imposition of the bans - Dominant purpose for which conduct is

engaged in -- Exercise of discretion - Mandatory order.

PRACTICE AND PROCEDURE - Return of subpoenas - Objection to production of documents on ground of self-incrimination -

Subpoena addressed to officer of body corporate - Availability

of this ground in relation to uncrimination of the body

corporate - Possibility of prosecution of officer for criminal conspiracy - Whether offence of criminal conspiracy extends to

agreements to perform acts not themselves criminal.

Trade Practices Act 1974, ss. 45D, 76, 78, 80. Conciliation and Arbitration Act 1904, ss.4, 33, 119.

CONCRETE CONSTRUCTIONS PTY. LIMITED & ANOR v THE PLUMBERS AND

NSW G.54 of 1987 SABEMO PTY LIMITED v THE PLUMBERS AND GASFITTERS EMPLOYEES '

LEIGHTON CONTRACTORS PTY LIMITED v THE PLUMBERS AND GASFITTERS

NSW G.57 of 1987 CIVIL & CIVIC PTY LIMITED v_ THE PLUMBERS AND GASFITTERS

NSW G.58 of 1987 WHITE INDUSTRIES LIMITED v THE PLUMBERS AND GASFITTERS EMPLOYEES' UNION OF AUSTRLIA & ANOR

NSW G.59 of 1987 JENNINGS CONSTRUCTION LIMITED v THE PLUMBERS AND GASFITTERS EMPLOYEES' UNION OF AUSTRALIA & ANOR

NSW G.60 of 1987 BARCLAY BROS PTY LIMITED v THE PLUMBERS AND GASFITTERS EMPLOYEES' UNION OF AUSTRALIA & ANOR

NSW G.64 of 1987 JOHN HOLLAND CONSTRUCTIONS PTY LIMITED v THE PLUMBER GASFITTERS EMPLOYEES' UNION OF AUSTRALIA & ANOR hen

The first respondent, its servants and agents, and the second respondent be restrained, pending further order of the Court, from maintaining, giving effect to or enforcing any ban hitherto imposed on the provision of goods or services by Matthew Hall Pty Limited, Wormald International (Australia) Pty Limited or Nisbet & Durney (Contracting) Pty Limited to or for the building being constructed by the applicant known as Grosvenor Place, at corner George

agents, and the second respondent be restrained from:

(a) aiding, abetting, counselling or procuring any person or persons to engage

(b) inducing or attempting to induce a person or persons, whether by threat, promises or otherwise, to engage in the aforesaid

(c) being in any way, either directly or indirectly, knowingly concerned or party to an agreement to carry out the

Exhibit D be returned to the Industrial Registrar of

The principal proceedings be listed for directions at

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. See also Order 37 rule 2(3).

Hastie (NSW) Pty Limited to or for the building being constructed by the applicant at 473 Victor1a Avenue,

agents, and the second respondent be restrained From:

(a) aiding, abetting, counselling or procuring any person or persons to engage

(b) inducing or attempting to induce a person or persons, whether by threat, promises or otherwise, to engage in the aforesaid

(c) being in any way, either directly or indirectly, knowingly concerned or party to an agreement to carry out the

(d) conspiring with any other person or persons to engage in the aforesaid

The first respondent cause to be delivered by 12.00 noon on Tuesday, 17 March, 1987 a letter addressed to each of the companies named in order (1) hereof informing each of those companies that the first

) ) NEW SOUTH WALES DISTRICT REGISTRY ) No. NSW G.55 of 1987 ) )

AND: THE PLUMBERS AND GASFITTERS EMPLOYEES' UNION OF AUSTRALIA

Upon the applicant giving to the Court the usual undertaking

l. The first respondent, its servants and agents, and the second respondent be restrained, pending further order of the Court, from maintaining, giving effect to or enforcing any ban hitherto imposed on the provision of goods or services by Nisbet & Durney (Contracting) Pty Limited, Impact Air Pty Limited or

) ) NEW SOUTH WALES DISTRICT REGISTRY ) NSW No. G.51 of 1987 ) )

AND: THE PLUMBERS AND GASFITTERS EMPLOYEES' UNION OF AUSTRALIA

Upon the applicants giving to the Court the usual undertaking

The first respondent, its servants and agents, and the second respondent be restrained, pending further order of the Court, from maintaining, giving effect to or enforcing any ban hitherto imposed on the provision of goods or services by Matthew Hall Pty Limited, Wormald International (Australia) Pty Limited or Nisbet & Durney (Contracting) Pty Limited to or for the building being constructed by the applicant known as Grosvenor Place, at corner George

agents, and the second respondent be restrained from:

(a) aiding, abetting, counselling or procuring any person or persons to engage

(b) inducing or attempting to induce a person or persons, whether by threat, promises or otherwise, to engage in the aforesaid

(c) being in any way, either directly or indirectly, knowingly concerned or party to an agreement to carry out the

(d) conspiring with any other person or persons to engage in the aforesaid

The first respondent cause to be delivered by 12.00 noon on Tuesday, 17 March, 1987 a letter addressed to each of the companies named in order (1) hereof informing each of those companies that the first respondent has now lifted, and will not in future seek to maintain, give effect to or enforce, any bans imposed before 13 March 1987 on the provision of

goods or services by the addressee of that letter to

Exhibits CCl, CC2 and CC3 be handed out to the solicitors for the applicants upon their undertaking

Exhibits CC4 and O be handed out to the solicitors for the respondents upon their undertaking to return

Exhibit D be returned to the Industrial Registrar of

The principal proceedings be listed for directions at 9.30 a.m. on Thursday, 26 March, 1987.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. See also Order 37 rule 2(3).

) ) NEW SOUTH WALES DISTRICT REGISTRY ) No. NSW G.54 of 1987 ) )

AND: THE PLUMBERS AND GASFITTERS EMPLOYEES ' UNION OF AUSTRALIA

Uon the applicant giving to the Court the usual undertaking as

The first respondent, its servants and agents, and the second respondent be restrained, pending further order of the Court, from maintaining, giving effect to or enforcing any ban hitherto imposed on the provision of goods or services by Matthew Hall Mechanical and #lectrical Engineering (Ptv)

Limited, J M Hargreaves & Son Pty Limited or Bernard

Hastie (NSW) Pty Limited to or for the building being constructed by the applicant at 473 Victoria Avenue,

agents, and the second respondent be restrained from:

(a) aiding, abetting, counselling or procuring any person or persons to engage

(b) inducing or attempting to induce a person or persons, whether by threat, promises or otherwise, to engage in the aforesaid

(c) being in any way, either directly or indirectly, knowingly concerned or party to an agreement to carry out the

(d) conspiring with any other person or persons to engage in the aforesaid

The first respondent cause to be delivered by 12.00 noon on Tuesday, 17 March, 1987 a letter addressed to each of the companies named in order (1) hereof informing each of those companies that the first

seek to maintain, give effect to or enforce, any bans imposed before 13 March 1987 on the provision of

goods or services by the addressee of that letter or

Exhibits Sl and S2 be handed out to the solicitors for the applicant upon their undertaking to return

The principal proceedings be listed for directions at

Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. See also Order 37 rule 2(3).

) ) NEW SOUTH WALES DISTRICT REGISTRY ) No. NSW G.55 of 1987 ) )

AND: THE PLUMBERS AND GASFITTERS EMPLOYEES ' UNION OF AUSTRALIA

Upon the applicant giving to the Court the usual undertaking

1. The first respondent, its servants and agents, and the second respondent be restrained, pending further order of the Court, from maintaining, giving effect to or enforcing any ban hitherto imposed on the provision of goods or services by Nisbet & Durney (Contracting) Pty Limited, Impact Air Pty Limited or

The first respondent, its servants and agents, and the second respondent be restrained, pending further order of the Court, from maintaining, giving effect to or enforcing any ban hitherto imposed on the provision of goods or services by Crawford and Samuel Pty Limited, Impact Air Pty Limited or Tyao Pty Limited to or for the building being constructed by

The first respondent, its servants and agents, and the second respondent be restrained, pending further order of the Court, from maintaining, giving effect to or enforcing any ban hitherto imposed on the provision of goods or services by Matthew Hall Mechanical and Electrical Engineering (Pty) Limited, Wormald International (Australia) Pty Limited or J M Hargreaves & Son Pty Limited to or for the building being constructed by the applicant at corner Barrack

The first respondent, its servants and agents, and the second respondent be restrained, pending further order of the Court, from maintaining, giving effect to or enforcing any ban hitherto imposed on the provision of goods or services by Bruce & Sowter Pty Limited or O'Donnel Griffin (a division of ANI

Corporation) to or for the building being constructed

agents, and the second respondent be restrained From:

(a) aiding, abetting, counselling or procuring any person or persons to engage in any of the conduct referred to in

(b) inducing or attempting to induce a person or persons, whether by threat, promises or otherwise, to engage in any of the

(c) being 1n any way, either directly or indirectly, knowingly concerned or party

(d) conspiring with any other person or persons to engage in any of the aforesaid

The first respondent cause to be delivered by 12.00 noon on Tuesday, 17 March, 1987 a letter addressed to each of the companies named in orders (1), (2), (3) and (4) hereof informing each of those companies that

the first respondent has now lifted, and will not in

future seek to maintain, give effect to or enforce, any bans imposed before 13 March 1987 on the provision of goods or services by the addressee of

that letter to or for the building referred to in the

Exhibits Ll, L2, L3, L4, L5, L6, L7 and L8 be handed out to the solicitors for the applicant upon their

The principal proceedings be listed for directions at

Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. See also Order 37 rule 2(3).

NEW SOUTH WALES DISTRICT REGISTRY No. NSW G.57 of 1987

AND: THE PLUMBERS AND GASFITTERS EMPLOYEES' UNION OF AUSTRALIA

Upon the applicant giving to the Court the usual undertaking

1. The first respondent, its servants and agents, and the second, third and fourth respondents and each of

Court, from maintaining, giving effect to or enforcing any ban hitherto imposed on the provision of goods or services by Wormald International (Australia) Pty Limited, Brown & Moodie Pty Limited or Randwick Plumbing Pty Limited to or for the building being constructed by the applicant known as

The first respondent, its servants and agents, and the second, third and fourth respondents and each of them be restrained, pending further order of the Court, from maintaining, giving effect to or enforcing any ban hitherto imposed on the provision of goods or services by Environ Mechanical Services Pty Limited, Impact Air Pty Limited or Crawford and Samuel Pty Limited to or for the building being constructed by the applicant known as the Zenith

The first respondent, its servants and agents, and the second, third and fourth respondents and each of them be restrained, pending further order of the Court, from maintaining, giving effect to or enforcing any ban hitherto imposed on the provision of goods or services by Nisbet & Durney (Contracting) Pty Limited, Thos. Clark & Son Pty Limited or Guardian Fire Protection Company to or for the building being constructed by the applicant known as

The first respondent, its servants and agents, and the second, third and fourth respondents and each of them be restrained, pending further order of the Court, from maintaining, giving effect to or enforcing any ban hitherto imposed on the provision of goods or services by John R Keith Pty Limited or Environ Mechanical Services Pty Limited to or for the building being constructed by the applicant known as

agents, and the second, third and fourth respondents

(a) aiding, abetting, counselling or procuring any person or persons to engage in any of the conduct referred to in

(b) unducing or attempting to induce a person or persons, whether by threat, promises or otherwise, to engage in any of the

(c) being in any way, either directly or indirectly, knowingly concerned or party to an agreement to carry out any of the

(d) conspiring with any other person or persons to engage in any of the aforesaid

The first respondent cause to be delivered by 12.00 noon on Tuesday, 17 March, 1987 a letter addressed to each of the companies named in orders (1), (2), (3) and (4) hereof informing each of those companies that the first respondent has now lifted, and will not in future seek to maintain, give effect to or enforce, any bans imposed before 13 March 1987 on the provision of goods or services by the addressee of

that letter to or for the building referred to in the

Exhibits Cl, C2, C3 and C4 be handed out to the solicitors for the applicant upon their undertaking

The principal proceedings be listed for directions at

Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. See also Order 37 rule 2(3).

