Hughes v Western Australian Cricket Association Inc

IN THE FEDERAL COURT OF AUSTRALIA No QG 79 of 1997 QUEENSLAND DISTRICT REGISTRY GENERAL DIVISION

BETWEEN: F H TRANSPORT PTY LTD First Applicant AND: F H WORKSHOPS PTY LTD Second Applicant AND: TRANSPORT WORKERS' UNION OF AUSTRALIA First Respondent AND: HUGHIE WILLIAMS Second Respondent AND: GRAHAM GARRETT Third Respondent AND: MARK WALKER Fourth Respondent AND: PETER PAULOS Fifth Respondent AND: STEVE JONES Sixth Respondent CORAM: Drummond J DATE: 24 June 1997 PLACE: Canberra (Heard in Brisbane) MINUTES OF ORDERS

1. Upon the first respondent by its solicitor giving the undertaking in the form of exhibit 1, the application for an interlocutory injunction is refused.

3. The costs of and incidental to the application for interlocutory relief are reserved.

NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA No QG 79 of 1997 QUEENSLAND DISTRICT REGISTRY GENERAL DIVISION

BETWEEN: F H TRANSPORT PTY LTD First Applicant AND: F H WORKSHOPS PTY LTD Second Applicant AND: TRANSPORT WORKERS' UNION OF AUSTRALIA First Respondent AND: HUGHIE WILLIAMS Second Respondent AND: GRAHAM GARRETT Third Respondent AND: MARK WALKER Fourth Respondent AND: PETER PAULOS Fifth Respondent AND: STEVE JONES Sixth Respondent CORAM: Drummond J DATE: 24 June 1997 PLACE: Canberra (Heard in Brisbane) REASONS FOR JUDGMENT

This is an application by two transport companies for interlocutory injunctions against the Transport Workers' Union (TWU) and a number of its officials to restrain boycott conduct by them with respect to the applicants' business activities. The claim for relief is grounded on ss 45D and 45DB the Trade Practices Act 1974 (Cth) and also in tort. It is alleged by the applicants that the respondents' conduct also amounts to the torts of intentionally interfering with the applicants' contractual relations with others and of conspiring to harm the applicants.

Mr Forsyth, a principal of the applicants, says that the first applicant is the entity within the FH group which enters into contracts for the carriage of goods, while the second applicant is the company which employs the group employees and, in particular, the drivers. He says the business of the group is that of a transport company. Its major business is the collection, transporting and delivery of goods. This involves the transporting of goods up and down the eastern seaboard of Australia and includes the collection, transporting and delivery of containers within the metropolitan area of Brisbane to the Port of Brisbane, many of which containers are for export.

Part of the applicants' business comprises the carriage of goods for certain major transport companies and their subsidiaries. Of particular relevance to the present application are the applicants' contracts to carry goods for NQX and John Bain Transport, both subsidiaries of TNT Australia Pty Ltd, and for United Transport Services, a subsidiary of Brambles Australia Ltd. Another separate but still substantial part of the applicants' business comprises the carriage of goods for others not connected with the major transport companies. Both parts of the applicants' business involve the applicants' trucks delivering goods to and collecting goods from terminals operated by the major transport companies. They also involve the attendance at these terminals of specialised vehicles, such as container lifters, which are owned by the applicants and operated by their drivers.

The TWU for some time now has had under way a campaign of industrial action against certain major transport companies. They are Brambles Australia Ltd, Carpentaria Transport Pty Ltd, Finemores Pty Ltd, K and S Freighters Pty Ltd, Mayne Nickless Ltd, TNT Australia Pty Ltd and Toll Holdings Limited. The TWU is seeking to persuade these seven major operators to enter into agreements within Part VIB the Workplace Relations Act 1996 (Cth) (the Act), which will deliver to the seven operators' employees in 1997 a five per cent increase on existing wage rates and a further five per cent increase on those new 1997 rates in 1998. This is conveniently called in the material "the 10 per cent claim".

This follows an earlier campaign by the TWU, called "the 15 per cent claim", which was successful in achieving by late 1996 negotiated wage increases for employees of certain major transport companies; those wages are currently about 11 per cent above relevant award wages. The TWU contends that the industrial action it is taking against the major operators is "protected action" within s 170ML of the Act. Whether this is so is a critical issue in this interlocutory phase of litigation. Section 170ML provides:

"(1) This section identifies certain action (protected action) to which the provisions in section 170MT (which confers certain legal immunity on protected action) are to apply.

