Ascot Cartage Contractors Pty Ltd & Anor v Transport Workers Union of Australia & Ors Red North Trucking Pty Ltd v Boyd, D. & Ors [1978] FCA 28

and SCOTT TRANSPORT INDUSTRIES PTY. LTD. Applicants AND TRANSPORT WORKERS' UNION OF AUSTRALIA, I. HODGSON, D. GROVE and D. ELLIOTT Respondents ORDER

JUDGE MAKING ORDER: SMITHERS J. DATE OF ORDER: 17 APRIL 1978 WHERE MADE: MELBOURNE

Scott Transport Industries Pty. Ltd. be added as an Applicant

The further hearing of this Application be adjourned

to the 8th day of May 1978 in Melbourne and that all parties have liberty to apply as to a change of venue of the said hearing on or before the 30th day of April

The Respondents appear before the Federal Court of

Monday the 8th day of May 1978 at 10.15 o'clock in the forenoon on the hearing of an application by the abovenamed Applicant Scott Transport Industries Pty. Ltd. for an injunction under Section 80 of the Trade Practices Act

1974 restraining the Respondents from engaging in the following conduct, namely engaging in conduct in concert with each other or with other persons that hinders or prevents any person in Australia acquiring the services of the sald Applicant as a carrier or which hinders or prevents the supply of goods by any third person anywhere in Australia to the said Applicant.

'The Applicants by their Counsel undertaking to pay any Respondent adversely affected by the interlocutory injunctions hereinafter set out, such compensation (if any) as the Court or a Judge thinks just, in such manner as the Court or a Judge directs, the Respondents and each of them other than the respondent D. Grove, are hereby reatrained and an injunction is granted hereby restraining them, whether by their servants, agents or otherwise, until the determination of the applications herein or further or other order from (a) engaging in conduct in concert with each other or other pergaons calculated to injure the business of the Applicant, Ascot Cartage Contractors Pty. Ltd., by hindering or preventing it from obtaining loads of petroleum products, for its business as carrier, from Mobil Australia Limited, B.P. Australia Ltd. Swell Company of Australia Ltd., Caltex (Australia)

Pty. Ltd. or any subsidiary or associated company thereof or by hindering or preventing any other person acquiring the services of the Applicant, Ascot Cartage Contractors Pty. Ltd.,

aiding, abetting, counselling, procuring, being concerned in, inducing or attempting to induce any person whatever, in concert with any other person, to engage in conduct in concert with other persons calculated to injure the business of the Applicant, Ascot Cartage Contractors Pty. Ltd., by hindering or preventing it from obtaining loads of petroleum products for its business as carrier from Mobil Australia Ltd., B.P. Australia Ltd., Shell Company of Australia Ltd., Caltex (Australia) Pty. Ltd. or any subsidiary or associated company thereof or by hindering or preventing any other person acquiring the services of the applicant, Ascot Cartage Contractors Pty. Ltd., as carrier in the Northern

engaging in conduct in concert with each other or with other persons that hinders or prevents Mobil Oil Australia Ltd., B.P. Australia Ltd., Shell Company of Australia Ltd., Caltex (Australia) Pty. Ltd., or any subsidiary or associated company thereof from acquiring the services of the Applicant Ascot Cartage Contractors Pty. Ltd., as carrier

by being concerned in the enforcement or implement- etion of any bens by employees of any one or more

employer of such employees acquiring the services of the Applicant, Ascot Cartage Contractors Pty.

engeging in conduct in concert with each other or with other persons calculated to injure the

Gusinergs of the Applicant, Scott Transport Industries Pry. Ltd., by hindering or preventing any person

in Australia acquiring the services of the said Applicant as a carrier or by hindering or preventing

the supply of goods by any third person anywhere in Australia to the said Applicant.

Liberty to apply be reserved to each party upon the

IN THE FEDERAL COURT OF AUSTRALIA GENERAL DIVISION NSW G No. 36 of 1978 ICT REGISTRY

IN THE MATTER OF THE TRADE PRACTICES ACT BETWEEN: RED NORTH TRUCKING PTY, LTD. Applicant AND: D. pert B. D.REAPPEY B. FORSSMAN, : 7 RA. DRIUSSI E} , = '

• i ' C} A A A Respondents ORDER JUDGE MAKING ORDER: SMITHERS J. DATE OF ORDER: 17 APRIL 1978 WHERE MADE: MELBOURNE

the further hearing of this Application be adjourned to the 8th day of May 1978 in Melbourne and that all parties have liberty to apply as to a change of venue of the said hearing on or before the 30th day of April 1978.

