Gi64/86, Roberts v Murlar Pty Limited & Others

Federal Court of Australia|1987-01-22|Before: Evatt J

No. G225 of 1986 No. G226 of 1986 No. G227 of 1986 No. G229 of 1986

IN THE MATTER of the Trade Practices Act 1974, Section 45E(1)

Third Applicant LEIGHTON CONTRACTORS PTY LIMITED AND OTHERS RODNEY CAMPBELL

made certain interlocutory orders against the applicant's

employer, the first named respondent including the following:

That the first named respondent continue to employ the applicant without imposing conditions on such employment, that the applicant,

(a) resign from the Australian Building Construction Employees' and Builders Labourers' Federation;

(b) become a member of the Building Workers' Industrial Union of Australia;

Construction Employees' and Builders Labourers' Federation.

The Building Workers' Industrial Union of Australia, (the BWIU or the organization) an organization of employees registered under the Conciliation and Arbitration Act 1904 was named as the second respondent in that matter, the third respondent being an official within the organization being its job steward at Mr Robert's then place of work, whilst the fourth named respondent was the person whom it was alleged gave directions on behalf of the employer to the applicant as to the work he was required to do at that place of work. In-that matter, as appears from the statement of claim filed therein, the applicant, following his dismissal from work by the first named respondent, alleged a contravention by the first named respondent and the second named respondent, the

organization, of paragraph 45E(1) of the Trade Practices Act 1974

(the Act) and made application for interim orders as set out

4S5E.(1) Subject to this section, a person who has been accustomed, or is under an obligation, to supply goods or services to, or to acquire goods or services from, a second person shail not make a contract or arrangement, or arrive at an understanding, with a third person (being an organization of employees, an officer of such an organization, or another person acting for or on behalf of such an organization or officer) if the proposed contract, arrangement or understanding contains a provision that -

first-mentioned person from supplying or continuing to

supply any such goods or services to the second person

or, as the case may be, from acquiring or continuing to

acquire any such goods or services from the second person;

(bd) has the purpose of preventing or hindering the first-mentioned person from supplying or continuing to supply any such goods or services to the second person except subject to a condition (not being a condition to which the supply of such goods or services by the first-mentioned person to the second person has previously been subject by reason of a provision of a contract existing between those persons) as to the persons to whom, as to the manner in which, or as to the

terms on which, the second person may supply any goods or services; or

(c) has the purpose of preventing or hindering the first-mentioned person from acquiring or continuing to acquire any such goods or services from the second

« person except subject to a condition (not being a condition to which the acquisition of such goods or services by the-first-mentioned person from the second

person has previously been subject by reason of a contract existing between those persons) as to the

persons to whom,.as to the manner in which, or as to the

terms on which, the second person may supply any goods or services.

"Services" includes any rights (including rights in relation to, and interests in, real or personal property), benefits, privileges or facilities that are, or are to be, provided, granted or conferred in trade or commerce, and without limiting the generality of the foregoing, includes the rights, benefits, privileges or facilities that are, or are to be, provided, granted or conferred under -

(1) the performance of work (including work of a professional nature), whether with or without the supply of goods;

(ii) the provision of, or of the use or enjoyment of facilities for, amusement, entertainment, recreation or instruction; or

(iii) the conferring of rights, benefits or privileges for which renumeration is payable

in the form of a royalty, tribute, levy or similar exaction;

(c) a contract between a banker anda customer of the banker entered into in the course of the carrying on by the banker of the business of banking; or

(d) any contract for or in relation to the lending of moneys,

but does not include rights or benefits being the supply of goods or the performance of work under a contract of service; When the matter was called on for the hearing of the application for interim orders there was no appearance by the first named respondent employer. Even though the hearing of the interim application extended beyond one day, at no stage was the first

