AMMA employee relations consultant Cara Spence examines a difficult decision of whether to invoke the ‘slip rule’ to correct an error made in Abigroup’s contempt of court order against union activist Bob Carnegie. The question for Judge Burnett was “can he fix it?” Read on to find out.

“The workers, united, shall never be defeated”… so chanted the hundreds who gathered inside and outside the Harry Gibbs Commonwealth Law Courts Building in Brisbane on the morning of Friday 16 August 2013 in support of Robert ‘Bob’ Carnegie.

Activists from the Bob Carnegie Defence Campaign and unionists from the Builders Labourers Federation (BLF), United Voice, the Construction Forestry, Mining and Energy Union (CFMEU) and the Maritime Union of Australia (MUA) were in attendance.

Some were wearing t-shirts in support of the cause, proudly displaying children’s cartoon character ‘Bob the Builder’ behind bars, with the modified catch phrase “can they jail him?”

Mr Carnegie faced numerous counts of contempt relating to a nine-week long strike that took place during the construction of the Queensland Children’s Hospital (QCH) in the second half of 2012 against Abigroup Contractors Pty Ltd a subsidiary of Lend Lease.

Carnegie’s original 54 alleged contempt charges were later reduced, with Abigroup alleging the activist wilfully contravened the Court’s orders and was in contempt of them on 18 occasions by either attending within 100 metres of the QCH Project, organising or procuring others to attend within 100 metres of the site, using verbally abusive language and or threatening a person in the vicinity of the site.

In its evidence, Abigroup tendered electronic interviews posted on CFMEU’s social networking page, in which Carnegie clearly displayed a disregard for sections of the Fair Work Act 2009 (Cth) and related injunctions.

At one point, Carnegie states, “I decided to defy those injunctions because I believe that although I to a degree, believe in… a civil society and the rule of law, but then when the laws are unjust and laws are unfair, I believe that you have a moral duty to defy them and so in this case, I believe my moral duty was much higher than… some legalism than hadn’t even been explained to me… I was there as a community organiser and unless I had been, the only way that I would have gone back to the protest line is if I had been gaoled.”

Accordingly, Judge Burnett found that Carnegie understood the need to comply with court orders, but showed a flagrant and contumelious disregard for the original order and a ‘positive intention to ignore the order and defy the Court’.

Two key preliminary points were raised in the Carnegie’s defence:

  1. The order failed to incorporate the FCCR r29.07 endorsement (penal endorsement); and
  2. The order was defective for lack of clarity or was ambiguous.

Carnegie’s second defence point was critical to the outcome of this case. He argued that the order lacked clarity in respect of its geographic definition, that the meaning and intent of the order were dependent upon a non-existent document (the ‘Further Amended Application filed on 5 September 2013’ rather than the ‘Further Further Amended Application filed on 5 September 2013’), and that the language of the order was imprecise and lacked meaning.

In his judgement, Judge Burnett explained that the issue at hand was whether he could exercise the power to dispense with the rules in the interests of justice to correct a formal defect or irregularity in the order.

While he could have invoked the ‘slip rule’ – a rule by which a Court can reopen a published order to correct an accidental error or omission – Judge Burnett found that there was no instance of ambiguity, and that the order was plain in its expression, but simply incorrect.

With respect to Abigroup’s error in its order against “Bob the Builder”, as it turned out, Judge Burnett just couldn’t fix it.

Implications for employers

What is the moral of this story for employers? Always cross your T’s and dot your I’s, especially when it comes to an application for a Federal Circuit Court Order involving a community convenor, a construction company and a courtroom full of a comrade’s closest companions.

Had Abigroup, by its solicitor, promptly noted the omission, corrected it and reserved the order, the subsequent difficulties would have been avoided and the outcome of this case, significantly different.

For more information on this case study, contact AMMA employee relations consultant Cara Spence via [email protected] or (07) 3210 0313.

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