Burwood Cinema Ltd. v Australian Theatrical and Amusement Employees' [1984] FCA 202 | Case summary

Federal Court of Australia|1984-07-16|Before: Gray J, Brennan J

Trage Practices - boycott on overseas trade and trade within a

nertatory - interim injunction - existence of industrial dispute

defence that conduct related to conditions of employment -

acting 1n concert - dominant purpose - balance of convenience -

Burwood Cinema Ltd. v Australian Theatrical and Amusement Employees'

Tillmanns Butcheries Pty. Ltd. vw Australasian Meat Industry Employees'

Nauru Local Government Council v_ Australian Shipping Officers

NEW SOUTH WALES DISTRICT REGISTRY ) No. G205 of 1984 GENERAL DIVISION - as

Second Respondent AND: DICK ANNEAR Third Respondent

The Application in this proceeding is dated 27th June 1984, and was filed with the court on 28th June. On 3rd July, the Applicant's Application for interlocutory relief came on for hearing before me. Mr. Barker Q.C., with Mr. Hutley, appeared for the Applicant. Mr. Tubbs of Counsel appeared for the First and Second Respondents. Io was told that the Third and Fourth Respondents had not been served with any documents in the

proceeding, but Mr. Barker indicated that relief was sought

The relief sought in the Application is in the following

A declaration that in breach of section 45D(1A) of the Trade Practices Act, 1974 the first respondent in concert with the second, third and fourth respondents has engaged and is convinuing to engege 1n conduct for the purpose, and having or likely to heave the effect of preventing or substantially hindering *he applicant from engaging in trade or commerce an the Northern Tariilory, and between

affidavits of James Maclean, one sworn on 26th June 1994 and the other on 5th July 1984. The Applican« tendered several documents produced by certain of the Respondents on subpoena. Mr. Benjamin gave oral evidence and was cross-examined extensively by Mr. Tubhs on 3rd, 6th and 9th July 1984. In addition, the First and Second

Respendents relied on two Affidavits of Robyn Bloch, both sworn on

It must be noted that, the evidence being in this state, any finding of fact which is expressed in these Reasons for Judgment is not in any way intended to be a final devermination of

the facts. Pursuant to section 80(2) of thea Trade Practices Act

1974, the court hes powcr to yrant en interim injurction "where in

the opinion ef the corrt it is desirable to do so'. "he discretion thereby given is to be exercised in acceordanes with the principles cstablisned for dealing with applications fur

loterlocutory statucory injunctions in Beecham Group Lid. v

Bristol Laboratories Pty. Ltd. (1968) 118 C.L.R. 618 at page 622.

See World Series Cricket Pty. Ltd. v Parish (1977) 16 A.L.R. 181

at pages 185-7, 193-4 and 200, and Victorian Egg Marketing Board v

Parkwood Eggs Pty. Ltd. (1978) 33 F.L.R. 294 at page 311 per Brennan J. These principles require that the court first consider whether the applicant has made out a prima facie case, in the sense that if the evidence remains as it is there is a probability that at the trial of the action the plaintiff will be held

entitled to relief. If such a prima facie case is made out, the

second enquiry is as to the balance of convenience. Accordingly,

any findings of fact which J express are in no sense intended as a

The Applicant 1s a company incorporated in New South Wales. On 10th May 1984, it entered into a contract for the purchase from the Northern Territory Development. Land Corporation of a property known as the Point Stuart Abattoir. This is located east of Darwin in the Northern Territory. The total purchase price expressed in the contract is $1,250,000.00. Although settlement of the contract is overdue, it has been delayed because

of a contention by the Applicant that the vendor is unable to

provide vacant possession. Details of the occupancy of certain

living quceters by furmec employees cf the Applicant appear beter.