THE PLUMBERS AND GASFITTERS EMPLOYEES ' UNION OF AUSTRALIA

Upon the applicant giving to the Court the usual undertaking

1. The first respondent, its servants and agents, and

the second respondent be restrained, pending further

order of the Court, from maintaining, giving effect

Contracting Pty Limited, Matthew Hall Mechanical and

Electrical Engineers Pty Limited or Nisbet & Durney

Pty Limited to or for the building being constructed

agents, and the second respondent be restrained from:

(a) aiding, abetting, counselling or procuring any person or persons to engage

(b) inducing or attempting to induce a person or persons, whether by threat, promises

(b) being in any way, either directly or indirectly, knowingly concerned or party to an agreement to carry out the

(d) conspiring with any other person or persons to engage in the aforesaid

The first respondent cause to be delivered by 12.00 noon on Tuesday, 17 March, 1987 a letter addressed to each of the companies named in order (1) hereof informing each of those companies that the first respondent has now lifted, and will not in future

seek to maintain, give effect to or enforce, any bans

goods or services by the addressee of that letter or

applicant upon their undertaking to return the same

The principal proceedings be listed for directions at

Settlement and entry of orders 1s dealt with in Order 36 of the Federal Court Rules. See also Order 37 rule 2(3).

) ) NEW SOUTH WALES DISTRICT REGISTRY ) No. NSW G.59 of 1987 ) )

AND: THE PLUMBERS AND GASFITTERS EMPLOYEES' UNION OF AUSTRALIA

Upon the applicant giving to the Court the usual undertaking

l. The first respondent, its servants and agents, and the second respondent be restrained, pending further order of the Court, from maintaining, giving effect to or enforcing any ban hitherto imposed on the provision of goods or services by Wormald International (Australia) Pty Limited or Absolir Pty Limited to or for the building being constructed by

2. The first respondent by itself, its servants and

agents, and the second respondent be restrained from:

(a) aiding, abetting, counselling or procucing any person or persons to engage

(b) inducing or attempting to induce a person or persons, whether by threat, promises

(c) being in any way, either directly or indirectly, knowingly concerned or party to an agreement to carry out the

(d) conspiring with any other person or persons to engage in the aforesaid

3. The first respondent cause to be delivered by 12.00 noon on Tuesday, 17 March, 1987 a letter addressed to each of the companies named in order (1) hereof informing each of those companies that the first respondent has now lifted, and will not in future seek to maintain, give effect to or enforce, any bans

goods or services by the addressee of that letter to

Exhibits Jl, J2 and J3 be handed out to the solicitors for the applicant upon their undertaking

The principal proceedings be listed for directions at

Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. See also Order 37 rule 2(3).

) ) NEW SOUTH WALES DISTRICT REGISTRY ) No. NSW G.60 of 1987 ) )

AND: THE PLUMBERS AND GASFITTERS EMPLOYEES ' UNION OF AUSTRALIA

Upon the applicant giving to the Court the usual undertaking

l. The first respondent, its servants and agents, and the second respondent be restrained, pending further order of the Court, from maintaining, giving effect to or enforcing any ban hitherto imposed on the provision of goods or services by John R Keith Pty Limited or Tyao Pty Limited to or for the building being constructed by the applicant at 1 Pacific

agents, and the second respondent be restrained from:

(a) aiding, abetting, counselling or procuring any person or persons to engage

(b) inducing or attempting to induce a person or persons, whether by threat, promises

(c) being in any way, either directly or indirectly, knowingly concerned or party to an agreement to carry out the

(d) conspiring with any other person or persons to engage in the aforesaid

The first respondent cause to be delivered by 12.00 noon on Tuesday, 17 March, 1987 a letter addressed to each of the companies named in order (1) hereof informing each of those companies that the first respondent has now lifted, and will not in future seek to maintain, give effect to or enforce, any bans imposed before 13 March 1987 on the provision of goods or services by the addressee of that letter to

Exhibits BBl, BB2 and BB3 be handed out to the solicitors for the applicant upon their undertaking

The principal proceedings be listed for directions at

Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. See also Order 37 rule 2(3).

) ) . NEW SOUTH WALES DISTRICT REGISTRY ) No. NSW G.64 of 1987 ) )

Upon the applicant giving to the Court the usual undertaking

1. The first respondent, its servants and agents, and the second respondent be restrained, pending further order of the Court, from maintaining, giving effect to or enforcing any ban hitherto imposed on the provision of goods or services by G J Melis Pty

Limited or Wildridge & Sinclair Pty Limited to or for the building being constructed by the applicant at 33

agents, and the second respondent be restrained from:

(a) aiding, abetting, counselling or procuring any person or persons to engage

(b) inducing or attempting to induce a person or persons, whether by threat, promises or otherwise, to engage in the aforesaid

(c) being in any way, either directly or indirectly, knowingly concerned or party to an agreement to carry out the

(d) conspiring with any other person or persons to engage in the aforesaid

The first respondent cause to be delivered by 12.00

noon on Tuesday, 17 March, 1987 a letter addressed to each of the companies named in order (1) hereof

seek to maintain, give effect to or enforce, any bans imposed before 13 March 1987 on the provision of

goods or services by the addressee of that letter to

Exhibits JH1, JH2 and JH 3 be handed out to the solicitors for the applicant upon their undertaking

The principal proceedings be listed for directions at

Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. See also Order 37 rule 2(3).

AND: THE PLUMBERS AND GASFITTERS EMPLOYEES' UNION OF AUSTRALIA

AND: THE PLUMBERS AND GASFITTERS EMPLOYEES' UNION OF AUSTRALIA

THE PLUMBERS AND GASFITTERS EMPLOYEES! UNION OF AUSTRALIA

THE PLUMBERS AND GASFITTERS EMPLOYEES' UNION OF AUSTRALIA

AND: THE PLUMBERS AND GASFITTERS EMPLOYEES ' UNION OF AUSTRALIA

AND: THE PLUMBERS AND GASFITTERS EMPLOYEES! UNION OF AUSTRALIA

Applications have been made for interlocutory injunctions in eight separate proceedings, involving a total of nine applicants. The eight applications have been heard together, all evidence being treated as admissible in respect

of all applications to the extent of its relevance.

In each proceeding reliance is placed upon s.45D of

the Trade Practices Act 1974, together with certain common law

causes of action. Although each case must be examined separately there are features common to all. In one matter there are two applicants, Concrete Constructions Pty Limited and Concrete Constructions (NSW) Pty Limited. The former company is the holding company of the latter company, a trading company which carries on business as a building contractor. The holding company has been added as an applicant in an attempt to bring the case within sub-s.(1A) of s.45D; of which more later. Apart from this holding company, all of the applicants are building contractors presently engaged in the construction of multi-storey buildings within the metropolitan area of Sydney: Sabemo Pty Limited, Leighton Contractors Pty Limited, Civil & Civic Pty Limited, White Industries Limited, Jennings Construction Limited, Barclay Bros Pty Limited and John Holland Constructions Pty Limited. In each case the contractor has engaged sub-contractors to install specialised services -- such as domestic plumbing, air conditioning and fire protection systems -- the installation of which requires the labour of qualified plumbers. For simplicity I will use the term "plumbing sub-contractor" to include all of these sub-contractors. Plumbers, being members of the Plumbers and Gasfitters Employees' Union of Australia ("the PGEU"), have been engaged by each of the plumbing sub-contractors -- not by any of the applicant head contractors -- to carry out the work required by their

The PGEU, the first respondent in each of these proceedings, is an organization of employees registered under

On 19 June 1986 the Federal Executive of the PGEU adopted a report from the General Secretary of the organization proposing the preparation and service upon employers in the building construction industry of a log of claims. The evidence does not disclose when the log of claims was formulated but it was apparently in existence by 23 July 1986 when the Federal Executive resolved "to embark on a national campaign in the Building and Construction Industry for improvements to wages, conditions, hours and other terms of employment". In relation to the organization of the

"3. That stop-work-meetings of all members be held in each State within three weeks to allow the members the opportunity to consider a report and endorse the Federal Executive recommendation.

4. That a 'Log of Claims' be presented to these stop-work-meetings for adoption by the rank-and-file membership of the Union.

5. That the campaign be organised on the principle of guerilla tactics. This means imposing maximum pressure on the employers with the minimum possible effects on the membership.

6. That the Federal Executive monitor the campaign in the Building and Construction Industry and the Federal President and General Secretary are authorised to call a Special Executive Meeting 1f considered necessary."

Stop work meetings of PGEU members were held on 7 August 1986 in Newcastle and Wollongong and on 8 August 1986 in Sydney. According to information supplied to Miss Inaam Tabbaa, Executive Officer - Industrial Relations of the Master Builders Association of New South Wales, similar meetings were held in other places in Australia at about the same time. With one exception, each meeting voted to support the Federal

In the light of the decisions taken at these meetings the Federal Executive decided to proceed with the campaign, At a meeting held on 18 August 1986 it resolved as follows:

"(a) The campaign be co-ordinated centrally and comrades Rutherford and Davis be authorised to maintain a central record of the bans imposed by the Union throughout the course of the dispute.

(b) That Head Office prepare material on developments in the campaign for distribution to both the PGEU membership, other Unions and the general community (1e: preparation of leaflets, posters, stickers etc).

(c) That special attention be given by the Branches to building trade union and broad community support for the policies and positions of the PGEU.

(d) That the General Secretary is authorised to initiate negotiations on the Union's log of claims with the M.P.A., M.B.A. or any other employer organisation considered relevant.

(e) That in the initial stages of the campaign negotiations be held with the major national developers in the building industry with a view to reaching agreement on the Union's log of claims as soon as possible; i.e. Herscu, Lend Lease, Westfields, Gandel Group, Multiplex.

(£) That all Branches be kept informed of developments in the campaign nationally

membership on progress with the dispute. (g) That in addition to serving the Log of

(h) That a list of national plumbing employers be prepared to allow the Union to serve them with the Log of Claims ona priority basis.

(i) That each State Branch is authorised to impose bans on developers. Builders and Plumbing Employers that operate ina particular State only, is (sic) support of the Unions (sic) 'Log of Claims' and the outcome of negotiations with these

employers be reported to the Head Office co-ordinators."

Miss Tabbaa deposes that she has been informed by various members of the Master Builders Association of New South Wales and by members of three sub-contractors' associations, the Master Plumbers and Mechanical Contractors Association of New South Wales, the Fire Sprinklers & Pipe Fitters Association and the Airconditioning and Mechanical Contractors Association that, commencing on about 19 August 1986, the PGEU served copies of a log of claims upon members

of those four associations. The log of claims dealt with four

matters: wages, superannuation, working hours and award conditions. On 25 August 1986 Mr A H Mussert, Secretary of the Plumbing Employers Industrial Secretariat -- an association which represents the master plumbers of Victoria, New South Wales, Tasmania and South Australia and the Airconditioning and Mechanical Contractors Associations of those same four States ~- wrote to Mr G R Crawford, General Secretary of the PGEU, rejecting the log of claims. Mr Mussert expressed the opinion that the claims were in breach of the Principles of Wage Indexation laid down by the Australian Conciliation and Arbitration Commission and that they were contrary to the Prices and Incomes Accord entered into between the Federal Government and the Australian Council of Trade Unions ("ACTU"). The letter went on:

you to present those claims to the Commission for 1ts consideration.

