Australian Federation of Construction Contractors & Ors v the Australian Building Construction Employees and Builders Labourers Federation [1984] FCA 218

discontinue by Minister for Employment and Industrial Relations - relevant considerations - discontinuance of

Federal Court of Australia Act 1976, Order 22, rule 2 of

AUSTRALIAN FEDERATION OF CONSTRUCTION CONTRACTORS AND ORS. v.

THE AUSTRALIAN BUILDING CONSTRUCTION EMPLOYERS' AND BUILDERS

V No. 23 of 1981 Coram: Evatt, Sheppard and Morling JJ.

IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY INDUSTRIAL DIVISTON

AUSTRALIAN FEDERATION OF CONSTRUCTION CONTRACTORS AND OTHERS

THE AUSTRALIAN BUILDING CONSTRUCTION EMPLOYEES' AND BUILDERS LABOURERS' FEDERATION

JUDGES MAKING ORDER : Evatt, Sheppard and Morling JJ.

Leave be given the applicant, the Honourable Ralph Willis, the Minister of State for Employment and Industrial Relations. to discontinue the vroceedings against the respondent.

All questions of costs arising as the result of the qrant of such leave and the withdrawal of the Minister from the proceedings be reserved.

Leave be reserved to any party to make such application

in relation to those costs as he or it may be advised.

The HONOURABLE RALPH WILLIS (who sues as Minister of State for Employment and Industrial Relations) and OTHERS

The AUSTRALIAN BUILDING CONSTRUCTION EMPLOYEES' AND BUILDERS LABOURERS' FEDERATION

THE COURT: The hearing of evidence in this application for the cancellation of the remstration of the respondent as an organization under the Conciliation and Arbitration Act 1904 commenced on 8 November 1982. Evidence continued until March. 1983. Evidence was given in respect of a variety of incidents which occurred in N.S.W., The Australian Capital Territorv and Western Australia. The Court sat in Melbourne, Sydney and Perth. The oral evidence extended over 3,000 pages of transcript; there are numerous exhibits themselves involving

On 16 March 1983 the Court, on the application of all applicants, adjourned the proceedings with liberty to the parties to apply. The aprlication was consented to by the

respondent. The purpose cr the adjournment was to enable the

parties to confer under the chairmanship of Mr. Vosti, a retired commissioner of the Australian Conciliation and Arbitratzron Commission, to ascertain whether some agreement could be reached which might bring industrial peace into the bu1rlding and construction industry 1n Australia. The subsequent history of the matter 1s recorded in the transcripts of the proceedings of the Court for 21 March 1983, 6 April 1983, 16 May 1983 and 31 October last. It is

summarised at pp. 3391 -. 3392 of the transcript for 31 October

On 12 Decemper 1983 the matter was again in the list. On that day the Minister of State for Employment and Industrial Relations sought leave to discontinue the proceedings. He did

so because the respondent has offered an undertaking as to its future conduct. The undertaking has been offered as an undertaking to each of the applicants including the Minister and to the Court. It 1s not acceptable to any applicant

ether than <=ne Minister. The remaining applicants, who comprise a number of employer organisations in the building andustry, by tneir Counsel describe the undertaking as:

"Meaningless, uncertain, unenforceable and wholly unacceptable."

During tne course of the argument wnich took place on 12 December 1983 difficulties were raised py members of tne Court about tne Court accepting the undertaking. The first question to be determined is*whether the Court should accept it. Rather tnan set 1t out in these reasons we have

appended a copy of the undertaking to them. We have not

appended copies of the three attachments referred to in it. For present purposes they are sufficiently described in paras.

An undertaking to the Court is given in lieu of an injunction and, if broken, is treated as the equivalent of an order for the purpose of enforcement; Thomson Australia

Holdings Pty. Limited v. Trade Practices Commission (1981) 37 A.L.R. 66 at p. 76. The majority of The High Court in that

case added (ibid.): "As an undertaking 1s given in lieu of an injunction and is enforceable in like Manner, the principles which govern the grant of an injunction by a court must guide it in deciding whether ut should accept an undertaking."

The Court 1s always concerned to ensure, so far as 1t can, that its orders are certain and provide clearly for what parties affected by them are bound to do or refrain from doing. Since undertakings are enforceable in the same way as orders the same attention to tne terms of an undertaxing offered to the Court 1s required as in tne case of an order.