The Applicant by its Counsel undertaking to pay any Respondent adversely affected by the interlocutory injunctions hereinafter set out, such compensation (if any) as the Court or a Judge thinks just, in such manner as the Court or a Judge directs, the Respondents and each of them, other than the respondent D. Grove, are hereby restraineé and an injunction is granted hereby restraining them, whether by their servants, agents or otherwise, until the determination of the application herein or further or other order from - (a) engaging in conduct in concert with each other or other persons calculated to injure the business or the Applicant, Red North Trucking Pty. Ltd. by hindering or preventing it from obtaining loads of petroleum products, for its business as carrier,

from B.P. Australia Ltd., Shell Company of Australia Ltd., or any subsidiary or associated company thereof or by hindering or preventing any other person

(>) aiding, abetting, counselling, procuring, being concerned in, inducing or attempting to induce any person whatever, in concert with any other person, to engage in conduct in concert with other persons calculated to injure the business of the Applicant,

Red North Trucking Pty. Ltd. by hindering or preventing

B.P. Australia Ltd., Shell Company of Australia Ltd., or any subsidiary or assoc1ated Company

thereof or by hindering or preventing any other person acquiring the services of the Applicant, Red North Trucking Pty. Ltc., as carrier in the

engaging in conduct in concert with each other or with other-persons, that hinders or prevents B.P. Australia Ltd., Shell Company of Australia

thereof from acquiring the services of the Applicant Red North Trucking Company Pty. Ltd., as carrier

by being concerned in the enforcement or implementation of any bans by employees of any one or more of the

said companies the effect of which is, or which are intended, to hinder or prevent the employer of such employees acquiring the services of Red North Trucking Pty. Ltd.

Liberty to apply be reserved to each party upon the

VG No. 17 of 1978 ASCOT CARTAGE CONTRACTORS PTY. LTD.

to make clear is that these proceedings are still at an

be treated as though these proceedings are interlocutory in

nature, and I so treat them. That being so whether or not an interlocutory injunction is to be granted depends upon the

principles which were discussed in World Series Cricket

Pty. Limited v. Perish, (1977) 16 ALR 181 1n which Bowen,

CJ, speaking of the jurisdiction conferred on the Federal Court by s.80(2) of the Trade Practices Act, said:

"These words confer a judicial discretion of the widest kind upon the court. It is not an arbitrary discretion but one to be exercised judicially 1n accordance

in the Court of Chancery, but have been moulded to what is appropriate for different jurisdictions in which interlocutory relief may be obtained.

Whether or not the jurisdiction being exercised is equitable, it is inherent in the nature of an appli- eation for interlocutory relief that the evidence upon which the application must be determined will

be incomplete and unsatisfactory for the purpose of making a final finding.

In Beecham Group Ltd. v. Bristol Laboratores Pty. Ltd. (1968) 178 CLR 618; (1968) ALR 469, the Full Court of the High Court granted an interlocutory injunction to its statutory jurisdiction under s.31

of the Judiciary Act 1903, to make such orders in the cause before it as were just. The High Court was seized of the matter under the Patents Act 1952 ané was not exercising any inherent equitable purisdictien. Nevertheless, it invoked principles

weloped in equity to determine how it should exer- - cise ita statutory jurisdiction, though in some ways Geperting from those principles, where the special nature of the patent jurisdiction made it appropriate to do so. The High Court expressed the view that in all cases including patent cases, a Court when contemplating granting or refusing inter- locutory relief, must direct itself to both the prima facie strength of the plaintiff's claim and the palance of convenience. A plaintiff is required to wake out a prima facie case, 'in the sense that if the evidence remains as it 1s, there is a probability that at the trial of the action, the plaintiff will be held entitled to relief! (ibid at 822 and 470). Tne atre of the case which the plaintiff must make owt will md upon the nature of the right which he is seeking to assert, and the consequences which will flow from the making of the interlocutory order. However, where the facts are seriously in dispute, the

Court will not undertake a preliminary trial of the

rather, if the plaintiff has a fair chance of success

look to the balance of convenience." ((1977) 16 ALR

In these particular matters, first of all in matter VG 17af

1978, it seems clear that the respondent Hodgson and the respondent Elliott have engaged in conduct in concert with each other for the purpose and with the effect of causing loss and Gamage to the applicant Ascot in the course of its business. It is the business of that applicant to supply carrying services to the major oil companies in the Northern Territory and it has built up a goed and continuous business. It paysrates for @riving of certain vehicles under the Transport Workers! (Northern Territory) Award 1972 less than the rates paid by the oil companies pursuant to the Northern Territory (Oil Companies) Award 1975.