In the circumstances we request that you discontinue those bans and limitations which you have imposed in support of your claims and, in the interests of the Industry and your members, withdraw the Log of Claims."

Upon various dates, commencing in the last week of August 1986, work bans were imposed at jobs being undertaken by the present applicants. The detail of the imposition of the bans assumes some importance in the submissions made to me and I will return to it. In particular, having regard to submissions made about the applicability to these cases of the defence provided by s.45D(3) of the Trade Practices Act, it

will be necessary to examine the question whether any person

other than the PGEU, its officers, and employees of the particular sub-contractor acted in concert in the imposition of bans upon work to be performed by that sub-contractor. For present purposes it is enough to refer to the general pattern of operations. The bans did not immediately halt the work on any project. They did not even halt the work of any plumbing sub-contractor on a particular project. In each case the bans were imposed only upon selected items of work. For the moment the sub-contractor was able to keep working, although perhaps with some difficulty, and it therefore continued to need the services of its plumber employees. But the bans were such that, as time went on, they must become more troublesome. The work which could be performed in advance of the banned items would be completed. Eventually the effect of the ban would be to bring to a standstill the operations of the sub-contractor. Moreover, the bans would increasingly affect the work of other trades on the project, preventing the completion of the

The proceedings in the Conciliation and Arbitration Commission

As might be expected, the imposition of bans led to proceedings in the Conciliation and Arbitration Commission. It 1s not necessary to set out all of the detail. But I should outline the history of those proceedings, for two reasons. Firstly, those proceedings throw some light upon the nature of the bans. Secondly, the relief sought by the present applicants 1s discretionary relief. Taking the view, as I do, that the bans have been imposed in support of genuine

industrial claims -~- whether or not they be justifiable -- it

appears to me to be relevant to the exercise of that discretion to consider whether there is any prospect of the

underlying dispute being resolved in the Commission.

On 2 September 1986 Ludeke J, on the application of the Fire Sprinkler Contractors' Association, directed the PGEU to lift all bans and limitations imposed in support of its log of claims. On the same day that Association applied to the Commission for the insertion in the Sprinkler Pipe Fitters' Award of a clause prohibiting the PGEU, its officers and members, being a party to, or concerned in, conduct that, amongst other things, hindered, prevented or discouraged the performance of work in accordance with the award. That application came before Ludeke J on 8 September 1986 when counsel for the applicant association tendered a schedule setting out bans, limitations and restrictions said to have been imposed by members of the PGEU. The schedule included three of the bans the subject of complaint in these proceedings. The accuracy of the schedule was not challenged. Indeed the industrial officer representing the PGEU said that he did not contend that the bans were not in effect. The

On 22 September 1986 three applications, to vary in similar manner certain other awards, were made to the Commission on behalf of various employers. Those applications were heard and granted by Deputy President Riordan on 25

Three employer groups, the Master Builders Associations of New South Wales and of Victoria and the Fire Sprinkler Contractors' Association, made applications on 16 October 1986 for certificates under s.33(5) of the

Conciliation and Arbitration Act. Section 33 applies to cases

in which, by the terms of an award, conduct that would hinder, prevent or discourage ~- among other things -- the performance of work in accordance with the award is prohibited. The section provides for an inquiry by a Presidential Member of the Commission into any complaint of breach of such a term. Section 33(7) empowers a Presidential Member, where the conduct is still continuing notwithstanding that the Presidential Member has taken all steps that appear to him to be appropriate for bringing about its early cessation, to make and file a record to that effect. The significance of that step is that thereafter proceedings for a penalty may be taken

The applications under s.33 were before Deputy President Riordan on a number of occasions. It was said on behalf of the applicants to those proceedings, without dispute by the representatives of the PGEU, that there were approximately 44 sites affected by bans on work falling within the Sprinkler Pipe Fitters Award, Australia-wide, and a total of 48 sites -- 22 in New South Wales -- affected by bans on work under plumbers' awards. At one stage, on 7 November 1986, the proceedings were adjourned to allow the Federal Executive of the PGEU, which was then meeting, to consider the position. Upon resumption, the union representative announced

that the Executive "has resolved to continue its campaign".

That announcement was in accordance with the minutes of the Federal Executive, which are in evidence. The minutes of the meeting of 7 November record that, having considered the outcome of the ACTU Special Unions Conference held the previous day and the dispute concerning the PGEU log of

"(a) Continue the National Campaign in support of general improvements to members wages and conditions.

(b) That bans imposed in support of the campaign be progressively extended, to

Some of the employer associations decided to raise the stakes. On 10 December 1986 the Master Builders Association of New South Wales, the Master Plumbers' Association, the Mechanical Contractors Association of New South Wales, the Air Conditioning and Mechanical Contractors Association of New South Wales and the Fire Sprinklers Contractors Association of Australia wrote to the Secretary of the New South Wales branch stating that, as at that date, "our records indicate that your union has placed bans on the following projects:". There followed a list of 25 projects; including 12 out of the 14 projects which are the subject of the present application. The letter went on:

"These bans have been imposed for either of 2 reasons:

In support of your union's campaign

for reduced working hours, overaward payments, etc.;

In retaliation against the reduction

in wages paid to PGEU members.

We formally advise you that unless your union has produced evidence to us by 12.00 noon on Thursday, llth December, 1986 that you have advised the Australian Conciliation & Arbitration Commission that all bans on all of the above projects have been lifted, employers on the above projects will exercise their rights under the suspension clause of the various Awards.

Any further projects affected since this list was compiled will be subject to the same conditions as outlined in this letter.

Suspensions will remain in force until such time as your union has formally and unconditionally lifted all bans on all the above sites."

There is no evidence of any response to that letter.

A document was subsequently prepared, apparently by one or more of the employer associations which signed the letter of 10 December. The document was headed "Message to Members of the PGEU". The document read in part:

"At midday yesterday, Wednesday 10th December, 1986, your Union was put on notice that if it did not advise the Arbitration Commission by noon today that it had lifted all bans, Employers would implement the Suspension Without Pay clause in the Awards.

You will be instructed to carry out work in areas that you have banned and should you refuse to carry out such work, you will be immediately placed on suspension. Any members of the P.G.E.U who are suspended will not be able to resume work until ali bans imposed in N.S.W. by your union, in this current campaign, are lifted.

If you work as directed you will not be suspended. We remind you, however, that once you are suspended for refusal to carry out normal work, it will not be your decision but that of the P.G.E.U. and the union membership as a whole, that will decide on your resumption due to the proviso that all bans must be lifted."

The evidence, details of which will be set out in due course, shows that most of the sub-contractors engaged by each of the present applicants handed a copy of this document to each of their plumber employees and, after giving to them a chance to read the document, instructed them to carry out work which they understood to be banned by the PGEU. Upon each of

those employees refusing this instruction, each was suspended.

During the course of the proceedings before Deputy President Riordan announcements were made from time to time on behalf of PGEU members in various parts of Australia that all bans and limitations in those parts had been lifted. As I follow the record of proceedings 1n the Commission, by mid-December 1986 bans and limitations had been disclaimed in Queensland, Tasmania, South Australia and the Northern Territory. However, there was no disclaimer in relation to New South Wales -- other than in certain regional centres -- Victoria, Western Australia or the Australian Capital

On 17 December 1985 there was a further lengthy hearing during which the representative of the PGEU informed the Commission that recently -- apparently during the preceding few days -- there had been "two large meetings of job delegates, in excess of 200 job delegates at those meetings, who carried decisions unanimously to continue their

recommendation". At the conclusion of this hearing Deputy President Riordan announced that he would make and file a

record under s.33(7). It is clear from his detailed reasons,

delivered two days later, that the Deputy President took that

step with reluctance and only because he felt that he had no

"The continued existence of bans and limitations on work has not been denied at any stage of the proceedings. The PGEU has freely and quite openly conceded that 1t has imposed various bans and restrictions on the performance of work in support of its campaign for additional wages and a reduction in hours of work. Although it should be stated that it has not conceded the existence of particular bans.

These claims are clearly outside the current principles of wage fixation and are also inconsistent with the policy of the Australian Council of Trade Unions (ACTU). It is worth noting that the PGEU participated in the conference wnich arrived at the ACTU policy. The necessity for a form of centralised wage fixation with defined principles 1s accepted by all but a tiny minority of Australian trade unions and their members.

The bans and limitations have been in place in varying degrees for several months.

The employers have pressed their previous application for the making of a formal record of finding in respect of the conduct by the PGEU and its members and the issue of a certificate under Section 33 which were deferred on 10 November, 1986 ... so that every conceivable effort could be made by all interested persons to achieve a resolution.

All efforts have failed to achieve a cessation of the conduct in contravention of the relevant clauses in the respective awards. In addition to conceding that its campaign of industrial action persists, the PGEU has clearly indicated its intention to continue this campaign in the future. The PGEU has rejected all suggestions to have its dispute resolved either by this Commission in accordance with current principles or by the Australian Council of Trade Unions on an industry basis. The representatives of the PGEU in the proceedings of 17 December were unable to suggest any other appropriate step that I could take to bring about an early cessation of the various bans and limitations. The union's advocate did suggest that I should

order the employers to confer with the union representatives with all bans and limitations in place but this would be quite inappropriate and most unlikely to achieve any positive result. There are no other steps apparent to me that might be taken to achieve such a cessation.

All efforts have failed to achieve a cessation of the bans and work limitations which are causing difficulties in the building and construction industry. These efforts have included various proceedings before this Commission, and private conferences arising from them, and a conference between the PGEU, the ACTU and the employers arranged by the Minister for Employment and Industrial Relations. All suggestions have been rejected by the PGEU.

As there are no grounds to believe that the present campaign will cease except by the employers conceding the claims which would be contrary to current principles of wage fixation, as well as the policy of the Australian trade union movement, there is no other course properly available to me other than to issue the certificate for which the employers have been applying for a considerable time.

In these circumstances I propose to make a record that the PGEU and its members are engaged in conduct in contravention of the relevant clauses in the respective awards and that I have taken all steps which are appropriate to achieve a cessation. The Industrial Registrar will be advised accordingly."

with his attempts to resolve the matter. On 20 January 1987

he presided at a private conference of the affected parties when he presented to them a six point recommendation. The

"1. Removal of all bans and limitations on the performance of work by P.G.E.U.

2, The lifting of all suspensions and stand downs and the reinstatement for members

of P.G.E.U. of all rights, benefits and privileges affected.

to the A.C.T.U. for processing as part of claims by all building unions pursuant to the projected new principles of wage fixation.

(b) the adjustment flowing from the current National Wage Case

5. Employers to undertake not to pursue any prosecution and the P.G.E.U. not to reimpose bans for the time being.

6. This conference to stand adjourned for one month during which time the proposed conferences under the auspices of the A.C.T.U. to occur with report back to this Commission."

The PGEU Federal Executive considered that recommendation at a meeting held on 29 January 1987 but resolved to reject it. On the following day, 30 January, Deputy President Riordan presided over a private compulsory conference called by him and attended by all members of the Federal Executive and by representatives of all relevant employer groups. No agreement was reached at that conference. There are not at the present time any proceedings before the

Commission which might be expected to resolve the dispute.