This 1S so wnether the undertaking 1s acceptanle zo the

ln crder to emphasise to the purtzres vhy the Court was

conternsd to see whether the undertaking wricn tres responiart has offered 1s sufficiently cerccin to warrant i s accentcnce

by tne Court. The Court's attitude in this respect has nothing to do witn tne merits or substance si tne case, industrial

Aarmony, or the rlinister's own decision to accept it. Whether

he accepts 1t 1s a matter for him. He is not concerned

Having considered the terms of the undertaking we are satisfied that it should not be accepted as an undertaking to the Court. It 1S too uncertain. We do not give detailed reasons for this conclusion. It 1s surficient to draw attention to para. 1. It may have been one thing 1£ it had sazd:

"Do comply with its obligations as an organisation of employees registered under the Act." Minds may differ on this question. But the vice of the undertaking 1n its present form 1s in the use of the words,

"in the same terms as other organizations of employees

The question is what meaning does the undertaking nave especially taking into account tne words last quoted. One possible meaning 1s that tne respondent will only be in breach of that vart of tne undertaxing 1f any breaches of the Act committed by it are more extensive or more serious than preaches committed by other registered organizations. Tnere are about 150 organizations of employees registered. All no doubt behave in markedly different ways. This in part will be due to the different industries in which treir members are encaged, the jiitferant problams which confront their executives and mempers and

a& host of otner matters. If it were suggested that there

nad been a preacn of vara. 1, how could one ever determine

satisfactorily wnevher that was so or not? The / 1c

the undertaking may be intended to mean something different to that which we have postulated. But if so, that meaning has escaped us. If it 1s intended to mean something different, that only highlights the difficulty which there is in the Court's acceptance of what the respondent has

During the hearing there was discussion with Counsel for the respondent in which it was suggested that the wording of para. 1 might be altéred to make clear what was meant. Since the adjournment we have been informed by the solicitor for the respondent that no change to the wording of the

Apart from the meaning of the words used in para. 1, there needs to be considered the terms of para. 2. This obliges the respondent to have regard "to the policies of the trade union movement and its (the respondent's) collective commitment to such policies." That puts a qualification on the obligation imposed by para. 1 which increases the uncertainty of the content of the obligation in para. 1. Para. 2 seems to envisage that there may be circumstances in which the respondent will not be obliged to comply with para. 1 notwithstanding that it will nevertheless be in breach of obligations imposed upon it by the Act under which it is registered. Apparently, if the policies of the trade union movement run counter to the provisions of the Act, the

the undertaking which has been offered. Nevertheless, we are

still asked to grant the Minister leave to discontinue the proceedings. The application 1s not opposed by the remaining applicants nor by the respondent. Ordinarily, the Court will grant a party leave to discontinue proceedings brought by him provided it is satisfied that appropriate orders have been made in relation to costs and that no injustice will be caused the

other party by the bringing of fresh proceedings if the Court

1s Of opinion that it would be unjust that fresh proceedings

be brought. Normally the Court would not be interested in

doing otherwise than giving effect to an application for

leave to discontinue where no other party to the proceedings

We have paused to consider, however, the circumstances of the present case., It seems to us that an application under section 143 of the Act for the cancellation of the registration of an organisation involves questions of public policy. There LS a question in our minds whether an application for leave to discontinue such a proceeding is governed by the ordinary rules to which we have referred. The evidence which we have so far nad in the matter raises,1n our opinion, sericus matters for consideration. We have not heard tne respondenc's case and the applicants' case is still incomplete, so our statement 1s made tentatively. It by no means represents any concluded view about the evidence we have heard. But 1% 15 our tentative view concerning that evidence which nas made us pause to consider whether we should not investigate the question of whether considerations of public policy might

militate against our acceding to the Minister's application.

Having reflected on the matter we have decided that we should accede to it. In the administration of the Act as a whole, the Minister plays a substantial part. He was obviously intended by the legislature to represent the public interest in many situations. Such a situation is an application under section 143 itself, the section specifically providing that the Minister may make an application pursuant thereto. If the Minister, having instituted such an application, wishes to withdraw 1t, 1t would seem, even 1f public policy considerations may be taken into account, that he, representing as he does the public interest, should be allowed to act as he wishes. If the Minister subsequently wishes to be heard in the matter he may "intervene in the public interest;"see subsection 106 (1) of the Act. We wish to make it clear,however, that we are leaving open the question of whether, in the event of an applicant other than the Minister wishing to discontinue proceedings of this kind, leave to discontinue will involve an applicant demonstrating that there are no puplic policy considerations wnich militate against the grant of the application. We leave for the future tne question of whether that would be a relevant consideration

Although we are not prepared to accept the undertaxing otfered ony the responcent as an undertaking to the Court, ve are prepared Zormally to note it as én undertaking given to the appiicants including the Minister. It may nave relevance for these proceedings wnich the remaining applicants desire to prosecute. It mav also have relevance 125 any other proceedings

of this kind are instituted in the future by the Minister or

We give leave to the Minister to discontinue the proceedings against tne respondent. We reserve all questions of costs arising as a result of the grant of that leave and the withdrawal of the Minister from the proceedings. Leave is reserved to any party to make such application 1n relation to those costs as ne or it

It 18 next appropriate to give directions as to the future hearing of the matter. That 1s something which

Icertify that this and tae Sever (7) preceding pares are a true cony of the Reasons fcr cudgme.it herein of ty Full Gut

The responcent acknowledges that registration és an orgamisaticn of employees pursuant to the Conc:liation and Arpitration Act 1904 ("the

(1) recognises that such registration creates duties and responsisuities In registered organisaticns inte" alia to utilise the means pravided by the Act for the prevent.cn and settlement of industrial aisputes and otherwise refrain from conduct preventing or hindering the achieverrent of the objects of tne Act and

(2) affirms :ts desire and intention to participate in the prevention and

settlement of such disputes in accordance with the Act.