(a) an organisation of employees that is a negotiating party; or

(b) a member of such an organisation who is employed by the employer; or

(c) an officer or employee of such an organisation acting in that capacity; or

(e) supporting or advancing claims made in respect of the proposed agreement; or

to organise or engage in industrial action directly against the employer and, if the organisation, member, officer or employee does so, the organising of, or engaging in, that industrial action is protected action."

It is not disputed that the TWU is "a negotiating party" and that "a bargaining period" currently exists within s 170ML(2) in so far as the TWU has effectively initiated a bargaining period pursuant to s 170MI(2) by giving the necessary notices to the seven major operators I have mentioned. The Union, as I have said, wants to negotiate workplace agreements of the kind referred to in Part VIB of the Act with each of these seven operators which will cover their employees.

"Subject to subsection (3), no action lies under any law (whether written or unwritten) in force in a state or territory in respect of any industrial action that is protected action unless the industrial action has involved or is likely to involve:

(b) wilful or reckless destruction of, or damage to, property; or

(c) the unlawful taking, keeping or use of property."

Save for the limitation contained in s 170MT(2) itself, the sub-section immunises the TWU, and its officials, from liability with respect to the various causes of action the applicants rely on to justify interlocutory relief, in so far as the TWU and its officials are engaging in "protected action" within s 170ML.

So far as the evidence before me shows, the only action taken against the applicants by any employees of any other transport company is action of a kind also taken by TWU officials which two employees of two of the major companies have taken to give effect to TWU intentions. Both these employees are delegates to the TWU; but those two employees can rely on the action taken by the TWU to establish a bargaining period by serving the notices it has given under s 170MI(2) to the seven major operators in order to make their own activities, in this regard, "protected action". See s 170ML(2)(b).

There is not a great deal of dispute as to the facts of central importance, so far as the material before me is concerned. The applicants contended that the action by the TWU, its officials and the two Union delegates employed by NQX and United Transport, of which they complain, cannot be "protected action". The applicants say, firstly, that it is common ground that the TWU has not yet sought to negotiate any agreement with the applicants and has not taken any action required by s 170MI to bring into existence a bargaining period, as between the Union and the applicants. Secondly, the applicants say that, while the Union may be entitled to engage in protected action with respect to the seven major employers, that entitlement is limited by s 170ML(2) to an entitlement "to organise or engage in industrial action directly against the employer", that is, directly against the seven major employers. The applicants also contend that Division 8 of Part VIB of the Act deals with the manner by which parties can negotiate certified agreements. As a matter of construction, certified agreements can only be between unions or, in certain cases, employees, on the one side, and employers, on the other. The purpose of the "protected action" is to allow for enterprise bargaining to take place between a union and a particular employer and for the union to take industrial action, in order to support or advance claims made in respect of the agreement it proposes that that employer should enter into. If a union does that, then such action is protected. But the Division should not be read, so the applicants say, so as to afford protection to action taken by a union directly against persons other than the employer with whom it is seeking to negotiate a Part VIB agreement on behalf of its employees. The applicants say that to hold otherwise would render nugatory the general prohibition in s 170NC(1), against industrial action taken or threatened, in order to coerce another to enter into or vary an agreement within Division 2 or 3 of Part VIB, from which general prohibition "protected action" is, by s 170NC(2), accepted.

The respondents, on the other hand, contend that they are not taking any industrial action against the applicants. They submit that the action taken by the TWU with respect to the major employers is "protected action", taken for the purpose of supporting or advancing claims made by the Union in respect of proposed certified agreements with each of the seven major employers. They say that the action taken by the TWU and its members consists of a failure or a refusal to perform the work of loading, or unloading, some trucks which attend premises occupied by the major employers. The alleged conduct of the TWU is all conduct, so it is said, which, even if proved, consists of protected industrial action taken against the major employers by employees of the major employers and by TWU officials.

The respondents refer to the definition of "industrial action" in s 4 of the Act and to the nature of the businesses of the seven major transport operators. It is said that for TWU officials to intervene to prevent the applicants loading or unloading goods at terminals operated by any of the seven major transport companies, and even to prevent the applicants' trucks entering those terminals, is nothing other than industrial action taken by those officials "directly" against each of the seven major transport companies, which is, in the circumstances here prevailing, "protected action". The TWU and its officials are entitled, so it is said, under the "protected action" provisions of s 170ML, to interfere with the business operations of the seven major transport companies.

In my opinion, they do not, in doing that, lose the immunity conferred by s 170MT(2) because the nature of the seven major operators' businesses is such that "protected action" against them inevitably interferes with the businesses of others, such as the applicants.