The bans affecting the applicants: Concrete Constructions

Concrete Constructions Pty Limited, the first applicant in matter G.51 of 1987, is the sole shareholder in Concrete Constructions (NSW) Pty Limited, the second applicant in that matter. The former company has subsidiaries in all States and Territories in Australia and it derives its income from their trading activities. At the present time building work is being undertaken by subsidiaries in New South Wales, Queensland, Victoria, Western Australia and the Australian Capital Territory. One of those projects is the construction by Concrete Constructions (NSW) on behalf of Grosvenor Place Pty Limited of a multi-level office building at the corner of George and Grosvenor Streets, Sydney. Concrete Constructions (NSW) has let three plumbing sub-contracts on this job: to Matthew Hall Pty Limited for airconditioning, to Wormald International (Australia) Pty Limited for fire protection services, and to Nisbet & Durney (Contracting) Pty Limited for the installation of domestic plumbing services. Work on the project commenced on 7 May 1984 and, at the present time, it 1S approximately 90% complete as to structure and

Mr Glen Batchelor, the second respondent in matter G.51 of 1987, is the Assistant Secretary of the New South Wales Branch of the PGEU. On 27 August 1986 he handed to Mr F G Ryerson, the Senior Project Manager of Concrete Constructions (NSW), a copy of the log of claims which had

been adopted by the PGEU Federal Executive. At that time he

told Mr Ryerson that "there has been a mass meeting on the site of the members. There is a copy of our log of claims and

Upon that same day Mr Batchelor saw the site representatives of each of Matthew Hall and Wormald. He handed to each of them a copy of a sheet of paper upon which there were listed, under the name of each of the three sub-contractors, several 1tems of work required to be completed by that sub-contractor. Mr Batchelor told each of the representatives that the document was "a list of black bans on the job" and that they had been imposed in support of the log of claims. Mr Batchelor also left a copy of this

It appears that, from 27 August to 11 December 1986, each of the plumbing sub-contractors continued on the job, doing work not included on the list. On 11 December the site representative of each plumbing contractor asked each of his company's plumber employees to work in the banned areas. Each employee refused. Each was then suspended. As a result the work included on the banned list remains undone, preventing each of the sub-contractors from completing its work. Mr Ryerson says that one effect of the bans has been to cause much work to be done out of sequence, resulting in additional expense. He claims that the project is now 43 days behind its critical path and that the stage has now been reached where all plumbing related work 1s essential to enable

the completion of the building. Each day that the bans

continue, he says, will result in the completion date of the building being extended by a day. The cost of extension of

There is also evidence, in the form of an affidavit sworn by Mr P WL White, a director of each of the applicant Concrete Construction companies, of the imposition of bans and work limitations upon two buildings being constructed in Melbourne by the Victorian subsidiary of Concrete Constructions, Lewis Construction Company Pty Limited. In one case the bans are said to have been in force since 27 August 1986, in the other since 9 February 1987. Each of the bans is said to have been imposed by the PGEU but no detail is given as to the method of imposition. In each case it is said that the bans are affecting the completion of their work by various

Sabemo Pty Limited, the applicant in matter G.54 of 1987, is engaged in the construction of a building in Victoria Avenue, Chatswood. The company has retained three plumbing sub-contractors: Matthew Hall Mechanical and Electrical Engineering (Pty) Limited for fire protection systems, J M Hargreaves & Son Pty Limited for domestic plumbing and Bernard Hastie (NSW) Pty Limited for airconditioning and mechanical ventilation. Bernard Hastie has further sub-contracted the

mechanical ventilation work to Brown & Moodie Pty Limited.

On 5 September 1986 Mr Roland Robson, a PGEU organizer who is the second respondent to the Sabemo Application, came to the site. In the presence of the PGEU site delegate he told Mr WL Dolman, the Sabemo site manager, "We're here to let you know we're placing bans on all hydraulic work on this project". Mr Robson then dictated a list of items, which Mr Dolman wrote down. They included items from all three sub-contracts. At the time Mr Robson

informed Mr Dolman that other sites would also have bans.

On 8 October 1986 Mr Dolman was informed by the Hargreaves site foreman of further bans. Over the following few days he had telephone conversations with several people in

the PGEU State office. The detail does not matter. It is apparent from the evidence of those conversations that the details of the banned work on this job were recorded at that

Although the direct evidence relates only to the Hargreaves employees, it appears that on or about 11 December 1986 each of the sub-contractors on this job instructed its employees to carry out banned work and, upon their refusing, suspended their employment. Since that date no plumbing work has been done. Mr Dolman has calculated that his company's losses due to the bans, to 13 February 1987, exceed $1,437,000, He says that losses since that date are running

Having regard to an issue raised in submissions as to the purpose of the bans -- in particular, the party at whom they were aimed -- 1t is desirable to note the terms of a conversation between Mr Dolman and Mr Robson on 5 January 1987. This was the first working day after the Christmas break. Mr Dolman rang to find out the position. During the conversation, Mr Robson said to him: "If your company doesn't make a contribution your job is fucked like the others. If you want to do something about it get Guido to give me a ring". Mr Guido Orsatt1 is the construction director of

Leighton Contractors Pty Limited, the applicant in matter G.55 of 1987, has four jobs affected by bans: 127 Walker Street, North Sydney; 56-70 Phillip Street, Sydney; corner Barrack and York Streets, Sydney; and Telecom Plaza,

At 127 Walker Street there are three plumbing sub-contractors: Nisbet & Durney, domestic plumbing, draining and fire hydrant services; Impact Air Pty Limited, mechanical services; and Crestani Fire Protection Pty Limited, fire sprinklers. On 15 September 1986 Mr Rick Welland, the PGEU site delegate, told Mr B G Greig, the general foreman for Leighton on this job, that "bans are being imposed on work at

this site". He dictated a list of items to Mr Greig.

On that same day, Mr Welland spoke to the Nisbet & Durney project supervisor, Mr T R Beencke. He said to Mr Beencke: "We have just had a meeting on site called by the union organizer, Alex Somerville. There have been bans imposed on the site of which the bu1rlder has been notified". He gave Mr Beencke details of the bans, as they involved his

On 10 December Mr Welland again spoke to Mr Greig. He said that the bans on the site were being increased "because of the likelihood that the plumbers are going to be stood down for not removing their bans". He gave details of the affected items of work. Upon the following day Mr Beencke handed each of the plumbers employed by his company a copy of the employer groups' letter of 10 December and the "Message to Members of the PGEU". He asked them to do banned work. They refused and were suspended. As a result all domestic plumbing on the site was banned. The evidence of Mr W DJ Stinson, the Leighton Project Manager on this job, is that the loss incurred by his company to 9 February 1987 as a result of the plumbing bans is $307,000 and that this loss is increasing at

The situation at 56-70 Phillip Street, Sydney is rather similar. On 3 September 1986 Mr Alex Somerville, who is the second respondent to the Leighton Application, came to the site. He spoke to Mr Terry Smith, the PGEU site delegate. Two days later Mr Somerville told Mr David Cochrane, the Leighton Project Manager on this job, that he had had "a

meeting with the union members on site and the union is

placing bans on the site in support of our log of claims". He gave details of bans affecting the work of all three plumbing sub-contractors on the job. During the next two months Mr Cochrane had conversations with both Mr Smith and Mr Somerville in attempts to procure the removal of the bans but to no avail. Mr Somerville insisted that the bans would not be lifted or moved. On 11 December 1986 Mr T A Crawford of Crawford and Samuel Pty Limited, the domestic plumbing contractor on the job, asked all of his company's employees to undertake banned work. They refused and were suspended. The evidence does not reveal whether the other plumbing sub-contractors took a similar course but Mr Cochrane says that all bans remained in place and that the loss thereby occasioned to Leighton, as at 9 February 1987, was $326,000

The Leighton Project Manager at the building being constructed at corner Barrack and York Streets, Sydney 1s Mr G M Connery. On that job also Leighton has let separate sub-contracts for airconditioning, fire protection systems and hydraulic plumbing. On 4 September 1986 Mr Somerville informed Mr Connery: "We have had a meeting and decided to impose bans in support of the new log of claims". He handed to Mr Connery a sheet of paper containing a list of bans

None of the banned work was performed before 11 December 1986. On that day Mr E C Jackson, the plumbing superviser of the hydraulic plumbing sub-contractor, requested

each of his company's employees to lift the bans. They

refused, one of them explaining that they could not "because it is a union direction that the bans are on". On the same

Once again the evidence does not reveal whether the employees of the other two sub-contractors on this site were suspended on 11 December 1986 but the banned work has not been performed. Mr Connery estimates the cost to Leighton, as at 10 February 1987, at $313,500, increasing by $25,000 per week. In this connection is it interesting to note a conversation between Mr Connery and Mr Somerville on 11 February 1987 during which Mr Connery told Mr Somerville about the extent of losses being suffered by his company, the sub-contractors and the building owner. Mr Somerville replied: "Yes. It's a starve-out. The builders are really bleeding. They can't

Finally, I refer to the Telecom Plaza building. On this job there are two Leighton plumbing sub-contractors, for hydraulic services and for mechanical services. On 4 December Mr Somerville spoke to Mr James Rogers, the Leighton foreman. He told him that he had just held a meeting with the plumbers on the site and informed him of bans which were imposed upon the work of the plumbing sub-contractors. According to Mr Rogers the effect of these bans has been seriously to disrupt the job, although some work is continuing. It does not appear that either of the plumbing sub-contractors has yet suspended

Complaint is made about bans imposed on four different jobs being undertaken by Civil & Civic: the AMP Tower 2, Bondi Junction; the Zenith building, Chatswood; the OTC building, Elizabeth Street, Sydney; and the MBF building,

In relation to the AMP Tower the evidence discloses that there are three plumbing sub-contractors: Wormald for fire protection, Brown & Moodie for airconditioning and Randwick Plumbing Pty Limited for general sanitary plumbing. The building, a 17 storey office development, is complete to rough 1n stage. Service trades are nearing completion on all

floors and finishing trades have commenced their work.

On 29 August 1986 Mr Paul Wakeham, the fourth respondent to the Civil & Civic Application and a New South Wales organizer of the PGEU, went to the site and held a meeting of union members. Thereafter he went to the office of Mr M H Stagg, the Civil & Civic site manager, and handed to him a sheet of paper. The document commenced: "In support of this union's claims for (1) 2.3% CPI rise, (2) 3% super rise, (3) 9% - $70 wage rise, (4) 36 hour week the following bans have been placed on this site". There followed a list of items. The document was signed "Paul Wakeham, Plumbers & Gasfitters Union 211-3800". This is, in fact, the telephone

The bans listed on Mr Wakeham's document were communicated to the various sub-contractors. There was a variation in the bans applicable to the work of Randwick Plumbing on 1 October 1986, the ban on one item being lifted and four new items being substituted. Otherwise, it appears,

On 11 December 1986 the employees of Wormald and of Randwick Plumbing were each suspended, after refusing to work in banned areas. In the case of Brown & Moodie work continues, the banned areas not yet having been reached. The evidence of Mr Stagg is that the imposition of bans and the suspension of plumbing employees on this site has delayed the progress of the building in a number of respects, leading to the likelihood that work on the building will soon have to be

Mr Ron Murphy, the Civil & Civic site manager on the Zenith Centre at Chatswood, was served on 29 August with a copy of the union's log of claims. Service was effected by Mr Donald Campbell, the second respondent to the Civil & Civic Application who appears also to be a PGEU organizer. Three days later Mr Campbell again visited the site. He had a meeting with the plumbers working on the site and then handed Mr Murphy a list of bans, apparently involving the work of all three plumbing sub-contractors on the site. At the time he told Mr Murphy that the bans "are in relation to a log of

On 11 December 1986 further bans were imposed. They are recorded in a document signed by Mr Bill Foot, a representative of the plumbers on the site. These bans were said to be "in response and retaliation to the stand-down notices that are being handed down by the employers". Although there is no direct evidence, I infer from this that one, at least, of the plumbing sub-contractors commenced to suspend men earlier that day. The only direct evidence, that of Mr J A Crawford, managing director of Crawford and Samuel Pty Limited, the plumbing sub-contractor, is that he went to the site after delivery of this document, although on the same day, that he asked his company's employees to lift the bans

Mr Crawford deposes to two subsequent conversations, one with Mr Peter Lane, the Federal President of the PGEU, the other with Mr Glen Batchelor in both of which threats were

There are three plumbing sub-contractors on the OTC site in Elizabeth Street, Sydney. On 2 December 1986 Mr Somerville, who 1s the third respondent to the Civil & Civic Application, spoke to Mr W T Newbury, General Foreman on the project. He told Mr Newbury "we have had meetings" and that some bans had been placed on the site. He itemised them,

They involved the work of all three sub-contractors.