The alieged facts leading up to the applicant's dismissal from work in that case were that at all relevant times the applicant

had been a member of the Australian Building Construction

Employees and Builders Labourers' Federation (the BLF); that he

was not a member of the BWIU nor did he wish to become a member of that organization; that on 28 April 1986 he was directed to attend at the first respondent's office at Rydalmere and there spoke with the fourth named respondent and asked by him to sign an application form to become a member of the BWIU. After signing the said form, the applicant was asked to surrender his BLF ticket and was told that if he did not hand that ticket over, he would not have his job with the first named respondent. This he refused to do and was then dismissed. Other details of the circumstances surrounding that applicant's dismissal are fully set out in the ex tempore reasons for judgment given on 5 May

At the conclusion of the evidence, Mr Rothman of Counsel, who appeared for the BWIU, submitted that accepting for the purposes of argument the facts as disclosed in the affidavits and the particulars set out in the statement of claim, any "services"

which the first named respondent, the employer, had been

accustomed to acquire from the applicant, were but the performance of work under a contract of service and that that being so, were by definition (see s.4 of the Act) excluded from the meaning of "services" in s.45E(1). Mr Oslington QC, who with Mr Haylen appeared for Mr -Roberts, argued -that -the word "services" is given a very wide and inclusive meaning and after lengthy submissions persuaded the Court that there was, on those facts, an arguable case to be presented to the Court by the

applicant at the hearing of the matter, particularly as regards

Paragraph (c) of s.45E(1), that the "services" alleged to have been acquired by the employer respondent from the applicant and

the acquisition of which had been prevented by the alleged arrangement between the employer and the BWIU went beyond the Mere performance of work under a contract of service. It is stressed that the Court on that interlocutory application did not have the advantage of hearing evidence from or submissions

Accordingly, in all the circumstances the Court, being satisfied that the balance of convenience was clearly in the applicant's favour, made the above interim orders on 5 May 1986. Perhaps it should be presently noted that the BWIU in that case had not led any evidence to support a submission made by Mr Rothman that the granting of the said interim orders could well lead to industrial problems at the particular building site at which the applicant

was employed or at any such site to which the applicant might be

Roberts' case came on for hearing before Pincus J, commencing 12

August 1986. Judgment, dismissing the application was given on

Further, it was notorious that some few weeks before 5 May 1986, the BLF had been deregistered pursuant to Commonwealth legislation (Acts No. 6 and 7 of 1986 (Cwlth)) and, as a

consequence of the said legislation, was unable to represent its

members on building sites throughout various parts of Australia including New South Wales and Victoria or be a party to any federal award, or represent those members before the Federal Arbitration Commission. Legislation having similar consequences within New South Wales and Victoria was enacted by both the New

It was also notorious that at that time several members of the BLF remained, as they claimed, loyal to the BLF and refused not only to resign from the then unregistered association but also refused to join the BWIU. Further, it was notorious that the

policy of "no ticket-no start" was strictly adhered to by all unions in the building industry in those States and that employers generally in the building industry in those States followed such a policy. A further consequence of the enacting of the said legislation and regulations made thereunder was that thereafter the work which was formerly covered by the BLF was allocated to (inter alia) the BWIU leading to anew Award covering work formerly covered by the Building Construction Employees and Builders Labourers (Consolidated) Award 1982, which earlier Award had been binding on the BLF,being handed down by the Federal Arbitration Commission on 25 dune 1986, effective on

Tt is clear in my view that the expressed reasons for granting

the said interim orders in Robert's case had been either

misunderstood of deliberately misrepresented by the BLF and its

officials, it being immediately claimed by the BLF and those officials that the Court had ordered reinstatement of a BLF member who had been dismissed by his employer for refusing to join the BWIU and that ali members who had been so dismissed should as aresult of that decision be reinstated by their

This then was history immediately before the filing in this

Court of five applications, including the four particular matters

In each of the above-listed four matters the applicants in their original statement of claim alleged a contravention of s.45E(1) of the Act by their respective employer, each being a corporation within the meaning of the Act and the BWIU and the Master Builders Association for the State where each employer employed

The additional fifth application filed on 6 June 1986 was matter

No. G228/86, Siddons v Kern Konstructions Pty Limited and Others,

wherein Mr Siddons alleged a similar breach of s5.45E of the Act by his employer, Kern Konstructions Pty Limited, the BWIU and the