Tne ploperty concerread haa previousty been optreted cs an abattoir by anothar company, which had yonc into zeceivershi,». fhe Applicant purchaseca the property with thea intention of operating it as an abattoir for the slaughter of buffalo and cattle destined for export. Pursuant '*o the contract, the Applicant entered into possession of the property on 10th May 1984, for the purpose of carrying out works designed to upgrade it. Certain works, costing approximately $750,000.00 have been carried out since 10th May 1984, with a view to satisfying standards imposed by the Department of Primary Industry under the Export (Meats) Regulations of the Commonwealth of Australia, and by the European Economic Community for the import of meat intro

its member countries. These works are not yet completed. They

have been carried out, at least in part, by employees of the Applicant who previously worked at the abattoir, and whe are or were members of the First Respondent. The First Respondent is a trade union of employees in the meat industry. The employees concerned were engaged for the purpose of coastruction works, with

a view to their subsequent engagement in the operation of the

The Applicant has undertaken negotiations with respect to the supply of buffalo and cattle for slaughter at the abattoir, and with respect to the export and sale of the resulting meat. For the purposes of this Application, I treat it as established that the Applicant has committed itse]* to purchase hetween 28,005 and 30,000 head of stock trem the Northern Australien Cattle Co. Pty. Ltd. for processing at the abatnoir. I olso trszar iv as esiiablish2d that the Applicant has received a commitrerr from Haus-Feter Kiugharét, a director of H.y.K., a Gernon ooncern, for the purchase of all or most-of its output in 3984. Export to the European Economic Community is dependent upon inspection and approval of the abattoir by an E.E.C. representative. It was intended that this should take place on 25th June 1984, but, because ef events which have occurred, that has not taken place. In addition, the Applicant had either an offer from or a contract with P. & S. Siegel Pty. Ltd., a Victorian company, for the purchase of 600 tonnes of buffalo meat to be exported to Taiwan.

That offer or contract has disappeared, as a result of events

The Applicant intended to commence production, in a limited way, on llth June 1984, and to go anto full production as soon as possible thereafter. Full production would have meant the slaughtering, processing and packing of between 250 and 300 beasts per day. Because of climatic conditions, it is possible only to operate the abattoir until the commencement of the wet season,

Before the Applicant entered into possession of the abattoir, Mr. Benjamin spoke to a Mr. Finn, apparently a member of the First Respondent, who had been works delegate at the abattoir when it was operated hy the previous company. He told Mr. inn that the Applicant intended to operate under a contract eyster, and asked Mr. Finn to meet him at the Mindil Beach Casino and to bring figures for wages carned at the ebatroir under the previous company. Mr. Finn did not supply these figures, but Mr. Benjanin obtained them from elsewhere. He used them to calculate rates for

The essence of the proposed contract system was that a company would be formed in which each of the Applicant's employees who were to operate the abattoir would hold shares. Those employees would cease to be employed by the Applicant, and become employed by the proposed company. The Applicant would pay to the proposed company monies calculated upon the number of heasts

Slaughtered on a particular day, at rates which varied between

labourers, boners and slicers, and slaughtermen. The proposed company would then make payments to the employees. From the point of view of the employees, the advantage of this scheme was said to be that payments of remuneration to them could be spread over an entire year, instead of being paid in larger amounts during a limited season; it was considered that, although no reduction in overall liability for income tax would result, deduction of gzxoup tax would be decreased. From the point of view of the Applicanx, certain costs of employing labour which it would otherwise have porne would be transferred to the contracting company.

On 21st May 1984, Mr. Benjamin met with Mr. Finn and two other employees of tho 4Artitcant. They discussed payment ander the contract system. Cn the figures proposed by Mr. Beoujamiu, labourers would earn up to $105.00 per day, and slaughtermen up +o $1,872.00 per week. It was proposed "hat the abattoir operate on a six day week for betvcen 8 and 10 hours per day. Mr. Finn declared that he was not prepared to work for less than $2,560.00 per week, and would not negotiate on this. On the following day, Mr. Benjamin met the Applicant's employees at the abattoir. Mr. Finn again refused to work for less than $2,500.00 per week, and resigned. He urged other empioyees to do _ so. Mr. Finn's

In late May 1984, there was at least one other meeting between Mr. Benjamin and all or most of the employees at the

abattoir. At all times, Mr. Beniamin made it clear to the

employees that the Applicant would operate under ai contract

system, and that this was not a point about which he wouid

At a meeting on 3rd June 1984, Mr. Benjamin produced a typewritten proposal for a contract system, containing figures from which rates could be calculated. This document was signed by

a number of employees; others expressed their agreement with it.