During the days of 11 and 12 December 1986 the site representatives of all three sub-contractors called upon their respective employees to carry out banned work. They each

Civil & Civic has also entered into three plumbing sub-contracts in relation to the MBF site, Bathurst Street, Sydney. Once again, bans were First imposed in December 1986. Mr Somerville came to the site on 5 December and held a meeting with the PGEU members. He then came to the Civil & Civic General Foreman, Mr G P Elkington, and told him of bans affecting the work of all three sub-contractors. Those bans have not yet been lifted and, according to Mr Elkington, they have created difficulties for the builder. No employees have

One White Industries site is referred to in the evidence, at Victoria Cross, North Sydney. The company has engaged three plumbing sub-contractors for the job. About the end of August 1986 Mr Somerville, who is the second respondent to this Application, told Mr M K Livingstone, the site manager of White Industries, that "until the Plumbers union get their nine day fortnight and their $70 a week increase we will be placing the following bans on the site". He gave Mr Livingstone a list of items unvolving two of the three sub-contractors. At that time the airconditioning sub-contractor was not on site but, after it did commence

operations, the list of bans was extended so as to affect it.

imposed and employees of all three sub-contractors were

suspended when they declined to carry out banned work. It

appears that no plumbing work has been carried out on this site since that time. The effect has been substantially to

Jennings Construction is engaged in the erection of an office building at 130 Pitt Street, Sydney. Two plumbing sub-contractors have been retained: Wormald for fire protection services and Absolir Pty Limited For hydraulic and

On 22 October 1986 Mr Somerville, who is the second respondent to the Jennings Application, came to see Mr C G Dickens, the New South Wales Construction Manager of the company. He told Mr Dickens that bans had been imposed on the main water storage tank on the roof of the building and on all

Mr Dickens subsequently asked the Wormald charge hand, a member of the PGEU, to allow certain sprinkler work to be carried out on level 2. He refused. On 11 December 1986 the Wormald employees were asked to carry out banned work and, they having refused, they were suspended. The Absolir employees have not, at this stage, been suspended. There 1s evidence from Mr Dickens that the effect of the bans will be to extend the building time and to add substantially to his

Barclay Bros is constructing an office building at 1 Pacific Highway, North Sydney. It has engaged two plumbing sub-contractors: John R Keith Pty Limited for hydraulic services and Tyao Pty Limited for fire protection services. The building structure is 100% complete and the installation

On 10 September 1986 Mr Somerville, who is also the second respondent to this Application, came to the site and spoke to Mr T M Coyne, the Barclay Project Manager. He informed Mr Coyne that he had just had a meeting with the plumbers on the site and he gave a list of bans, involving both sub-contractors. Between that date and 10 December 1986 the plumbers continued to work on the job, although not on banned items. The employees of John R Keith have not worked since ll December. Although there is no direct evidence, they were apparently suspended on that day. The Tyao employees

Mr Coyne estimates the cost of extension of this job

John Holland Constructions is constructing a building at 33 Railway Crescent, Burwood. Three plumbing sub-contractors have been engaged. On 26 November 1986 Mr

Wakeham, who is the second respondent to this Application,

came to the site and informed Mr P C W Groenewegen, the John Holland Site Manager, of bans on two items of work. The list

During the period 11-12 December 1986 representatives of all three sub-contractors asked their employees to carry

The evidence of Mr GM Dilly, Project Manager for the job, is that the result of the bans has been to cause much work to be completed out of sequence and to delay other trades. Mr Dilly estimates the project to be 40 days behind its critical path. He says that each additional day that the bans continue will extend the completion date by about one and

It is appropriate, before turning to the legal submissions arising out of these Facts, to refer toa procedural matter which loomed large at the hearing. Subpoenas for the production of documents were issued by most of the applicants. Some were addressed to "The Secretary" of the PGEU; others to "The Proper Officer" of that organization. In no case was the subpoena addressed to the

organization itself; the course considered appropriate by

Lord Denning MR in Penn-Texas Corporation v Murat Anstalt [1964] 2 OB 647 at p.663, approved by Mason and Wilson JJ in

Rochfort v_ Trade Practices Commission (1982) 153 CLR 134 at

pp.146, 151. The various subpoenas differed a little as to

the documents required to be produced but there was

When the various subpoenas were called, counsel for the PGEU indicated the categories of documents which were held by the respondent to the subpoenas -- the General Secretary, Mr George Crawford -- but they objected to the production of these documents to the Court upon the ground that production might tend to expose the organization to a penalty. They

pointed out that, although breach of s.45D of the Trade

Practices Act was not a criminal offence: see s.78, a pecuniary penalty may be recovered against a body corporate

Envirotech Australia Pty Limited (1986) 67 ALR 253 at p.262, a

claim for privilege on the ground of self-incrimination must be determined in this Court according to the common law. The common law privilege aginst self-incrimination applies to the production of documents upon subpoena: see Commissioner for

Railways v_ Small (1938) SR (NSW) 564 at p.574. There 1s clear

authority for the proposition that the privilege not to answer a question or to produce documents applies as much to a case in which the tendency of the answer will be to expose the person to proceedings for a penalty as to a case of self-incrimination, in the strict sense: see Phipson on

Evidence (13th ed) para.15-37, Mayor etc of the County Borough of Derby v Derbyshire County Council [1897] Ac 550 at p.553,

Police Service Board v Morris (1985) 58 ALR 1 at p.4,

Refrigerated Express Lines (Australasian) Pty Limited v

Australian Meat and Live-Stock Corporation (1979) 42 FLR 204,

In such a case the term "self-incrimination" is not really apt but, for convenience, I will use it to include exposure to

There has been some divergence of view upon the question whether the privilege against self-incrimination applies to a corporation. In the United Kingdom the claim of

privilege has been allowed: see Triplex Safety Glass Company

Limited v Lancegaye Safety Glass Limited [1939] 2 KB 395, Rio

Tinto Zinc Corporation v Westinghouse Electric Corporation

{1978] Ac 547. The position 1s the same in Canada: see

Webster v Solloway, Mills & Co [1931] 1 Dom LR 831, Klein v

Bell [1955] 2 DLR 513. But the United States Supreme Court

has limited the privilege to individuals: see Campbell

Painting Corporation v_ Reid (1968) 392 US 286. There are

Australian cases, of which Refrigerated Express is an example,

which proceeded upon the assumption that the privilege extended to corporations; but a majority of the High Court of Australia has twice recently reserved that question: see

Pyneboard Pty Limited v_ Trade Practices Commission (1983) 152 CLR 328 at p.335, Controlled Consultants Pty Limited v

Commissioner for Corporate Affairs (1955) 57 ALR 751 at p.757.

In the latter case Murphy J at p.757 expressed the view that, the privilege being a human right, it was inapplicable to corporations. However, assuming that the privilege does extend to corporations, 1t 1s clear that the privilege is only against self-incrimination. As was said in Controlled

Consultants by Gibbs CJ, Mason and Dawson JJ at pp.755-756:

",...whilst the privilege, apart from any statutory exclusion, would protect a person

privilege against self-incrimination." It follows, of course, that nobody may rely upon the privilege to resist the production of documents which incriminate someone else: see Rochfort per Mason J at p.145 and Pyneboard

In a case where the corporation itself 1s required to supply the relevant information, as, for example, when the subpoena is addressed to the corporation itself or when interrogatories are administered to, or discovery must be made by, a corporate party to litigation, it would be consistent with these principles to hold that the privilege extends to documents or to answers which will tend to incriminate the corporation. Although the corporation must, of necessity, act through an agent, the act of the agent 1s the act of the corporation itself. But, in the case of a subpoena addressed to an individual rather than to the corporation itself, the Situation 1s different. It is true that the individual affected by the subpoena is chosen because of his or her relationship to the corporation. But the command of the subpoena is to that individual rather than to the corporation itself. If the subpoena is disobeyed, the remedy for enforcement is against the person to whom the subpoena 1s

Although I have not been able to find any direct authority on the point, 1t seems to follow from this analysis that the only question of self-incrimination which may arise in relation to a subpoena issued to an individual, as were these subpoenas, is whether the production of the documents May tend to incriminate -- or to expose to proceedings for penalty -- the individual to whom the subpoena is addressed. No question of self-incrimination of any body corporate may arise. The result may appear pedantic, a distinction being drawn between the discovery of documents by a corporate litigant and the production on subpoena of those same documents by the corporation's secretary. But I think that the result does reflect the reason -- or at least the primary reason -- for the principle itself. The privilege is a recognition of the need to preserve human dignity, a reaction to the methods of the Star Chamber. As was said by Murphy J

"The privilege against compulsory self-incrimination is part of the common law of human rights. It is based on the desire to protect personal freedom and human dignity. These social values justify the impediment the privilege presents to judicial or other investigation. It protects the innocent as well as the guilty from the indignity and invasion of privacy which occurs in compulsory self-incrimination; it is society's acceptance of the inviolability of the human personality."

If the above analysis is correct, there is, in the present case, no question of privilege against production of the documents in order to avoid any risk of self-incrimination by the organization. However, it does become necessary to

consider the possibility of self-incrimination by Mr Crawford.

It is clear that there is no question of any conduct of Mr Crawford in breach of s.45D having exposed him to either

criminal liability or a pecuniary penalty under the Trade

Practices Act itself: see s.76(2) of that Act. However, by way of ancillary claims each of the applicants alleges that the conduct complained of amounted to an unlawful conspiracy. This does not mean that it is yet suggested that any relevant conduct constituted a criminal conspiracy. There is now little relationship between the tort of conspiracy and the crime of that name. Moreover, Mr Crawford is not named as a respondent to any Application. So far nothing is alleged against him personally. But, it was suggested on behalf of

the PGEU, the information contained in the documents might indicate that he had been a party to a criminal conspiracy;

so that disclosure of the information may have a tendency to incriminate him on that offence. Reference was made to Navair

Pty Limited v_ Transport Workers Union of Australia (1981) 52

FLR 177 at p.194, a case in which Evatt J upheld on objection to answering interrogatories, amongst other reasons, because

of the possibility of the self-incrimination for conspiracy of

In Warman, at pp.265-266, I referred to the principle that privilege against self-incrimination may only be claimed at the point at which the risk of actual incrimination arises. No risk of self-incrimination can arise from the mere production of documents to a court. The problem only arises if, and when, the Court makes access to those documents

available to persons who are free, if they so desire, to use

the information they contain for the purpose of criminal proceedings. It is always open to a court to impose conditions upon access which will preclude the use of that

information in criminal proceedings: see Busby v Thorn EMI

With these matters in mind I required, in the present case, the production for inspection of the whole of the documents. The documents consisted of the following: lists of bans imposed upon various jobs, a copy of the notice of the New South Wales stop work meetings on 7 and 8 August 1986, wages records of Mr Robson and Mr Somerville, correspondence regarding the PGEU log of claims, certain PGEU publications and the Federal Executive Minute Book. I took the view that, with the possible exception of the Federal Executive Minute Book, there was no question of the information in any of these documents tending to implicate Mr Crawford in any criminal conspiracy. Consequently, I made all of these documents available to the applicants without restriction. As it was not convenient immediately to peruse the whole of the Minute Book, so as to be similarly satisfied in respect of that

document, I made an order under s.50 of the Federal Court of

Australia Act 1976 confining access to the counsel and solicitors actually engaged in the present proceedings. Counsel for the applicants tendered the Minute Book and made reference to some of the resolutions recorded in it in the