The five matters were listed on 16 June 1986 for the hearing of the applicants' application for interim orders. Mr Oslington QC

with Mr Wheelhouse, appeared for all applicants and Mr Tobin QC

with Mr Rothman and Mr G. Harris, appeared for the BWIU. Mr Callaghan of counsel appeared for the Master Builders Association of New South Wales, a named respondent in all matters other than G225/86. Additionally, in G225/86, Mullarkey and Another v Steven Crabb and Others (Mullarkey's case), Mr Uren QC with Mr

Lawrence appeared for the State of Victoria and for Mr Crabb, the then Minister for Industrial Relations in the Victorian Government; whilst Mr Trew QC with Mr Vickery appeared for the applicants' employer, Constructions Engineering Australia Pty Limited; Mr Dejula, the employer''s representative who terminated the applicants' employment and for the sixth respondent, the Master Builders Association of Victoria; In matter G226/86,

Jencar v_ Richard Crookes and Associates Pty Limited and Others

(Jencar's case), Mr McDevitt of counsel appeared for the first

named respondent, the applicant's employer, and for Mr Barry Murphy and Mr Jack Campbell, respectively the employer's Regional

Manager and foreman; In matter G227/86, McNamara _v Leighton

Contractors Pty Limited (McNamara's case), Mr Holmes of counsel appeared for the first named respondent, the applicant's employer and its project manager, Mr Simon Oliver; In matter G228/86,

Siddons v Kern Konstructions Pty Limited and Others (Siddons'

case), Mr Ashburner of counsel appeared for the first respondent

employer; in matter G229/86, Campbell v_ White Industries Pty

Limited and Others (Campbell's case), Mr McCarthy and Mr Lamprati

appeared for the first named respondent employer and Mr Phil

Mouton and Mr Ron Moses respectively the employer's project

Appearances having been taken in all matters, the Court suggested that the application for interim orders in the then five matters could be heard together. This was objected to by the respective respondents but each indicated that they were quite happy to have such applications for interim orders heard each following the other with all parties' counsel in attendance, but on the clear understanding that the evidence in one case was not to be used as evidence in any other unless consented to. On the belief that

this would have an overall effect of shortening each matter, that

It is convenient at this stage to point out that early during the hearing of the applications Mr Siddons in matter No. G228/86, through his counsel, withdrew his application for interim orders for reasons which need not be stated. Accordingly, that matter

At an early stage Mr Oslington indicated that the applicants were not seeking interim orders against the Master Builders Association of New South Wales. Mr Callaghan then sought leave, which was granted, that he be excused at will, indicating that he wished to put final submissions to the Court as to the proper

construction of s.45E(1) of the Act. This he did on 12 August 1986.

When the first matter was called. on for hearing on 16 June 1986, Mr Uren immediately submitted that the Court had no jurisdiction to hear the application against his clients as the Act did not apply to the Crown in right of any of the States or any instrumentality or any agent of the State of Victoria (see s.2A

of the Act and Bradken Consolidated Ltd v Broken Hill Proprietary

Co Limited (1979) 145 CLR 107). Mr Oslington then withdrew the claim against Mr Crabb and the State of Victoria indicating that

formal notice of discontinuance in that regard would he filed.

This in fact was done on 16 June 1986. Despite such withdrawal Mr Uren sought leave to appear with Mr Lawrence as amicus curiae. After hearing submissions in this regard the Court, being satisfied that any orders against the employer respondent in that case may well affect the rights of the State of Victoria and Mr

Crabb, granted such leave (see Sharkey & Co Pty Limited v Fisher

Affidavit and oral evidence was led in each of the four matters.