In the meantime, the First Respondent was concerning itself with the question of award coverage in the meat industry in the Northern Territory. The evidence before me on this aspec. of the matter is limited. It does appear that the irst Resp. acen: is pursuing, wn the Australian Concilation and Arbicra-ion Commission, se@tilement by award of an indestrial dispute between vt and a number of meat producers in the Norchern Territory. The Applican: 1s not a party to that dispute. It is uncer'ain wheincr

the steps necessary under section 49 of the Conciliation and

Arbitration Act 1904 for the making of an award into a common rule

throughout the Territory have been or will be carried out. The proceedings appear to have been delayed by attempts by the First

Respondent to have disqualified from hearing the matter the member

of the Commission charged with that responsibility.

On or about 25th May 1984, the Second Respondent, who is the Feceral secretary of the First Respondent, sent a telegram to

Mr. Benjamin. This telegram appears to proceed on the mistaken

assumption that Mr. Benjamin was an officer of the company which had previously carried on the abattoir, and which is now in

"The A.M.I.E.U is concerned at your failure to respond positively to our attempts to introduce equitabie conditions of employment at your meat processing establishment.

The A.M.I.E.U. is prepared to enter into an agreement to be registered with the arbitration commission to cover the particular requirements affecting your operation.

The union would appreciate your early response for an interim agreement to apply until such time as the proceedings before the Conciliation and Arbitration Commission are concluded."

On 279th May 1°84, Mr. Benzamin sent to the Second Respongent a telegram in response to the above telegram. This

"Dear Sir re your telegram 25/5/84 in response to your telegram I wish to advise. 1. On the contrary the agreement reached with union members is far more equitable than has previously existed and it has the consensus of approval stop 2. I am surprised and disturbed at the allegations made in your telegram stop could you please advise source and details of information which has been provided"

During the first week in June 1984, certain employees of the Applicant attended a meeting at the Bark Hut, a hotel between

Darwin and Point Stuart. The meeting was also attended by the Fourth Respondent, the acting branch secretary of the Queensland

branch of the First Respondent. 'That meeting voted in favour of

the reinstatement of Mr. Finn as works delegate. Mr. Williams told the meeting that a black-ban had been put on the Applicant's abattoir, along with certain other abattoirs in the Northern Territory, and that the reason for the black-ban was the seeking by the union of a standacd award. When the results of this meeting were reported to Mr. Benjamin, he declined to recognize Mr. Finn as works delegate. He telephoned the Second Respondent who invited him to Sydney to discuss the matter on Friday 15th June. The Second Yespondent also suggested a meeting with other officials of the First Respondent in the Northern Territory. This meeting was to take place off the premises of the Applicant's abattoir, so 'that Mr. Finn could attend, as Mr. Benjamin had refused Mr. Finn access to the abbatoir. he Secend Respo:jen* stated that the Fourth Respondent bad authority to neaqeliake on behalf of the First Responden., and wade it clear that whet was sought was a standard awacd, with a tally sysv.em, based on the Queensland Meat Industry award. Mr. Senjyamin complained aLout the calling of a ban when the abattoir was not even in production and when members of the First Respondent were being employed in construction work. He did say that he would be happy to attend

This meeting took place at the Mindil Beach Casino on 7th June 1984. The Third and Fourth Respondents were there, as well as Mr. Finn. Mr. Benjamin took with him six of the employees of the Applicant. The Fourth Respondent stated that he had

authority to negotiate on behalf of the First Respondent. The

texms he proposed were that the Applicant employ all of the previous employees of the abattoir, that it pay more money to those employees, and that it operate under an award, rather than a contract system. The Fourth Respondent pointed out that under an award system, based on productivity, if 300 beasts were slaughtered and processed per day, boners, slicers and slaughtermen should be paid $7,300.00 per week. Mr. Benjamim complained that this was unrealistic, and some of the employees expressed the view that the contract which the Applicant had offered was satisfactory to them. They invited the Fourth Respondent to attend the abattoir and talk with the employees. The Fourth Respondent replied that a decision had been taken hy the Federal exacutive on wehnalf of the majarity of merbecn af tine

pongen*. He proposed, as ani alternative +o paynorts in excess of $7,009.00 per week, an increase in the lenour Force. he made ut clear that his caleulations were purely on th» uunhec of beasts processed. He made it clear to Mr. Renjamin what the b-a had been imposed because the First Respondent was seeking an award system. He threatened that all affiliated unions would be called in through the Trades and Labour Council to support the First Respondent's action. Some argument took place over the accuracy or otherwise of a press release. The Fourth Respondent then invited Mr. Benjamin to negotiate with the Second Respondent and

again threatened co-operation by other unions in the ban. Mr.