In my opinion, so long as there is a bargaining period within s 170MI(2) in existence between a union that wants to negotiate an agreement within Division 2 or 3 of Part VIB with respect to employees of a particular employer, any industrial action taken by such a union and its officials during that bargaining period directly against the particular employer with whom the union wants to negotiate the agreement and to whom it has given a notice under s 170MI(2), for the purpose of supporting or advancing claims made in respect of the proposed agreement, will be "protected action" entitled to the immunity conferred by s 170MT(2). Such industrial action will, in my opinion, continue to have this protected status, even though a direct or indirect consequence of the action is to harm or otherwise interfere with the lawful business, or other activities, of persons other than the only employer to whom the union has given the s 170MI notice.

It is inevitable, in my view, that action engaged in directly by unions against very many kinds of employer will, by disrupting the business operations of those employers, also have a direct or indirect disruptive impact on the business and other activities of third parties. The businesses run by the seven major transport companies illustrate the points. The disruption by union action designed to prevent the loading or unloading of trucks at transport terminals operated by the major transport companies is well able to be described as industrial action taken "directly" against those major companies. On the evidence, an essential aspect of the major companies' operations is to provide terminal facilities to third party carriers, such as the applicants, so that goods carried to such a terminal by the major company operating it or by the third party carrier under contract to the major company or by third party carriers acting for the consignors of the goods can be collected from the terminal for delivery to the consignee of the goods, either by the terminal operator or by a third party carrier of either of the two classes I have just mentioned.

Action that prevents the removal by third party carriers of goods from such a terminal is well able, in my opinion, to be described as action taken "directly" against the terminal operator, even though it may also directly interfere with the third party carriers' own operations and directly or indirectly interfere also with the operations of the consignor and the consignee of the goods whose delivery is delayed by such action.

To limit s 170ML(2) to protecting only action that does not directly interfere with the activities of third parties, even though it can be described as action taken directly against the employer with respect to whom the union has invoked the negotiating procedures provided for by Division 8 of Part VIB, would be to restrict unjustifiably the scope of the clear words of that sub-section and thus the scope of the immunity provided by s 170MT(2) for certain classes of industrial action.

However, third parties like the applicants, caught up in action by a union which is said to be "protected action" with respect to a particular employer, are not necessarily without a remedy.

Industrial action will only be "protected action" within s 170ML if, among other things, it is engaged in by a union which is negotiating a proposed agreement with a particular employer and if the action is also engaged in "for the purpose of" advancing the union's claims with respect to the particular proposed agreement with that employer.

The meaning of the phrase "for the purpose of" in this context raises an issue of statutory interpretation of relevance to the resolution of this application. Whether industrial action said to be "protected action" is action engaged in by a union "directly" against the relevant employer is always a question of fact. Whether industrial action engaged in by a union directly against the particular employer with respect to whom the union has invoked the statutory negotiating procedure is also engaged in "for the purpose of" supporting claims made by the union against that particular employer in respect of the proposed agreement necessarily involves another question of fact.

As to the construction question, I consider that it is the subjective purpose of the union, that is, its actual objective or intention, that is referred to in s 170ML(2), although the ascertainment of that purpose can require a consideration of all relevant facts and circumstances. See Hughes v Western Australian Cricket Association Incorporated (1988) 19 FCR 10 at 37-38.

Only if action is engaged in "for the purpose of" advancing negotiations for a Part VIB agreement is it protected. There is nothing in the Workplace Relations Act that declares it to be sufficient to attract the immunity s 170MT(2) confers that industrial action be undertaken for a variety of different purposes that include the particular purpose specified in s 170ML(2).

Division 9 of Part VIB is confined to a provision which, by s 170NC(1), imposes a general prohibition on the use of industrial action to coerce employees or employers into entering into or varying agreements of the kind provided for by Part VIB. The legislative intent is that the whole bargaining process should be a voluntary one on both sides. The only exception to this general prohibition is in respect of protected action within the meaning of Division 8: see s 170NC(2).

Industrial action, as defined in s 4 of the Act, will generally be unlawful. Industrial action by unions and employees will generally involve breaches by employees of the terms of their contracts of employment (which include any award provisions incorporated into those contracts) and may also often involve unlawful conduct by unions, where they direct such action by employee-members. That sort of action will generally be actionable by the employer who is its target and, according to the circumstances, it may also be actionable by third parties harmed by that action. Section 170ML(2) makes lawful industrial action that is otherwise unlawful, but only in a special context and only in so far as it is engaged in for a particular purpose. If, however, a particular form of action is engaged in by a union for such a purpose as well as other different purposes, s 170ML does not, in my opinion, have to be read as legitimising that action. The industrial action in question may only have taken the form it did because the union decided to try to kill two birds with the one stone that consists of a particular body of industrial action. In my opinion, s 170ML(2) only makes it lawful for the union to try to kill with that particular stone the one bird which the section itself identifies as the only legitimate target.