Since reserving my decision upon the applications I have taken the opportunity to read the Minute Book and to consider in more detail the possibility of a prosecution for criminal conspiracy. The Minute Book records the proceedings at numerous meetings attended by members of the Executive, including Mr Crawford. At some of those meetings decisions relevant to the present matters were taken. I have already referred to the more significant resolutions. However, notwithstanding those decisions, I am now satisfied that there is no possibility of the publication of the information contained in the Minute Book incriminating Mr Crawford. At the most the resolutions record agreements amongst the members of the Executive to the conduct of a campaign in support of the log of claims, a campaign to be supported by the imposition and maintenance of selective work bans. The members of the Executive must be taken to have appreciated that such bans would visit economic loss upon various parties, including affected building contractors. But it is not a crime for a person to deny his or her labour to an employer, even with the intention that loss will thereby be occasioned to another. Neither is it a crime for another person to counsel or procure an employee to take that course. In Navair Evatt J, at p.194, referred to the description of the crime of conspiracy in Watson and Purnell's "Criminal Law" but, with respect to the learned authors, that description -- now contained in para.1134 -- is too broad to describe the offence at this time. Watson and Purnell state the elements of the

(b) do something wrongful and harmful to another person; or

(c) use unlawful means in the carrying out of an object not otherwise unlawful." Unless the words "wrongful and harmful" are read down to mean "criminal" -- in which case (b) 1s included within (a) -- the

insertion of this category cannot be reconciled with recent

cases, such as Director of Public Prosecutions v Withers

[1975] Ac 842. Without (b), the description corresponds with what has been called the "Denman antithesis", after the description by Lord Denman CJ in R v Jones (1833) 4 B & Ald 345 at p.349, 110 ER 485 at p.487 of a conspiracy as being an agreement "to do an unlawful act, or a lawful act by unlawful means". But, as is demonstrated by the analysis in Gillies, "The Law of Criminal Conspiracy" at pp.72-73, the word "unlawful" was used by Lord Denman as a synonym for "criminal"; as it was also by Willes J in his well-known

re-statement of the elements of conspiracy in Mulcahy v_ The

Queen (1868) LR 3 HL 306 at p.317. The Denman formulation, so

understood, conforms with the statement in Wright, "Law of

Criminal Conspiracies and Agreements", a work published in

",..that as a rule, an agreement or combination 1s not criminal unless 1t be for acts or omissions (whether as 'ends' or as 'means') which would be criminal apart from agreement; and that the nodern law of conspiracy is in truth merely an extension of the law of attempts, the act of agreement for the criminal purpose being substituted for an actual attempt as the overt act."

Wright went on to refer to conspiracy to defraud and to the probability that, in the case of agreements "directly of a public nature and levelled at the government", and, perhaps, in the case of agreements to pervert or defeat justice, the law of criminal combination had gone beyond the bounds of the ordinary criminal law. He went on at p.63:

"In the case of agreements to coerce a master or workman in the conduct of his business or in the disposal of his industry, there seems to be recent authority in favour of such an extension, but it has not yet been placed beyond doubt by a number of cases or by the authority of a court of appeal; and it has been seen that there is much difficulty in finding authority for such an extension in the common law before the present century."

During the 20th century there have been decisions upholding a head of conspiracy known as conspiracy to effect a public mischief but the House of Lords, in Withers, rejected the existence of such a head. The tendency of the recent decisions has been to confine the ambit of criminal conspiracy to that enunciated by Lord Denman, that is an agreement to act in a manner which is contrary to the criminal law: see Gillies at p.74-81. There appears to be no recent decision supporting the proposition that a combination of workmen merely to withhold their labour may constitute a criminal conspiracy: see Gillies at pp.146-150. It is impossible to believe that the few ancient and unsatisfactory authorities favouring that proposition would be accepted in Australia

As I have pointed out, the contravention of s.45D of

the Trade Practices Act is not a criminal offence. However,

such conduct by a corporation does attract a civil penalty. But for one matter 1t might be arguable, by extension of the notion of criminality, that an agreement by an individual to act with others in the contravention of s.45D is indictable as a criminal conspiracy. However, s.78(£) removes the possibility of such an argument. That paragraph provides:

"78, Criminal proceedings do not lie against a person by reason only that the person--

(€) has conspired with others to contravene such a provision."

Under these circumstances I have, upon consideration, reached the view that there is no possibility that the disclosure of the content of the Minute Book would tend to incriminate Mr Crawford in relation to criminal conspiracy. Consequently, I have felt free to refer in these reasons to the relevant

Finally, I should mention that some of the applicants issued subpoenas to Mr Alex Somerville, a respondent in five of the proceedings, requiring the production, amongst other documents, of all books or documents recording or noting bans on the performance of work on certain jobs. Counsel for the respondent answered this subpoena by producing to the Court, over objection, two notebooks which, 1t was conceded, were written up by Mr Somerville. At that time, without having examined the notebooks, I thought it possible that a question

might arise as to the self-incrimination of Mr Somerville. On

the other hand the notebooks appeared to be relevant to the case made against Mr Somerville and, perhaps, other respondents as well. Consequently I granted access to these notebooks; but only after all applicants, by their counsel, and all counsel and solicitors engaged in the conduct of any applications on behalf of any of the applicants gave to the Court undertakings that they would not, nor would any of them, use the information contained in either of the notebooks for the purpose of any criminal proceedings. Access was restricted to the counsel and solicitors actually engaged in the applications. In the result, the notebooks were tendered in evidence. However, the affidavit evidence against Mr Somerville not having been challenged, it is not necessary for me to take into account -- or in these reasons refer to -- the

The first question which I have to decide, in relation to the present applications, 1s whether there is a serious question to be tried in favour of the proposition that the conduct of the respondents, as disclosed by the evidence,

contravenes s.45D of the Trade Practices Act: see Epitoma Pty

Limited v Australasian Meat Industry Employees' Union (1984) 3

FCR 55 at pp.58-60, noting especially the Full Court's

adoption in that case of what was said by Lord Diplock in

Dimbleby & Sons Ltd v National Union of Journalists [1984] 1 WLR 427 at p.436 about it being "no part of the Court's

function on an application for an interlocutory injunction to decide difficult questions of law which call for detailed

Limited v Electrical Trades Union (1986) ATPR 40-694 at p.47,623 "For there to be a serious question to be tried in the case of an application under s.45D there must at least be

some evidence going to each of the elements making up a cause

It is, therefore, necessary first to consider whether there 1s evidence upon each of the elements of either of the causes of action relied upon by any of the present applicants. These causes of action are those created by s.45D(1)(b) and s.45D(1A), which provisions read as follows:

"45D. (1) Subject to this section, a person shall not, in concert with a second person, engage in conduct that hinders or prevents the supply of goods or services by a third person to a fourth person (not being an employer of the first-mentioned person), or the acquisition of goods or services by a third person from a fourth person (not being an employer of the first-mentioned person), where--

(b) the fourth person is a corporation and the conduct is engaged in for the purpose, and would have or be likely to have the effect, of causing--

(1) substantial loss or damage to the business of the fourth person or of a body corporate that is related to that person; or

(11) a substantial lessening of competition in any market in which the fourth person or a body corporate that 1s related to that person supplies or acquires goods or services.

(1A) Subject to this section, a person shall not, in concert with another person, engage in conduct for the purpose, and having or likely to have the effect, of preventing or substantially hindering a third person (not being an employer of the first-mentioned person) from engaging in trade or commerce--

(a) between Australia and places outside Australia;

(c) within a Territory, between a State and a Territory or between two Territories."

The various applicants seek to apply sub-s.(1) by submitting that the evidence indicates that a person (the PGEU) has, in concert with a second person (the relevant official who went to the particular job for the purpose of imposing bans), engaged in conduct that hinders or prevents the supply of services by a third person (each sub-contractor) to a fourth person (the relevant head contractor/applicant). Alternatively, they say, the conduct hinders or prevents the acquisition of services by a third person (the relevant head contractor/applicant) from a fourth person (each sub-contractor). Either way, they say, the requirements of

A further alternative is to regard the union, in each case, as the first person and the plumbing employees on a particular job -- or some of them -- as the second person. Of course, the union, being a corporate body, must work through agents but 1t would seem not to be an objection to a claim under s.45D(1) that other people were also party to the

It seems to me that this last analysis is the most appropriate application of the sub-section to the present

facts. The evidence establishes a prima fac1le case that the

union, through its Federal Executive, decided to impose a series of bans and limitations which would have the effect of hindering or preventing the supply of services by plumbing sub-contractors to their head contractors. It also establishes a prima facie case that certain union officials, Mr Batchelor, Mr Somerville, Mr Robson and Mr Campbell, took active steps towards the imposition of the ban on particular sites. But neither the union nor its officials were ina position, by themselves, to affect the supply of services upon any site. They needed to obtain the co-operation of the PGEU members on any site which was to be affected by a ban or limitation. In the case of all sites referred to in the

present proceedings they did obtain that co-operation.

I am of the opinion that there is evidence to support the application to this case of the opening words of the sub-section -- in either of their alternative formulations -- but only upon the understanding that the relevant "second person" was the body of employees, or a relevant part of them,

engaging in conduct the result of communication between the parties and not simply simultaneous actions occurring spontaneously": see per Bowen

CJ in Tillmanns Butcheries Pty Limited v Australasian Meat Industry Employees' Union (1979) 42 FLR 331 at p.337. But

there is ample evidence that what was done on each site resulted directly from the communication by union officials of

the decision of the Federal Executive, which decision had

itself been made known to members in the union's official

magazine and other publications. It is true, as counsel for

the respondents submit, that the actual bans were the product of decisions taken by members of the PGEU upon each site; but it is impossible to ignore the fact that those decisions were the direct result of the bans policy adopted by the PGEU

Federal Executive and implemented by its officials.

Builders Labourers' Federated Union of Workers (1987) ATPR

40-757 at p.48,205 French J suggested that the acts constituting the relevant conduct under s.45D(1) need not coincide precisely in time, although he added that "their temporal relationship must be sufficiently close to be consistent with the notion of 'concert'". In the present case the union, through its Federal Executive, had adopted a policy of imposing selective bans in support of its log of claims. Through its officials, in the Federal Executive meetings, and before the Conciliation and Arbitration Commission, it maintained that policy. Through its organizers, 1t sought to carry that policy into effect upon particular sites, including those of the applicants. If precise contemporaneity is required -- and I join with French J in thinking that it is not -- it existed in this case. Certainly all relevant actions were sufficiently close, in a temporal sense, to be

The next question is whether there is evidence to suggest that the relevant conduct of the union and of its

on-site members, was engaged in for the purpose of causing

substantial loss or damage to the business of the fourth person. I interpolate that there is no doubt that the conduct has had the effect of causing substantial loss, and will be likely to cause further substantial loss, to head contractors and to sub-contractors alike. So, whichever of them is cast

as the fourth person, the second requirement of the opening

In Flower Davies at p.48,206 French J summarised the principles relating to purpose which emerge from the authorities on s.45D. Those principles have not been the subject of contention before me and I quote them without reference to the decisions from which they are taken:

"The purpose which attracts the application of subsec.45D(1)(b) has been described as the 'operative subjective purpose of those engaging in the relevant conduct in concert'. It is to be identified 'by reference to the real reason or reasons for, or the real purpose or purposes of, the conduct and to what was in truth the object in minds of the relevant persons when they engaged in the conduct in concert'. ...

concert." However, there is conflict between the parties as to the application of those principles to the present case. The applicants argue that the purpose of the Executive in deciding that bans should be imposed, and the purpose of its organizers and the on-site members in imposing bans in particular cases, was to cause loss or damage to the business of the head contractors. On the first of the two alternative applications

of the opening words of sub-s.(1) the various head contractors

are the "fourth person" so that, they claim, the requirements

of para.(b)(i) of that sub-section are satisfied. The applicants' argument concedes that the causation of loss or damage was not the ultimate purpose of the exercise but that,

The respondents dispute that the evidence indicates a purpose of causing loss or damage to the head contractors. This is an ordinary case, they say, of employees imposing limitations upon the work to be done for their employer in the pursuit of ordinary industrial goals: higher wages, shorter hours and better conditions. As is not unusual, damage to

others, they say, was an incidental result of such conduct.