Benjamin protested that he was being given no choice but to accede to the demands made on the Applicant, and threatened to stand down

employees. The Fourth Respondent again invited negotiation. Mr.

Benjamin stated that he would make arrangements for the Applicant t6 become a member of the Meat and Allied Trades Federation, and that that body would negotiate for thse Applicant. The Fourth Respondent did not wish to negotiate with that body, Mr. Benjamin also referred to the hearing before the Conciliation and Arbitration Commission and to his expectation that an award would be made to operate in the Northern Territory some time this year. The Fourth Respondent indicated that the First Respondent wished to negotiate an award with the Applicant immediately, regardless of the proceedings in the Conciliation and Arbitration Commission.

The meeting broke up without a solution having been achieved.

On his return to the abattoir from that meeting. My».

Benjamin attcmpred to telephone the Second Respondent in Sydney

Having failed to do so, on Sth Sune 1984, he sent a telen to woe Second Respondent. This «telex purported to contain an 2c cunt oF the meeting at the Mindi? Beach Casino. At times, its langue.2e ic

abusive; 1t was certainly net conciliatory. Mr. Benjamin decliree to have any further discussions with the Fourth Respondent. The telex also informed the Second Respondent, as was the fact, that Mr. Benjamin had stood down all employees at the abattoir unti

further notice. By this, Mr. Benjamin meant that he had declined

Subsequently, Mr. Benjamin did speak to the Second Respondent by telephone, and repeated that he did not wish to have

any further dealings with the Fourth Respondent. The Second

Respondent suggested that Mr. Benjamin come to Sydney to have discussions with him. Mr. Benjamin declined on the ground that he had a construction program on at the abattoir and was too busy. He invited the Second Respondent to come to the abattoir and discuss the situation with the employees. This invitation 'he

Second Respondent also declined on the ground that he did not have

Shortly thereafter, on a date which is not given, a meeting of employees at the abattoir took place. A report was given to the employees of the meeting with the Fourth Respondent at the Mindil Beach Casino. Certain employees told the meeting that they had been adviscd by che First Respondent that all members of the First Respondeut were not allowed co work until negotiations nad been conpieted; w2 they aid work. their tickets would be tn jeopardy and they would not get a job anywhere in Australia.

A couple of days after the meeting with the Fourt Respondent at the Mindil Beach Casino, Mr. Benjamin speke to the Third Respondent, the acting Federa President of the First Respondent. The Third Respondent repeated that the First Respondent wanted an award based on the tally system in the Northern Territory immediately; he threatened that the industry would be closed down if this were not achieved. Mr. Benjamin complained about the figure of $7,000.00 per man per week. The

Third Respondent agreed that the figure was high and suggested e

that the labour force be increased by 1]00 to 120 people. Mr. Benjamin asked where these persons would be housed, and the Third Respondent suggested the addition of an army hut or barracks. Mr. Benjamin complained about increases in production costs, saying that they were already the most expensive production costs in the world. The Third Respondent stated that the union required a fair day's pay for a fair day's work. Mr. Benjamin referred to the figure of $1,800.00 per week. The Third Responaent stated that the employees were having to work too haid for this figure u.? that more people should he brought in to bring the cost per head down. Some discussion took place over the willingness of persors to work in an isolated place for lesser sums. Mr. Benjamin again reterred to the possibility of an award of *he Conciliation and Arbitracion Commission. The Third Respondent said some thirgs which were critical of the Cormission ara the Meat and «allted Trades Pederation. He finished by anviting Mr. Benjamin to Syane > to talk with Mr. O'Toole.

On llth June 1984, Mr. Benjamin met the employees of the Applicant at the abattoir. He asked whether they were prepared to work. Some of the employees stated that they were prepared to work but were unable to do so because the First Respondent had directed them not to. Some complained of threats that they would not be able to work anywhere in Australia, and others complained of threats of violence to them if they were seen tc have worked.