It is, in my opinion, unlikely that s 170ML(2) was intended to operate so as to legitimise industrial action engaged in for purposes other than that particular purpose, and thus prima facie unlawful industrial action, because that action was also undertaken for the protected purpose. Otherwise the position would be that so long as a union was able to identify action which it could fairly engage in for the purpose of advancing its claims with respect to a proposed certified agreement that it was negotiating with a particular employer, but which action would cause harm to persons other than that employer and so advance other union purposes, the union could use s 170ML(2) to give it complete immunity from liability in respect of that action. Yet the sub-section was intended only to protect the union where it takes action in the context of negotiating a Division 2 or 3 of Part VIB agreement, and then only where it takes that action for the purpose of advancing specific negotiations.

It is one thing to accept that a union should have immunity from liability in respect of industrial action taken in that context and for the prescribed purpose, where it inevitably will harm others because of the nature of the business of the negotiating employer against whom the union directs that action. But I can see no justification in the legislation for reading it as giving a union the opportunity to obtain a wider immunity with respect to prima facie unlawful industrial action by a form of action that it can legitimately engage in for the purpose of pressuring a particular employer in the context of negotiations for a Part VIB agreement, but which will enable it to also achieve a purpose different from that which it is required to have, as a condition of obtaining the statutory immunity from liability.

In the context of Division 8, full weight should, I think, be given to the definite article in the phrase "for the purpose of" in s 170ML(2) when the true meaning of that provision is sought. I would read s 170ML(2) as making industrial action "protected action" only if, among other things, it is engaged in by the negotiating union for the purpose of supporting or advancing the relevant claims, and for no other purpose.

The existence of other purposes which can be characterised as of de minimus significance in all of the circumstances may not disqualify action from being "protected action". But if industrial action is engaged in for multiple purposes, that one of those purposes is of the kind referred to in s 170ML(2) will not, in my opinion, be sufficient to attract the immunity the statute confers on protected action to that industrial action.

To hold otherwise would be to confer on a union a large measure of discretion to fix where it pleased the boundaries within which it could take lawful industrial action against a range of persons that would otherwise be unlawful so long as a bargaining period with respect to a proposed work place agreement with one particular employer was current at the relevant time. That is, in my view, inconsistent with the intention of Division 8, which is to legitimise industrial action, subject to detailed controls and only as an encouragement to the setting of conditions of employment by specific agreements of the kind provided for by Divisions 2 and 3 of Part VIB.

It follows that if s 170ML(2) should be construed as conferring immunity on industrial action taken by a union during a bargaining period initiated by it with respect to an agreement it proposes that a particular employer should enter into only if that action is engaged in by the union for the sole purpose, de minimus considerations apart, of advancing its claims against the employer with respect to that proposed agreement, proof that the union is engaging in that action, not only for that purpose, but for another different purpose, will serve to deny the entirety of the action taken by the union any claim to be regarded as protected action. Multiple purposes for industrial action will, in my opinion, take that action outside the scope of "protected action" as against anyone affected by that action.

The industrial action the TWU is currently taking against the major transport operators to advance its new 10 per cent claim is described by Mr Allan, Federal Secretary of the TWU. According to Mr Allan, in early June 1997 the TWU:

" decided that the first form of industrial action which would be taken against the major employers to advance the 10 per cent claim would be a failure or refusal to load, unload or otherwise deal with trucks or other vehicles where the driver of that truck or other vehicle was not receiving what the union deemed to be a fair rate of pay. A fair rate of pay for these purposes was determined to be a rate of remuneration which reflected the TWU 15 per cent wages claim rates."

Mr Allen goes on to say that this action is not confined to union members refusing to deal with goods carried by the major transport operators, it extends to action taken with respect to goods carried by third parties, such as the applicants, where the third party employed driver is not receiving what the union deems to be a fair rate of pay.

It is difficult to see how action in the form of a refusal, at the behest of the TWU, by employees of the major operators to deal with vehicles operated by third parties such as the applicants, who are not involved in any negotiation with the Union for new Part VIB agreements, that is engaged in because the third party's drivers are not receiving wages acceptable to the TWU, can be said to be action engaged in for the sole purpose of advancing the Union's claims with respect to the agreements it is proposing that the major operators should enter into. That such action may impact directly on the major operators and may also be engaged in by the TWU for the purpose of advancing its claims with respect to the agreements it is proposing that those major operators should enter into cannot nullify the significance of the TWU's actions being engaged in for a purpose outside that referred to in s 170ML(2).