In all, the hearing of the evidence in all four matters occupied some nine days up until the morning of 4 July 1986. On the afternoon of 3 July 1986 Mr Oslington had indicated that overnight the applicants intended to prepare an amended application in each of the four matters. At 'thé conclusion of

the evidence on 4 July, discussion took place between Counsel and the Court as to future programming for the hearing of submissions, the parties having been made aware sometime before

that owing to its commitments, the Court would not be able to

further sit in the matter until early in August. Mr Oslington then indicated that he had reduced the applicant's submissions on

the matter of principle to writing which were then handed up. He

then commenced to speak to his written submissions. At that stage Mr Uren reminded the Court that there had been some discussion on 3 July of amending the application in each of the matters and that he did not wish to prepare further written submissions during the adjournment in July if the application as filed was to be amended. Amended applications apparently had at that stage not been completely engrossed so the Court permitted Mr Oslington to address. Mr Oslington finished his oral submissions shortly before 1.00pm when the Court adjourned for lunch. On resuming at 2.15pm Mr Oslington sought leave to file an amended statement of claim in each of the four matters which were accepted after it was indicated that the respective

Paragraph 6 and 12 of the amended statement of claim in

The first respondent (employer) has been accustomed to acquire services from the applicant.

The applicant was employed by the first respondent for approximately 12 months prior to April 1986 to perform work as a builder's labourer (for the first respondent during that pericd. (Emphasis added).

Whilst the other statements of claim vary marginally as to length

of previous work, the substance of paragraph 6 does not vary.

The amended statements of claim set out further particulars of other alleged services. These appear in paragraph 12 of the statement of claim in Mullarkey's case and in paragraph 7 in the

Further, prior to 23 April 1986, the first respondent made an 1 arrangement or came to an understanding with the second

respondent and/or the third respondent which contained a : provision for the purpose or purposes which included the purpose of preventing or hindering the first respondent from acquiring and continuing to acquire the services from the applicants except subject to a condition (which was nota condition to which the acquisition of such services had previously been subject to) that the applicants:

(i) resign from the Australian Building Construction Employees and Builders' Labourers' Federation;

PARTICULARS A The particulars of the said services are:

(a) the right, benefit or privilege of having a free selection in the class of persons to perform work without reference to membership or non~membership

of any particular trade union, organisation or federation;

(b) the right, benefit or privilege of accepting an offer by a person to enter into a contract of service without reference to that person's

| membership of any particular trade union, | organisation or federation;

frreec ee - - = wee CO} - the - right; - benefit --or-privilege - of - retaining in -- i employment a person without reference to that person's membership or non-membership of any particular trade union, organisation or federation;

(d) the right, benefit or privilege of not having to terminate or suspend 'a person from employment i because of that person's membership or

non~membership of any particular trade union, organisation or federation;

(e) the right, benefit or privilege of not having to require persons employed to become a member of a particular trade union and/or resign membership of a trade union, organisation or federation. This paragraph as paragraph 7 is repeated in each of the other three amended statements of claim, the only variation being the

date in April 1986 prior to which the alleged arrangement etc was

Mr Uren then addressed the Court in support of his written submissions up until 4.30 pm when the matter was stood over

When the matter resumed on Friday, 8 August 1986 Mr Wheelhouse, in the absence of senior counsel for the applicant, sought leave to further amend the statement of claim in all matters, copies of which had only some minutes before been handed to the respective parties. Objection was taken by all parties to the filing of the further amended statements of claim at that stage of the proceedings. It was suggested by at least some of the respondents, if not all, that if accepted it would be necessary that each matter be re-opened in order that further evidence might be called. After hearing argument the Court adjourned at the request of Mr Wheelhouse so that he might seek instructions. When the Court resumed at 11.30am, Mr Oslington who was part heard in another Court and who had been granted short leave of

I have been told Your Honour there is some difficulties with the amendment. May I simply say this Your Honour, that the

amendment only seeks to accommodate that which Mr Uren addressed on the last occasion.

The Court thereafter during 8 August heard submissions from all Parties as to whether the further amended particulars of claims should be received at that stage of the respective proceedings

before adjourning the matter to Monday, 11 August 1986,

On 112 August 1986 Mr Levine QC with Mr Rudge announced his appearance for the applicants in each of the four matters. The Court, during the forenoon, heard submissions from Mr Levine and counsel for some of the respondents in respect of the filing of

the further amendments. On resuming at 2.15pm Mr Levine stated:

MR LEVINE: Your Honour, on Friday on behalf of each of the applicants, an application was made to your Honour to file a pleading described as a further amended statement of clain. There has, as [I understood it on Friday and today, taken place argument as to whether or not your Honour should allow the amendment or amendments sought to be made as constituted in that document. My instructions are to inform your Honour that the application to amend is withdrawn.