Mr. Benjamin told the employees that they had 72 hours in which to

make up their minds whether they would return to work or leave.

At a further meeting with employees on 12th June, Mr. Benjamin repeated this ulrimatum. One employee announced that he was going to work and handed around a copy of his resignation from membership of the First Respondent. The others repeated that they wished to work but felt themselves unable to do so. On 13th June,

a final meeting was held, at which Mr. Benjamin gave the employees

the final choice of resuming work or leaving. Some chose to resume work. Approximately 22 said that they would not he returning to work. Mr. Benjamin asked them to pack their

belongings and make arrangements to leave the company property. It has not been possible to complete the construction works on rhe abattoir by the use of those who returned to work. Those who refused to work have not left, but continue to occupy Living accenmodation and to use cblutions facilities on tue sche. The Applicant has taken proceedinys in the Supreme Court of che Northern Terrirory to evict these persons. Judgment in those proceedings was givei on 3rd July 1984, and the persons concern:d were given a period of six weeks from that date to vacate the

Mr. Benjamin has received complaints, not only from employees of the Applicant, but also from an employee of a company which purchases hides. These complaints are to the effect that threats have been made that anyone who works will be plack-banned at all abattoirs in Australia, and will be ths

Since the dismissal of the employees, further telex messages have passed between the Second Respondent and Mr. Benjamin. On 13th June, Mr. Benjamin advised that he was unable to keep an appointment to see the Second Respondent on 15th June 1984 "due to extensive commitments". On 14th June 1984, Mr. Benjamin invited the Second Respondent to come to Darwin "to discuss the matter with not only your own members but also the operators of the abattoirs concerned". On 15th June, the Second Respondent regretted cancellation of the conference fixed for that day, advised of his availability on 21st June, and suggested that Mr. Benjanin concentrate on settling the dispute as it atfected the Point Stuart Abattoir. On 22nd June, the Second Respondent advised four furthers dates on which be would be evellable for negotration. Te appears that there was ai furthar teleproue conversazion dSetween Ur. Benjamin ana the Second Respoidenr an 2lst June 1984. This was followed by a lengthy telex from mr. Benjamin rejecting a prorosal to operate the Queensland Mmeak Industcy award in the Northern Territory, renewing the invitation to the Second Respondent to visit Point Stuart to "see at first hand the nature of our industry in the Northern Territory and for discussions with the workforce", end stating that Mr. Benjamin would be prepared to go to Sydney for negotiations if the bans

The Applacant complains that it is unable to complete the construction of the abattoir, to procure its inspection, and

to operate it. Jt ws thereby deprived of substantial revenue. As

a consequence of the Respondents' ban, and an associated picket line, employees of Petromart Pty. Limited, a distributor of fuel, are refusing to deliver fuel to the Applicant at the abattoir. Save that the picket line is regarded as a picket line of the First Respondent, and that members of the Transport Workers Union employed by Petromart Pty. Limited are refusing to cross it, there

is no evidence as to the precise identity of the persons

On these facts, a prima facie case is established that the Respondents, in concert, engaged in conduct for the purpose. and having or likely to have the effect, of preventing or substancially hinaering the Applicant from encaging in trade or commerce between Austcalia and places outside Australie and within

the Nerthern Territory. What is also clear from thes tacts is

wy w Qu ~ G re S wt He fa) mm pw]Bd $ " ) o fab yn Go

kind between the First Respondent and the Applicant. Int was urged on me that I should not. take this view, »ecause of the expressed willingness of the Applicant's employees to work under a contract system, and their alleged difference with the First Respondent on this issue. Both in common parlance, however, and for the

purposes of the Conciliation and Arbitration Act 1904, an

industrial dispute can exist upon a demand made by a trade unton, without the need for concurrence by employees, members of the union, in the demands made by the union on their behalf. It has

been recognized since Burwood Cinema Ltd. v Australian Theatrical

and Amusement Employees' Association (1925) 35 C.L.R. 528 that an

organization of employees registered under the Conciliation and

Arbitration Act 1904 acts as a party principal, and not as an

agent for its members, in the creation of a dispute. Wor is it to the point that vthe employees of a particular employer might appear to be thoroughly satisfied with the terms and conditions of their employment. One of the fundamental eurposes for which trade unions exist is to prevent individual employers making bargains with their own employees as to terms and conditions of employment, which may depart from standards laid down within an industry. In many cases, standards are hard won over a long period of time, and in is understandable that a trade union will be anxious to

negotiate with an employer, notwithstanding that the employer may

have mide a bargain directly with its own employees.