The immediate purpose of the conduct in which Mr. Hodgson amd Mr. Elliott have engaged in concert is to force the applicant Ascot to observe the same conditions for its

It 4s said for the respondents that the initiative comes from the employees of the oil companies and that the part played by the respondents is in effect merely that of

purposes. I am satisfied that wherever the initiative comes from, the respondents, Mr. Hodgson and Mr, Elliott, have acted in concert with each other, and indeed with the employees

to support and enforce the bans. Not only have they acquiesced therein, as is said for them, but they have been active in steps taken to enforce and implement those bans, and Mr. Hodgson's affidavit making it quite clear that the bans are operative and will be maintained implies that they are and will be supported

by the organisation and inevitably by its officers, including himself.

It would be quite unreal to regard what is happening as the unaided work of the employees. The bans have been extended, even nationwide, and that puts a complexion on the overt acts of Mr. Hodgson and Mr. Elliott that stamps them as participants

Thus, to all branches of the union, Mr. Hodgson has sent a telex alerting them as to the existence of the ban and has personally telephoned the office of Mobil 011 Australia Limited advising it that the Transport Workers! Union had benned loading and unloading of all the applicant's vehicles throughout Australia. and Mr. Elliott has made it clear to the Darwin installation manager of BP Australia Limited that should loading of any vehicles of the applicant other than owner-drivers occur, then BP Avatrelia Limited will have an industrial confront- ation with the TWU. Further, Mr. Elliott informed Mr. O'Neil a Director of Red North Trucking Pty. Ltd, the applicant in matter NSW G36 of 1978, that "black bans have been placed on your

company by the BF and Shell Transport Workers Union members

employed by those companies and the TWU and the bans will not be lifted till you agree to be respondents to the Northern Territory (041 Companies) Award." The accuracy of this statement

of events has not been challenged by the respondents.

The general probability of their accuracy is supported by the terms of the affidavit of Mr. Hodgson that the dominant purpose of*the conduct complained of by the applicant was and is substantially related to the wages and conditions of employment and to the continuity of that employment itself" of the employees of the major o1] Wuparies, and "of o11 company employees engaging in that conduct". I quote here the last paragraph of the affidavit.

In matter NSW G36 of 1978, the evidence shows that the respondents were 211 engaged in concert in applying the bans complained of. Before me the respondents justify the conduct on the sawe basis as is set forth in Mr. Hodgson's affidavit.

Drawing inferences from the evidence as one 1s required to do on an interlocutory application 1t appears that as alleged in NSW G36 of 1978, employees of major oil companies and Mr. Blijott, an officer of the TWU, and. as alleged in VG17 of 1978, Mr. Hodgson and Mr. Elliott, being officers of the TWU, have respectively engaged in conduct in concert for the purpose of causing loss and damage to the applicants' businesses, and that that conduct was of a kind likely to have the effect of causing such damage and has undoubtedly done so. It 1s said

on their behalf that the conduct in question is not to be taken to

contravene the provisions of sub-section (1) of s.45D of the

• Prete 2 1 nr i \engeee the dominant purpose for which

the conduct is engaged in is substantially related to the remuneration, conditions of employment, hours of work and working conditions of those employees. It 1s clear that the immediate purpose of the employees and officers 1s to exert pressure on the applicants to induce them to improve the pay and conditions of their drivers to the same level as those of the drivers of

I accept that this immediate purpose is but part of the general purpose of the employees in question, which is to create a situation in which it will be less attractive to the oil companies to use the services of the applicants and more attract~ ive for them to carry their products 1n their own vehicles driven by their own employees. The benefits said to be likely to flow to the oil company employees would be greater security in their employment, probably more overtime and employment in driving the larger road trains to which a higher rate of pay attaches rather than smaller vehicles. I call this the "oil employment objective" and I accept that this 011 employment objective might well be the dominant purpose of the 011 company employees, but it ia not apparent that this is the dominant purpose of the

For them the whole exercise might well constitute nothing more than action to implement a policy of achieving wage rises and Detter conditions for their members when and where- ever that prospect its realistic. Despite these observations I act for present purposes upon the view that this oil employment objective is the dominant purpose of the officers of the organis- ation aa wehi as of the employees. On that basis the question in

both matters is whether the purpose of achieving the oil employment objective is a purpose substantially related to the remuneration, conditions of employment, hours of work or working conditions

of the respondent employees within the meaning of section 45D (3)(a)(1), or the rewuneration, conditions of employment, hours

of work or working conditions of the employee, or any of the employees within the meaning of section 45D(3)(b)(i1i).