HIS HONOUR: I will reserve costs. That is to say, we are back to the application as formerly filed and the statement -of-- claim-that-was filed in court on 4

July 1986 which is called the amended statement of claim.

MR LEVINE: That is right. Our present position is, your Honour, that the applicants seek relief, or interlocutory relief; and their case is as set

out and pleaded in the decument hitherto described as the amended statement of claim on 4 July.

HIS HONOUR: And the applicants submissions are as put by Mr Oslington on 4 July?

HIS HONOUR: I do not know whether Mr Wheelhouse added to those other than to seek leave to file the

MR LEVINE: In any event, your Honour, the position is this:

that no further submissions are to be made on behalf of the applicants in support of that case.

Their case rests, as it were, on the submissions made hitherto; and in the light of what your Honour has just said as to costs, I have nothing further to say; and with no disrespect either to the court, and it is not to be taken in any disparaging way of the applicants for whom I have appeared this morning, but I would seek your Honour's leave to withdraw with my junior, and my clients will be represented by an attorney, Mr Isaksen, for the balance of these proceedings.

Thereafter and on the following day, 12 August 1986, Mr Trew, Mr McDevitt, Mr Callaghan, Mr Holmes, Mr Rothman and Mr McCarthy put submissions on behalf of their respective clients opposing the granting of any interim orders. The Court then invited the solicitor for the applicants to put any submission in reply orally, indicating that it was not intended to grant an adjournment to enable such submissions to be reduced to writing. The applicants pressed for such an adjournment. After hearing the solicitor for the applicants the Court refused that application stating:

HIS HONOUR: In the matters presently before the Court, Nos G225, 226, 227 and 229 of 1986 I reject the application that the matters be adjourned to enable the applicants to await the transcript so that either Mr Oslington or Mr Wheelhouse, who are otherwise engaged this week, can read the transcript and make written submissions in

reply. I reject that application in the circumstances. Without detailing those circumstances at this stage it is not proper, in my view, that the matter should he delayed any further as I am of the firm view that the court

should indicate its decision as to the application for interlocutory relief in the various matters and I feel sure there is nothing that can be put in reply which would cause the court to change that view. In all the circumstances, in each of the matters Where each of the respective applicants seeks interlocutory relief against nominated respondents I an of the view that the interlocutory relief sought in each respective matter should be refused for varying and various reasons. I will publish full reasons in each matter together with orders as to costs.

An essential condition for a breach of s.45E to have been

committed is that a person must have been accustomed, or under an obligation, to supply or acquire goods or services to or froma second person. The two persons in these matters, as pleaded, were the employer as the first person and the employee as the

second and the allegation was that such employer acquired

It is clear that the performance of work under a_ contract of

service is excluded from the meaning of "services" within s.45E.

It w1ll be seen that paragraph 6 of all the amended statements of claim have the performance of work as the particulars of the

services acquired by the first respondent employer.

All applicants being employed under a contract of service thus

allege that the services the employers have been accustomed to

acquire from the applicant are 'the performance of work. This is not a service within the definition of "services" in the Act because it has been expressly excluded from that definition (see s.4). Thus paragraph 6 of each amended statement of claim does

not support a cause of action alleging a breach of s.45E.

Turning then to paragraph 12 (or 7). First, it is extremely unlikely that any of paragraph 12 (or 7) services are in fact services within the meaning of the Act. They do not fit within the language of the statute. In my view, the elements of the performance of work under a contract of service, such as the initial offer to work is an integral part of the performance of work and should not he treated separately so as to constitute a

Secondly, assuming that any of the said services constituted a service within the meaning of the Act, they are not services which, according to the language of the statute, the employer had been accustomed to or under an obligation to acquire from the employee. For example, the right, benefit or privilege of having a free selection in the class of persons to perform work is derived from the general law and not acquired from the applicant. For this reason the said services in paragraph 12 (or 7) of the amended statement of claim are in my view not services acquired by the employer from the applicant. In this regard I agree with

and adopt the reasons of Pincus J in Roberts v Murlar Pty Limited

& Others at p 20 of his roneced reasons for judgment delivered on

Further, it is alleged by each of the applicants that there was an arrangement or understanding between their respective employer and the BWIU. That arrangement, so the argument goes, prevented the alleged services being acquired from the applicant by the

employer unless the applicant became a member of the BWIU.