These being interlocutory applications, it is neither necessary nor desirable for me to reach any firm conclusion upon this factual issue. It is enough to say, as I do, that there 1s substantial evidence to support the applicants' contention. Both the Federal Executive and the officials of the organization were well aware of the position of the head contractors. The Executive resolution of 18 August 1986 speaks of "negotiations ... with the major national developers in the building industry with a view to reaching agreement on the Union's log of claims as soon as possible"(para.(e)) and to claims on certain "national builders on a priority basis" (para.(g)). Perhaps some of these developer/builders directly employ plumbers; but the resolutions are capable of being read as a reflection of a view by the members of the Executive that, if worthwhile concessions are to be extracted from the employers, it will first be necessary to obtain the agreement

of those who engage the services of those employers. It is

not difficult to see why such a view might have been taken. It is unlikely that sub-contractor employers, already committed to a price in respect of a particular job, would be able immediately to increase benefits to their employees; perhaps especially if the increase was made outside the arbitration system. And, from the failure of the union to submit the claims to the Conciliation and Arbitration Commission and the comments of Deputy President Riordan, 1t

may be inferred that the Executive realised that the claims

Secondly, the evidence indicates that, at a very early stage, the head contractor was, in each case, directly informed by the relevant union official of the fact of the bans being imposed on its job. Usually, it seems, the head contractor was informed even before the various sub-contractors, the actual employers of the PGEU members.

The practice of informing the head contractor may have stemmed simply from courtesy. It may have arisen out of a belief that the head contractor preferred to handle for itself all industrial problems on the site. But, especially having regard to the lack of evidence of any such belief, the conclusion is open that the union officials were anxious to impress the head contractors with the reality of their

Evidence of three snippets of conversations further supports the inference that those controlling the union's

activities sought to cause loss to the head contractors in aid

of their ultimate purpose. First, there is the comment of Mr

Robson to Mr Dolman about his company "being fucked like the

others" 1f£ it -- that is the head contractor, Sabemo -- does not "make a contribution" and his advice to "get Guido to give me a ring". Secondly, there 1s Mr Somerville's answer to Mr Connery of Leighton about the builders "really bleeding" and that "they can't last much longer". Finally, I note Mr Campbell's complaint to Mr Murphy about Civil & Civic not acknowledging the log of claims. Normally, of course, it would be for the employer of the relevant employees to deal

The evidence does not indicate what was in the minds of the members when they decided to accept the advice of their union and to impose bans on work at their particular sites. But, in most cases, 1t appears that this decision was taken at a mass meeting of all PGEU members on the site, not at separate meetings of the employees of each sub-contractor. This is consistent with the possibility that each meeting considered that job as a whole, and not merely the position of a particular sub-contractor employer. Especially in the absence of evidence to the contrary, it seems to be safe to infer that the union officials who conducted those meetings would have passed on to the members the reasons underlying the adoption of the policy of bans, as those officials understood them. And the comments already mentioned show that the three organizers who attended the subject meetings all thought that the object included the putting of pressure upon the head contractors by causing them loss. The fourth official who

attended a site meeting, Mr Batchelor, is a member of the

Federal Executive. He attended the meeting of 18 August 1986

at which the Exeuctive decided to embark upon the campaign.

conduct complained of falls within s.45D(1) of the Act.

The argument under s.45(1A) is advanced only in matter G.51 of 1987, this being the only case in which there is an inter-state element. I am not satisfied that, in that matter, there 1s an arguable case under sub-s.(1A). The evidence relating to the Melbourne bans is scanty, no information being given as to the method by which, or the persons by whom, those bans were imposed. It would not be proper to assume that the course followed at the subject Sydney sites was followed in Melbourne; and without resort to such an assumption there is no basis for a finding of the

necessary acts of concert or of the necessary purpose.

There is a further problem about the application of sub-s.(1A). That sub-section requires that a particular type of trade be prevented or hindered. It is said that the effect of the bans in Melbourne has been to hinder trade among the States; this because the Melbourne head contractor 1s a subsidirary of a holding company, to whom it would pay dividends out of profits, which is incorporated in New South Wales. Reference is made by counsel to decisions upon the meaning of "trade and commerce" such as W & A McArthur Limited v_ The State of Queensland (1920) 28 CLR 530 and Industrial

Enterprises Pty Limited v The Federated Storemen and Packers

Union of Australia (1979) ATPR 40-100. JI doubt that those

authorities take the applicants in G.51 of 1987 as far as they

need to go to bring their case within s.45D(1A) but, having

regard to the views on other matters which I have already expressed, it 1s unnecessary for me to say more than that I

see considerable difficulties in the applicants' argument.

The respondents rely upon para.(b) of sub-s.(3) which

(3) A person shall not be taken to contravene, or to be involved in a contravention of, sub-section (1) or (1A) by engaging in conduct where--

(b) in the case of conduct engaged in by the following persons in concert with each other (and not in concert with any other person), that is to say--

(i) an organization or organizations of employees, or an officer or officers of such an organization, or both

such an organization or organizations and such an officer or

(ii) en employee, or two or more employees who are employed by the one employer,

the dominant purpose for which the conduct is engaged in is substantially related to--

(iii) the remuneration, conditions of employment, hours of work or working conditions of the employee, or of any of the employees, referred to in sub~paragraph (ii); or

(iv) the employer of the employee, or of the employees, referred to in sub-paragraph (ii) having terminated, or taken action to terminate, the employment of any of his employees."

Two questions have been argued in relation to the application to this case of sub-s.(3). The first concerns the identity of the persons who are in concert for the purpose of engaging in the conduct which is, prima facie, proscribed by sub-s.(1). Upon the analysis of sub-s.(1) which I regard as being open upon the evidence, sub-paras.(i) and (ii) are satisfied. The relevant "first person" is the union, an organization of employees, and or its officials, Mr Batchelor

I should say that there has been some argument upon the question whether each of the organizers referred to in the evidence is an "officer" of the organization; this question being said to depend upon whether each has been elected, as distinct from being appointed, to his position. The term "officer" is not defined in the Trade Practices Act. Perhaps, having regard to its context, 1t should be given the meaning 1t bears in the Conciliation and Arbitration Act; as to which see the definition of "office" in s.4(1) and also see s.4(4) of that Act. However this 1s not clear. The purpose of sub-s.(3) was to exclude from the operation of sub-s.(1), subject to certain conditions, conduct directed by employees against their own employer. It was assumed that they might need the aid of their union. It would be remarkable if their immunity from the consequences of s.45D(1) depended upon the question whether the union organizer who assisted them happened to be elected -- and so the holder of an "office" under para.(d) of the definition of that term in the

Conciliation and Arbitration Act -- or merely appointed.

Bearing in mind Lord Diplock's dictum, I propose to assume the

view, favourable to the existence of the defence, that all of the organizers mentioned in the evidence were "officers"

However, 1t is said that, upon the evidence, the defence under sub~s.(3) is lost because the parties to the relevant concert included in each case persons other than the employees of the particular sub-contractor upon whose activities bans were imposed. This argument is put at two levels. Firstly, it is said that the relevant conduct has to be regarded as the whole of the activity which culminated in the imposition of particular bans, that is as including the various decisions of the Federal Executive of the PGEU, the decisions taken at the stop work meetings of members held in early August 1986 and the decisions of the 200 job delegates in early December 1986. Even if the decisions of the Executive be treated as conduct of the organization itself, it 1s said that the decisions made at mass meetings of other persons -- even if all were PGEU members = cannot be regarded as conduct of the organization. And, of course, participation in those meetings extended well beyond those employed by the

At the second level 1t 1s said that, if one excludes all that went before, the decision to impose bans on the work of a particular head contractor was, in each case, made at a mass meeting of the PGEU members on that job. It follows, the applicants say, that the parties to the decision to impose a ban on items of work to be performed by a particular sub-contractor included persons who were not employed by that

arguing that the relevant conduct extends only to the actual

selection of the particular items of a sub-contractor's work.

The inference should be drawn, they say, that the decision as to items was made only by the employees of that sub-contractor, perhaps in conjunction with the organizer. Those employees, it is said, would be the people best Fitted to make the decision as they would have the most intimate knowledge of the sub-contractor's program. Counsel contends that all that went before was no more than background; it was only the selection of individual items of work which could adversely affect the supply by the sub-contractor of services

Once again, I do not think that it 1s appropriate for me to attempt any firm conclusion upon these matters. In determining the ambit of the relevant conduct much may depend upon the facts ultimately established. However, my present view is that the approach argued on behalf of the respondents unduly circumscribes the meaning of the word "conduct". Persons acting 1n concert often perform differing roles. The final step in achieving a common goal may be a single act of a single person. Yet it may remain true that the achievement was the direct result of a course of conduct undertaken in concert by several people. Having regard to the close connection between the actions of the Federal Executive and tne union organizers on the one hand and the decisions taken by PGEU members on the various sites on the other, I think it probable that, at the final hearing, these will be found to be

There is a distinct prospect that the "first level" case will succeed; and an even more substantial prospect of success in the "second level" argument. In this connection I note that it is by no means clear that the proper conclusion is that only the employees of particular sub-contractors participated in the selection of items to be banned. There 1s no material upon which to reach a conclusion one way or the other. I doubt whether it can be inferred that this would have been left to each group of employees. The number of plumbers on each site was always comparatively small. Presumably most had a good idea of the work to be done on the

site. Factors of personality may well have played a part.

