held industrial action that is not, or would not, be protected industrial action occurred at the site during operational hours on 11 April 2016 – while at time of hearing industrial action not ‘happening’ as required by s.418(1)(a) of FW Act, such action was ‘threatened, impending or probable’ – CFMEU contended it was more probable than not that employees would return to work on 12 April 2016 – this contention not accepted and the issue of Lend Lease allowing or not allowing the flags considered an unresolved issue – authority did not support broad propositions made by CFMEU regarding freedom of association arguments – no evidence that written notice of an intention to hold a meeting at commencement of work issued – as employers did not grant authorisation to attend and required employees to perform their duties, the employee’s attendance would constitute unprotected industrial action – Commission not satisfied CFMEU was ‘organising’ industrial action in circumstances required for an order to be made against them under s.418(1)(c) were met – Lend Lease consequently sought orders against their employees and subcontractor employees – as Commission satisfied industrial action that would not be protected was threatened, impending or probable, order made and issued on 11 April 2016 [PR578979] – order in place until 29 April 2016, with period of nearly three weeks considered suitable for parties to advance discussions and attempt to resolve any dispute. Lend Lease Building P/L v Construction, Forestry, Mining and Energy Union
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