The evidence is that members of the BWIU would not work with non-members who were performing BWIU work. This, in effect, 1s the "no ticket-no start" principle which, as pointed out earlier herein, has operated in the building industry for many years and is recognised not only by Unions but by most, if not all employers in that industry. Assuming, for argument, such arrangement exists, such arrangement would, inmy view, be directed to the performance of work by the non-member applicant and not the alleged services set out in the particulars filed

For example, the arrangement does not affect the employer's free selection in a class of persons to perform work. The employer can still employ any person he wishes to. What the arrangement affects is the ability of that employee to actually perform work

For these reasons the Court on 12 August 1986 was of the opinion that the interlocutory mandatory injunction sought by each

applicant in each of the cases should be refused. The test for

granting such a mandatory injunction is set out in the judgment

of Gibbs CJ in The State of Queensland v__ Australian

Telecommunications Commission (1985) 59 ALR 243. it is not sufficient that there merely be a serious question to be tried but the Court needs to have a "high degree of assurance" that the applicant will succeed before granting such an injunction, even

if the balance of convenience is in favour of the applicant.

It is unnecssary in my view to make reference to the evidence in each matter directed to the question of the balance of convenience. Suffice it to say that that evidence is such that the Court would not have found in the applicants' favour in most, if not all,of the matters on the point. In this regard there was evidence which is accepted that should the Court make orders as asked then there was a real possibility that industrial unrest at

Nor it is necessary that any definitive determination be made as

to submissions put by the respondents in Mullarkey's case and

Campbell's case that, because the building work on which the applicants in those two matters was work being performed on behalf of the Victorian and New South Wales Governments respectively, then the section 'of the Act does not apply (see

The applications by way of interlocutory interim relief were

rejected by the Court on 12 August 1986. The formal orders of

the Court in each matter "is that the application for interlocutory relief set out in each application is dismissed. Each applicant is to pay the respective respondent's costs of and

I certify that this and the fuety preceding pages are a true copy of the Reasons for Judgment herein of his

Counsel for the applicants in G225/86: Mr Oslington QC and Mr Wheelhouse.

Counsel for the ist, 3rd and 4th respondents in G225/86: Mr Trew QC and Mr Vickery.

Counsel for the 2nd respondent in G225/86: Mr Tobin QC, Mr Rothman and Mr Harris.

Counsel for the State of Victoria and Mr Steven Crabb, Minister for Industrial Relations in the Victorian Government: Mr Uren QC and Mr Lawrence, as amicus curiae.

Counsel for the applicants in G226/86: Mr Oslington QC and Mr Wheelhouse.

Counsel for the lst, 4th and Sth respondents in G226/86: Mr McDevitt

Counsel for the 2nd respondent in G226/86: Mr Tobin QC, Mr Rothman and Mr Harris.

Counsel for the 3rd respondent 1n G226/86: Mr Callaghan.

Counsel for the applicants in G227/86: Mr Oslington QC and Mr Wheelhouse.

Counsel for the lst and 4th respondents an G227/86: Mr Holmes.

Counsel for the 2nd respondent in G227/86: Mr Tobin QC, Mr Rothman and Mr Harris.

Counsel for the 3rd respondent in G227/86: Mr Callaghan.

Counsel for the applicants in G229/86: Mr Oslington QC and Mr Wheelhouse.

Counsel for the lst, 4th and Sth respondents in G229/86: Mr McCarthy and Mr Lamprati.

Counsel for the 2nd respondent in G229/86: Mr Tobin QC, Mr Rothman and Mr Harris.

Counsel for the 3rd respondent in G229/86: Mr Callaghan.

At a glance

Court

Decision date

Before

Source

Judgment (186 paragraphs)

Parties

Cases Cited (3)

Cited By (1)