In relation to the second issue under s.45D(3) the respondents are, in my opinion, upon firmer ground. The defence under para.(b) of that sub-section requires that "the dominant purpose" of the conduct be "substantially related to" the remuneration, conditions of employment, hours of work or working conditions of employees of a particular employer. I apprehend that conduct substantially related to the remuneration, etc of employees of a particular employer does not lose its character as such merely because similar claims are concurrently being made -~ and pressed by similar conduct -- against other employers. Nonetheless, in the present case, the applicants dispute that the conduct complained of is substantially related to remuneration, etc. They point to certain documents issued on behalf of the organization during

the course of the campaign initiated by the Federal Executive

on 18 August 1986. Some of these documents offer strong criticism of the Commonwealth government, and of some of its members; the suggestion being that the current government has betrayed the trust of workers by engineering a significant reduction in real wages whilst permitting the accretion of wealth to others. Furthermore, one of the pamphlets issued by the union calls for the removal from Plumbers' awards of bans clauses and stand-down provisions, for the repeal of ss.45D and 45E of the Trade Practices Act and that tortious causes of

action be not used against trade unions during industrial

However, para.(b) of s.45D(2) requires merely that the dominant purpose of the conduct be substantially related

to matters of remuneration, etc. The word "substantially" conveys a requirement that there be a real connection, as distinct from a theoretical or sham connection, between the dominant purpose and the matters of remuneration, etc. The word "dominant" accepts that there may also be a substantial

relationship with some ancillary or subsidiary purpose. The

The genesis of the bans imposed upon the sites of the present applicants was the decision of the Federal Executive to formulate and to press a new log of claims. ach of the items in that log of claims falls within the descrinotion contained in sub-para.(1ii) of s.45D(3)(b). The bans were imposed as part of a campaign to obtain the concession of

those claims. The employer groups' letter to 10 December 1986

seems to concede as much. The dominant purpose was, in my

view, "substantially related" to the matters raised by the log of claims. True it is that the documents sent to members relating to the campaign contained material strongly critical of the government. But I read this as a justification for the adoption of the campaign rather than an explanation of its objective. The material relating to bans clauses, ss.45D and 45E, etc was contained in a Newsletter issued to members during the course of the campaign. It appears to be a response to the applications for the insertion of bans clauses which had been made by some employers to the Conciliation and Arbitration Commission. It is possible that, by that time, the legal changes mentioned in the Newsletter had become a subsidiary purpose of the campaign; but the primary and dominant purpose remained the achievement of the log of claims. That purpose amply explains the union's conduct in

However, notwithstanding that I accept the respondents' submission concerning this last matter, 1t seems to me that there is such a degree of difficulty about the respondents' case concerning the question earlier discussed -- whether non-employees of the relevant employer were parties to the relevant concert -- as to make it unlikely that a defence under s.45(3)(b) will succeed. It certainly must be concluded that the existence of that paragraph does not deny to the case of the applicants, considered as a whole, the quality of raising a serious issue as to the liability of the respondents

I have already mentioned that, in addition to s.45D of the Act, each applicant relies upon certain common law causes of action. In the case of Concrete Constructions and John Holland the additional causes of action are conspiracy to injure the applicants in their business, conspiracy to induce

a breach of contract and unlawful and intentional injury: see

Beaudesert Shire Council v Smith (1966) 120 CLR 145. The

remaining applicants each rely upon the first two of those

Counsel have furnished me with written submissions upon the question whether there is a serious question to be tried in relation to each of these additional causes of action. However, in the light of my view as to s.45D, the answer to that question cannot affect my decision as to the course now proper to be taken. Consequently, I refrain from

expressing any view about the additional causes of action.

The evidence establishes that each of the applicants has sustained loss as a result of the bans. In most cases the losses are very substantial, even having regard to the scale of the relevant contracts. Whilst the bans continue, further losses will be sustained. From the applicants' point of view there is a strong case, in terms of the balance of convenience, for granting interlocutory relief. No case has

been put upon the other side. It is not suggested that the

respondents, or any of them, will sustain any loss if

interlocutory relief is granted and it is difficult to see how

However, counsel for the respondents submit that, in the exercise of its discretion, the Court ought not to grant interlocutory relief to the applicants. In substance, two reasons are given: delay and futility. In relation to delay, counsel point out that all of the bans now complained of have been in place for several months, some going back over six months. Proceedings could have been taken at an earlier stage, they say, and no explanation of the delay has been

Delay by an applicant 1s always a matter relevant to the exercise of the Court's discretion to grant interlocutory relief. But delay is not necessarily fatal. Everything must depend upon the circumstances. The question whether the delay has occasioned prejudice to the respondent is of particular importance. In the present case no prejudice has been, or seemingly could be, suggested. Moreover, as it seems to me, the reason for the delay is both apparent and commendable. The bans were imposed in pursuance of an industrial dispute. The organizations representing the employers affected by the bans sought to resolve the matter in the tribunal constituted for the resolution of industrial disputes affecting unions

registered under the Conciliation and Arbitration Act: the

Conciliation and Arbitration Commission. They took such steps as were open to them to resolve the matter in that forum. It

was not until the end of January 1987 that it finally became

apparent that these attempts would fail. The present applicants are, I presume, each members of the Master Builders' Association of New South Wales. They must have kept themselves informed about the progress of the matter. In my view they were eminently justified 1n refraining from embarking upon proceedings in this Court until it was clear that there was no alternative. For the applicants to have

commenced proceedings for relief under s.45D of the Trade

Practices Act at a time when the same matter was before the Commission would have been likely to have been seen by the PGEU as oppressive conduct calculated to inflame the dispute After the failure of the private conference on 30 January 1987 each of the applicants acted with expedition. All of the

Far from it being a factor weighing against the grant of relief, the fact that these applicants stayed their hands until it became clear that the matter could not be resolved in the Commission is, in my opinion, a point in their favour. As Lockhart J pointed out in Industrial Enterprises at p.17,996 it is not an answer to an application for injunctive relief under the Trade Practices Act that an industrial dispute involving substantially the same facts 1s before the Commission. But, as his Honour added, there may be circumstances where it would be proper for this Court, in the exercise of its discretion, to await the result of proceedings under the Conciliation and Arbitration Act before embarking on

the hearing of proceedings under the Trade Practices Act. It

seems to me that this comment has particular application toa

case where the conduct complained of in this Court is conduct

undertaken in pursuit of a genuine industrial claim lying within the jurisdiction of the Commission. It will normally be preferable to attack the underlying problem between the

Parties rather than to deal with an aspect of their

In the present case the underlying problem between the parties is the unresolved log of claims. Although the determination of those claims lies within the Jurisdiction of the Commission, the PGEU has taken no steps to have the Commission rule upon them. The PGEU has preferred to use its industrial strength, and the high overhead costs associated with multi-level building construction, to achieve tndirectly what it apparently thinks it cannot achieve 1n the Commission. Lacking the opportunity to deal with the central issue, the Commission has done what it can; but to no avail. There is no present prospect that the problem will be resolved elsewhere. What has occurred in the Commission, and the delay it has caused, provides no reason to withhold, on discretionary grounds, the relief to which the applicants are

The argument of futility starts with the observation that none of the PGEU members who decided to impose bans at particular sites is a party to any of the present applications. Consequently no order may be made to restrain any of those people from maintaining any ban. It follows, it is said, that orders against the present respondents would be futile. The bans would remain in force. Furthermore, it 1s

said, most of the members have now been suspended. They have

been told, in the "Message to Members of the PGEU" that, once

suspended, they will not be re-instated until all bans imposed by the union have been lifted; so that, even if they so wished, they would be precluded in practical terms from

There is some force 1n this argument. It is possible that, regardless of any order which might be made in these cases, individual members will continue to refuse to carry out the banned work, assuming that they are given the opportunity to do so. But I think that the argument attributes too little importance to the PGEU position. The evidence establishes that the various decisions on job sites stemmed directly from the activities of the union organizers. Some employees expressed reluctance to join in the bans but felt constrained by the union's position. It cannot be assumed that all the employees would maintain their attitude 1f they were made aware that the union no longer maintained the bans. Furthermore, 1t cannot be assumed that all sub-contractors would continue the suspension of their employees once the union retracted its position. The suspensions were undertaken -- in some cases extremely reluctantly -- in an endeavour to bring the bans to an early end. I£ the union withdrew the bans it would be in the interests of the sub-contractors to give to the employees the opportunity to reconsider their

point up one difficulty which has troubled me. Some s.45D

cases arise out of positive actions hindering or preventing

the supply of goods or services, for example, by the maintenance of a picket line denying access to a place. [In such a case it is enough, in granting relief, to make an order in negative terms restraining the respondents from continuing to deny access. This is not such a case. Here the conduct complained of consists of decisions to do nothing, that is not to carry out specified work. An order restraining the present respondents from continuing to maintain that position may achieve nothing. A reversal of the present situation requires a positive decision to that effect. In the absence as parties of the members who took the decisions to impose bans no order may be made as to their conduct. However, it 1s open for the Court to make such orders against the present respondents or any of them, whether of a negative or a positive nature, as 1s appropriate to maximise the prospect that, pending final hearings, the conduct under s.45D(1) which is now complained of will not continue. It is true that positive orders, mandatory injunctions, are rarely made at an interlocutory stage. The reason, of course, is that the purpose of interlocutory orders is to maintain the partires' rights pending final hearing. That can usually be accomplished by restraining orders. But there are occasions upon which a

Telecommunications Commission (1985) 59 ALJR 562 at p.563 Gibbs CJ referred with apparent approval to the Following

statement in Halsbury's Laws of England vol.24 para.948:

"A mandatory injunction can be granted on an interlocutory application as well as at the hearing, but, in the absence of special circumstances, it will not normally be granted. However, if the case is clear and one which the court thinks ought to be decided at once, or if the act done is a simple and summary one which can easily be remedied, or if the defendant attempts to steal a march on the plaintiff, such as where, on receipt of notice that an injunction is about to be applied for, the defendant hurries on the work in respect of which complaint is made so that when he receives notice of an interim injunction it is completed, a mandatory injunction will be granted on an interlocutory application."

The Chief Justice also referred to the statement of

Megarry J in Shepherd Homes Ltd v Sandham [1971] 1 Ch 340 at

p.351 that "in a normal case the court must, inter alia, feel a high degree of assurance that at the trial 1t will appear that the injunction was rightly granted; and this 1s a higher

standard than 1s required for a prohibiting injunction".

The case made by the present applicants 1s a strong one. I think it probable that they will each succeed at the trial. There is, in my mind, a "high degree of assurance". But, 1n any event, the mandatory order which I propose to make is intended to do no more than to make clear that the first respondent, the PGEU, is complying with the negative

restraining orders which it would be usual to make.

I propose to make orders, in each case, restraining each of the respondents from maintaining, giving effect to or enforcing any ban hitherto imposed on the provision of goods or services by the particular sub-contractors -- to be

specified in each order -- on particular sites. I am not

prepared to make orders so wide as to include other sites, about which there has been no evidence, or no satisfactory evidence. Nor am I prepared to make orders which would preclude the imposition of a future ban. Section 45D does not prohibit all work bans; it is conceivable that there will be

future conduct which does not contravene the section.

However, it is important that effect be given to the Court's orders. There ought not to be a situation of stalemate. For that reason I propose to order, in each case, that by 12.00 noon next Tuesday the union deliver to each specified sub-contractor a letter addressed to it informing it that it, the PGEU, has now lifted, and will not henceforth seek to maintain, give effect to or enforce any ban hitherto imposed on the provision of goods or services by that sub-contractor to the relevant head contractor. It will then be for the sub-contractor to decide what course to take -- whether or not to re-instate its suspended employees -- and for those employees -- 1f re-instated -- to decide their own

The costs of these applications should be costs of each of the applicants in their respective principal

I certify this and the sixty-seven (67) preceding pages to be a true copy of

Solicitors for the Applicant: Counsel for the First, Third and Fourth Respondents: Counsel for the Second

Westgarth Baldick Mr R Kenzie QC with Mr M Moore and Mr S Marshall

Mr J L Trew QC with Mr B Oslington QC and Mr A Ashburner

Solicitors for the Respondent: R L Whyburn & Associates

) ) NEW SOUTH WALES DISTRICT REGISTRY ) NSW G. Nos. 51, 54, 55, ) )

AND: THE PLUMBERS AND GASFITTERS EMPLOYEES ' UNION OF AUSTRALIA & ORS

Corrections to the judgment of his Honour Mr Justice Wilcox of

In the second last line, please substitute "supervisor" in lieu of "superviser" there appearing; and

In sub-section (3), at the comméncement of para.(ii)

immediately before the word "employee", please substitute "an" in lieu of "en" there appearing.