Respondens for what he sees as theiz unreasonable insister nm t G

excessively high remuneration for employees under on awacdéd systen. It may be that an czttempt simply to transfer to the Norchern Territory, and to the particular circumstances of the Applicant's abattoir, the terms of the Queensland Meat Industry award would not be appropriate. On the other hand, criticism might be levelled at the Applicant for its failure to explore with its employees all of the implications of the proposed contract system. Reliance was placed upon advice given to the employees by a Mr. Fong, an accountant. This advice, in somewhat anprofesstonal

language, concentrates upon questions related to income tax

deductions; and plainly seeks to "seli" the contract system. It

may be that no adequate explanation has been given to the employees of all the consequences which may flow from severing their employment relationship with the Applicant and creating a new one with a company which is to be a merce shell. Nor does it appear from the evidence before me that sufficient information has been made available as to the effect of the expenses of administration of the proposed employing company and the payment of remuneration by it, as well as questions of sickness and injury. At all events, it is not for me to attempt to decide the rights and wrongs of the parties to this industrial dispute. I am not equipped by evidence to do so, and the settlement of industrial disputes is not the Function of this Court. One thing

that does appear clear to me, however, is tral the cispuce is one

which ought ro be dealt with by the Australian Conciltanion and

Arbitration Cormission, which is equipped with ihe expertise aad

the powers to perform the function of settling the dispute, either by conciliation or by arbitration. Both sides seem to have been reluctant to avail themselves of the facilities offered by the Australian Conciliation and Arbitration Commission. in this

It is also possible to be critical of the Applicant and the Respondents in other respects. The Respondents have resisted invitations to attend the abattoir and talk to the employees themselves, preferring to dictate to them from afar, although it does appear from the evidence before me that there have been

frequen* telephone conversations between officers of the First

Respondent and employees at the abattoir. In looking at the

conduct of the Applicant, it is necessary to remember that this is

an application for interlocutory relief. On such an application,

it would normally be rare to express findings as to the credit of a witness who is likely to be called to give evidence on the trial

of the proceeding. Because Mr. Benjamin gave extensive evidence,

and because I am asked to rely on his evidence in some crucial

respects, I feel justified in making some comments as to his

performance in the witness box. I have formed a view of Mr.

Benjamin's credit which is adverse to him. In his affidavit sworn

"the abattoir is not yet operational and has been prevented From

being so by the action of the A.M.T.".U...." on the same day, M.

Benja@ain svore another affidavit, which was to be filed in the

Suprene Court of the Northern Territory, in proceedings in which the Applicant sought to evict its forwer employees, who continued

to live in the quarters and to use 'the ablvticon facilities provided at the abattoir. In vhis Affidavit, Mr. Renjarmin said

thar without accommodation on the land available for new workers,

the Applicant could not employ workers and was effectively

prevented from operating the abattoir. Notwithstanding the

statement made in the last-mentioned affidavit, and his knowledge

of the judgment given by the Supreme Court of the Northern

Territory on 3rd July 1984, which allowed the former employees up

to six weeks 40 vacate the living quarters, Mr. Benjamin was still

prepared to swear in the witness box hefore me, on 6th July 1984,

ihat the ban the subject of these proceedings was the sole reason

why the abattoir could not be completed and could not operate. From this, and from other aspects of his evidence, I formed the view that Mr. Benjamin was prepared to swear to any proposition which he thought might advance the Applicant's case in some particular respect. Normally, in an Application of this kind, the court is obliged to accept the facts put forward by an Applicant at their highest, especially if they are not the subject of contradiction by other evidence. In this case, because of the views which I have formed of Mr. Benjamin's credit, where inconsistencies appear in his evidence, I am unwilling to accept in every instance the statements made which are most favourable to