T am not pursuaded that it is and I do not think that it is. No doubt there is a sense in which action designed to achieve greater security of employment, more work in that employment and more of the classes of work in that employment which attract the higher rate of pay is related to hours of work and working conditions of the employees in question. It is, however, & very general sense and if applicable to section 45D it would intreduce a conception that in the context of the Trade Practices Act is somewhat incongruous, that conception Being that employees should be free to subject their employer to pressure, to force him to take action to injure the business of another trader with whom he has business relations whereby he would pertially or totally cease to use the services of the other trader and in consequence thereof would be more likely to

Such a conception would sit unconfortably in a statute, the generei objective of which is to foster fair competition and wich is designed to protect the business of individual traders from oppressive action of others who may have the commercial strength to act oppresively. It is a reasonable notion

Conaenent. with sodern industrial attitudes that within traditional

limitations, employees should be taking action for the protection conditions under which they work are offered and accept. But the be novel and out of harmony with

free of specific restrictions in and improvement of the

in the employment which they conception maintained above would

Im general the Trade Practices Act forbids an agreement

between two traders that neither particular trader.

tolerate persons in the employment of one trader acting in concert

to pressure their own employer to force him to cease to do

Looking at the terms of section 45D(3), 1t 1s to be

persons whose remuneration, conditions of employment hours of

work or working conditions to which the purpose in question is

seid to be related are persons actually employed and are all persons

other words, the relevant words refer to a state of affairs in

which the purpose in question relates to the conditions of the

objective, as I have called it, has nothing to do with the condit-

fons under which employees are employed or would be employed even

no issue with their own employers as to the conditions which

apply or are to apply to work done by them under the terms of their

current or future employment. The oil employment objective is designed to force the employer to change his method of doing business so that in the employment of its employees according to the existing terms of employment the employees will be required by the empioyer to work longer hours or do more of certain of

the better peid clesases of work the subject of their terms of employment .

Tne extent to which an employer may have the work which he perfores for customers carried out by his own employees or by independent contractors is a matter for him. It would be atrange that in the course of legislative action to protect traders from oppressive or unfair injury in trade and commerce there would te a provision permitting employees to engage in conduct injurious to an independent contractor for the purpose

or inducing their owm employer to change his business practices.

But if sub-paragraphs 45D(3) (a) (i) and (3)(b) (i211) are construed as though the words "being an employee of an employer" appear after the expression "that person" where it first appears, and similer interpolations are made elsewhere, the argument for the respon@entsz in this case becomes less plausible. It is my view that in the context in which sub-section (3) of section 45D appears that interpolation is necessarily implied. It is not that the statute excepts conduct relating to working conditions which would exist if the employer changed his business methods and as a consequence was likely to offer more employment or employment of a different class, but what the statute excepts from the forbidden

conduct is that committed in relation to the working conditions

of employment which do exist under the current terms of employ- are ment and/designed to change or perhaps preserve those terms.

In the course of argument it has been pointed out that aection 45D¢(3) is in terms restricted so far as it relates to the remmeration, conditions of employment etc., which are referred to in sub-peragraph ({fa)(i) to conditions being the conditions applicable to one of the participant employees in the action which is being taken in concert and other persons all employed by that same employer. Similar considerations apply in relation to sub-paragraph (3)(b)(iii). It emerges from this that Parliament did not contemplate that the provisions of section 45D(3) are applicable where employees of different employers act in concert for the purpose of injuring the business of some third person for the purpose which is related to the remuneration, conditions of employment of all such employees in relation to all such employers.

This feature of the section confirms my view that the probebilities are that when this matter is considered, as it will be at the trial of this action, the result will be that the section will be deemed to be inapplicable to the circumstances existing in this case where, as I have said, there is no current dispute and no impending dispute as to the terms and conditions of their employment as between the employees who are applying the ban - that is the employees of the major o1l-commanies - and their employers, the major o11

Accordingly, I think, exercising the jurisdiction by reference to the probability of success at the trial, the applicants have made out a prima facie case. If one goes to the balance of convenience it is clear that the present bans, if implemented, do injure and will resuit in the virtual suspension if not destruction of the business of the applicant Ascot, and the applicant Scott and the business of Red North Trucking Pty. Ltd. That, of course, would

If I grant the injunction the deteriment to the parties applying the bans is that they will lose the benefit of the action already taken, if one considers it as conduct applying a@ continuous pressure it 1s conduct which if lawful can be resumed at any time and the industrial effect thereof, it it is lawful, is not to be doubted. Accordingly, in my opinion, the balance of convenience is very much in favour of preserving the status quo under which the applicants carry on their business, the oil companies use their services according to the traditional way, the employees who are applying the ban continue to be paid according to the terms of the 011 company award and lose nothing, and the matter be finally considered according to the evidence which is brought forward on 8 May, if this matter comes to trial as at present

R preceding pages are a true copy of the Reasons for Judgment herein of his Honcur