HERESY UNDERTAKES to the Fecera! Court of Australia anc to the

l. To comply with its obligations in tne same terms @s 9ther

organisations of empioyees registered uncer the Act.

2. In comp:ying with 11s obligations, the organisation wii necessarily

have regard to the policies of the trade union movemen: and its

3, The organisation agrees io Sonour 'is Commitment given in the

g o terms attached (see Attacnment |) to the National Wage Principles of the Cone:liation an¢ Arbitration Commission :n its aecis.ic1 dated

The organisation, as an expression of its commitment, reaffirms its preparedness to give the undertakings in terms of the Memorandum of Understanding entered into between the National Industrial Construction Council and the organisations in the building and construction industry (Attachment 2).

To comply with its obligations as an organisation registered under the Act and the terms of the Memorandum of Understanding, tne organisation agrees that in developing agreements, policies, and guidelines for the improvement of industrial relationships in the Duilding and construction industry, the prime objectives to be

(a) To settle award disputes in a manner consistent with the economic strategies of the Federal Government and to improve the efficiency and stability of the building and

(b) To eliminate the incidence of widespread industrial action in support of claims for increased wages or better conditions of employment, and to munimise the level of industriai disputation over other issues; .

(c) To achieve wages anc conditions that are fair and equitaple having regard to the state of the economy and the circumstances prevailing in the 5Suilcing and construction industry;

(d) | To introduce an allowance, and to adjust existing allowances in

accordance with past practice, in recognition of the

substantial changes which are to be implemented w.thin the

(e) To meet regularly to consider emerging and recurring

(i) To maintain cispute settling procedures, and to imorove the

The organisation agrees to commit itself to the specific uncertaking in the Agreement. The organisation recognises that the Agreement set out in

Attacnment 2 has not been able to be fully imciemented, but

(a) the organisation 1s, consistent with the terms of tne Agreement, Continuing to confer ta reach settlement of tne

(b) the organ'sation unaertakes that its commitments in terms of the Act will be the same as other organisations registered

The undertaxings given by the orgamisation are supported by tne ACTU as set out in the decision of the ACTU Executive

) ) VICTORIA DISTRICT REGISTRY ) ) INDUSTRIAL DIVISION )

AUSTRALIAN FEDERATION OF CONSTRUCTION CONTRACTORS AND OTHERS

THE AUSTRALIAN BUILDING CONSTRUCTION EMPLOYEES' AND BUILDERS LABOURERS' FEDERATION

THE COURT: The hearing of this apvolication for the dereqistration of the respondent Union commenced in Melbourne in November 1982. The hearing proceeded in Melbourne and Sydney during the balance of the vear and in Perth in February 1983. It was to have proceeaed in Melbourne in March of that vear, but at the request of the parties, who then included the Minister for Employment and Industrial Relations, was adjourned to enable discussions and negotiations to take place, There was no further hearing of evidence in 1983. On 12 December 1983, the Minister applied

for leave to discontinue the proceedings on his part. On 19

The remaining applicants who are various employer organizations representing employers engaged in the building industry announced that they intended to proceed with the application. Neither the Court nor the parties could proceed with the hearing immediately. It was fixed to resume in Melbourne on 1 May 1984. Evidence was taken in Melbourne throughout that month. No part of June could be made available for the hearing. It resumed in Sydney on 2 July 1984, and continued until 12 July 1984, when counsel for the applicants requested an adjournment in order to permit a foreshadowed application for leave to discontinue the

proceedings to be made. The matter was adjourned until today

This morning counsel for the applicants announced that pursuant to Order 22 r.2(1)(c) of the rules of this Court, ail parties had consented to the discontinuance of the proceedings with the consequence that the Court's leave was

"2,¢(1) Subject to sub-rule (2) a party making a claim for relief may discontinue a proceeding so far as concerns' the whole or any part of any claim for relief made by him -

(c) where judament has not been entered - with the consent of all the parties;"

Sub-rule 2(2) has no application to the circumstances of this

As we read the rule, the parties are entitled to take the course announced by counsel for the applicants. It obviates the need for leave to be obtained. Upon filing in Court of the notice of discontinuance this morning, the

proceedings came to an end. It 1s therefore inappropriate

for the Court to express any view on the propriety of the

course the parties have taken whether from the point of view