TE it can be said that the Resvondents were reluctance vo

clatce, tne some can certainly be s4714 of Mr. Senjamin, whose conduct, for this purpose, is that of the Applicant. On his own evidence, Mz. Banjamin told the Second Respondent that he (br. Benjavin) could not go to Sydney ¢ negotiate as he had a construction program at the abattoir and was too busy. This was at a stage when, again on his own evidence, Mr. Benjamin had "stood down" the employees of the Applicant, who otherwise would have been engaged on the construction program. Subsequent invitations to go to Sydney and negov.iate with the Respondents were also vefused, at times when it must have been clear to Mr. Benjamin that the Applicant was in the position of difficulty which is the subject of this Application. It is also reasonable

to infer that Mr. Benjamin's continued suggestions to the

Respondents that they go to the abattoir and talk with the employees were motivated more by a desire to use the employees to persuade the union to call off its ban than by any real desire to negotiate an end to the dispute. Although the Applicant has attempted to present this case to the court as one in which the Respondents seek to disrupt and destroy an amicable relationship between the Applicant and its employees, Mr. Benjamin was prepared to cast aside those employees, even to the extent of saying that some of them would not be re-employed, when they failed to take the Applicant's part in its dispute with the First

As T have already stated, a prins fetle cus is established against 'the Respondents af conduct of

This finding, however, Gogs nok conclude the gqguastion whether tne Applican: has mad2 out a prima facie case that it is likely "0 succeed at the trial. It is necessary to look at sub-seckion {7) of section 45D, for the purpose of determining whether, at the trial, a defence under that sub-section is likely to succeed. In this case, the relevant paragraph of the sub-section is paragraph {(b). I am satisfied that the First Respondent, which is an organization of employees for the purposes of the section, and the other Respondents, who are officers of the First Respondent, have engaged in the relevant conduct in concert with each other. For paragraph (b) to be applicable, it is also necessary that the

Respondents engage in conduct in concert with an employee or

employees of an employer. In this case, the relevant employer is the Applicant. It was urged upon me by Mr. Barker that I could not find that employees of the Applicant engaged in conduct in concert with the Respondents, because the employees were unwilling parties to the conduct. Reference was made to evidence of complaints by various employees of threats in respect of their future employment, and of threats of violence. Mr. Barker relied on dictionary definitions of "concert" to support the proposttion that conduct in concert had to be conduct resulting from an agreement. He submitted that an agreement could not result where coercion or duress was present. I am prepared to accept that,

before two persons can act in concert, there must be agreement

berween Giea. The concept of acting in concert ig more familiar

un the criminal law than in civil ses, and the necessiny for an

ajreemenlt ts recognized in the criminal law. See R. v Lowery ard

King (No. 2) [1972] V.R. 560 at page 561 and fh. v Mat

Yhempson [1976] V.R. 470 at pages 477-8. As was said in the

last-mentioned case, however, the question whether an agreemen+t exists for chis purpose is not to be answered by reference to the formal requirements of a binding contract. The Full Court of the Supreme Court of Victoria in that case held that it was possible for one person to act in concert with another, even if that other is insane. There are authorities in the criminal law in which it has been held that the existence of facts amounting to the defence of duress in the criminal law does not prevent a jury from

reaching the verdict that the person subject to the duress acted

in concert with another. See R. v Harding [1976] V.R. 129, and Re

v Evans and Gardiner (No. 1) [1976] V.R. 517, especially at page

520, where Lush J. dealt with the distinction between a person who

says "Being compelled, I agreed" ani a person who says, "I aid not

agree". Even in the area of contcacts, duress renders an

agreement voidable at the option of the party who entered into it

under duress, but does not render it void ab initio. See Barton v

Armstrong £1976] A.c. 105, especially at pages 118-9. In that case, the Privy Council, by majority, tendered advice that a declaration should be made that the deeds iu question were executed under duress and were void; the reasoning in the passage to which T have referred makes it clear that such a declaration

was based upon election by the party subject to the duress «o

Je follows rhat, even it the Applicant's employees ijn the preseat case stopped worl. pursuent to the ban by retson of coercion or duress, hey did so in concert with the Resnouden-s. In any event, on the evicence before me, i~ 18 not possible to say that all the employees were subjected to duress. Accordingly, I

am satisfied that sub-paragraphs (1) and (ii) of section 45D(3}(»b)

of the Trade Practices Act 1974 are applicable. It remains to

determine whether the dominant purpose for which the conduct is engaged in is substantially related to one of the matters referred to in sub-paragraphs (iii) or (iv). In this respect,

No suggestion has been put to me that the Respondents,

in imposing the ban, were motivated by any other reason than the desire to prevent the Applicant from operating its abattoir under a contract system and to require it to accept an award with conditions for the employees which would satisfy the Respondents. In other words, it was not contended that the Respondents were acting capriciously. The submission was put to me that these considerations amounted to a general or ultimate purpose, and that the dominant purpose of the imposition of the ban by the Respondents was the shutting down of the Applicant's business. 14 was also suggested that the dominant purpose of the employees was to avoid the unpleasant consequences with which they had allegedly been threatened. The reasoning behind these submissions was that

which found favour with Smithers dG. in Uribass bEty. Led. v Swali-y

(1979) 38 P.L.R. 92 al pages 102-105. In that passage, His Honozur distinguished betwean Waa motivation of the conduct and its

"It appears to me that in the context of s. 45D the concept of the purpose for which the actual conduct was engaged in does not extend beyond the achievement of the goal which that conduct was capable of achieving. In relation to the conduct which prevented supplies of meat reaching the plaintiff that particular conduct could achieve nothing more than the cessation of Saturday morning trading in fresh meat by the plaintiff. That was the dominant purpose of the actual conduct. The wider and ultimate purpose of maintaining the work-free Saturday morning was the goal which it was hoped and intended would be promoted by achieving the purpose for which the actual conduct was engaged in."

With the greatest respect, I feel compelled to differ from the

reasoning of Smithers J. in that case. The application of that

reasoning would be such as to render sub-section (2) sf section *

45D nugatory in most, if not all cases. In any case falling within sub-section (1) or sub-section (1A) of section 45D, there must be a purpose of a kind described in those sub-sections. If this purpose, because of 1ts proximate relationship to che conduct prescribed, is always to be regarded as the dominant purpose, there is no room for the operation of the defence set up by sub-section (3)(b). In my view, the legislature has intended to exclude from the operation of section 45D conduct which is genuinely engaged in in pursuit of improvements ii tne rerms and conditions of employment. In a case such as this, where the employees engage in what amounts to a strike, an the instigation of their own union and its officers who are pursuing & concessions from the empsoyer as to the terms end conwt iain ci employment of wne employees, the section 15 not inkewjed wo appl: - The Parlianent did not intend to create a peovistcn which could "1. 2,elied upon to support "anti-strine injunctions". The use of "he

words "substantially related to" supports this constructicn.

There seems to be little doubt that, at the trial of their proceeding, the Respondents will be able to establish that their avowed object in imposing the ban on the Applicant was to secure award conditions for the Applicant's employees. In my view, acting upon the construction of sub-section (3)(b) which I regard as the proper one, this was the dominant purpose of the conduct engaged in by the Respondents. Parties acting in concert

may, of course, have different purposes. Even accepting that the

employees may have had the purpose of avoiding unpleasant

conscquences to themselves, it will still be necessary for the court to determine at the hearing of the proceeding what was the dominant purpose of the conduct engaged in in concert. In my view, it is: likely that the Respondents will be able to establish

Mr. Barker relied upon Ascot Cartage Contractors. Ply.

Ltd. v Transport Workers Union of Australia (1978) 32 F.L.R. 148

and Barneys Blu-crete Pty. Ltd. v Australian Workers' Union (i979)

43 F.L.R. 463 an support of his argument that no defence under sub~section (3) was available. It is sufficient for me to distinguish these cases by polishing out that neither of then involved induiscrial achion by erployees of the particular company against which the bens coacerned were directed. In those circumetances, the application cf sud-section (3) is much were

difficult. keliance was also placed upon a passage in "hs

judgment of Lowen C.J. 18 Ausfield Pty. Ltd. v Leyand Motor

Corporation of Australia Ltd. (No. 2) (1977) 14 A.L.R. 457 ax page

Burwood Cinema Ltd. v Australian Theatrical and Amusement Employees'

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (258 paragraphs)

Parties