If s 170ML(2) should be interpreted in the way I have referred to, the applicants have, on the largely undisputed material before me, a strongly arguable case that no action that the TWU and its officials are engaging in of any of the kinds mentioned in the evidence before me is "protected action" within s 170ML.

This is so even though I would have no difficulty in accepting that one of the TWU's several purposes in engaging in such action is to advance its campaign against the seven major operators, whom it has made negotiating parties pursuant to s 170MI, for agreements that will govern relationships between those seven major operators and their own employees. The TWU's evidence is to the effect that it is negotiating bona fide with the major employers, some of whom may not be responding with equal good faith. The TWU evidence is also to the effect that the industrial action it is taking, including that of which the applicants make complaint, is now having a substantial impact on some, at least, of the more intransigent major employers and may, if continued, bring them to negotiate with respect to the proposed agreements in a more conciliatory frame of mind. The Union's evidence is also that its current action is less disruptive to third parties than would be other action it is lawfully entitled to take against the major operators.

Even if all this is true, that cannot give the action which the TWU is taking against those major operators the immunity it might well have if the TWU were engaging in it for the sole purpose of advancing its claims against those major operators that they enter into agreements of a kind proposed by the TWU.

It is necessary to explain why the applicants have, in my view, a strongly arguable case that the TWU is engaging in the action of which it complains for dual purposes and so cannot be protected from the applicants' claims in this litigation by s 170MT(2).

Mr Williams, the second respondent and the Queensland Branch Secretary of the TWU, describes a meeting of 100 or so TWU delegates in Brisbane on 5 June 1997 at which he told them of the TWU's decision to pursue by industrial action the 10 per cent claim initially against the major operators. He said steps would then be taken to secure agreement with other employers. He emphasised that the action planned against the major operators would be taken as "protected action", in what he said to the delegates. He added:

"I told the meeting that it was proposed that the industrial action which the union would initially organise would be that employees of the major employers would refuse to load or unload trucks where the driver of such a truck was not receiving the union rate (ie 11 per cent above the award rate). I explained that the reason that the union had decided on this industrial action was to pursue the 10 per cent claim. I said that the major employers had told the union in discussions that they could not afford to pay the claim because their competitors were undercutting them. I said that this was a hypocritical position on the part of the major employers because the gave work which could be done by their own employees to companies who were not paying the union rate. At the delegates' meeting a TWU leaflet was distributed to all delegates."

Mr Williams exhibits a copy of that leaflet to his affidavit and continues:

"It was emphasised to all delegates at the meeting that industrial action would only be taken by employees of those companies against whom we were initially pursuing the 10 per cent claim."

"over 200 employees. Of these just over 100 are drivers. Some of the drivers are members of the TWU. At present, approximately 50 per cent of the drivers are employed under the terms of an enterprise agreement. The others are employed under the Transport Workers Award 1983".

"However, the second applicant has negotiated Australian workplace agreements with approximately 50 of its drivers. None of these agreements has yet been formally approved, but we have moved a considerable way towards achieving completed agreement. In the case of these 50 agreements a satisfactory and amicable agreement has been reached between the company and its employees."

Mr Forsyth learned of possible industrial trouble soon after the TWU delegates' meeting of 5 June last. He spoke to Mr Williams and describes what was said:

"Mr Williams then spoke to me and told me that there would be problems on Friday 13 June for any company which did not have an enterprise agreement negotiated through the TWU. He also told me that all employees were required to receive the 'union rate'. When I inquired as to what the union rate was, he replied with words to the effect that it was 15 per cent above the award.

I told Mr Williams that I had negotiated agreements with different sections of my workforce since the enterprise agreement had expired in October last year; most of these employees had signed the agreements, and the agreements were being filed with the employment advocate. Mr Williams replied that as we had not negotiated the agreements with the union, the union would not recognise those agreements. I asked him to acknowledge that our employees were entitled to make their own choices and that he would be going against the wishes of his own members if arrangements were made to refuse to load our company vehicles because of these agreements. He would not accept what I was saying, and suggested we wait to see what happened on Friday."

Mr Williams' account does not materially differ. In particular, he confirms that he rejected the workplace agreements mentioned by Mr Forsyth as not acceptable to the TWU because the TWU was given no real opportunity to take part in the relevant negotiations. Mr Williams also confirms telling Mr Forsyth that the industrial action the TWU was taking against the major operators with respect to the 10 per cent claim would involve refusing to deal with any vehicles whose drivers were "not receiving the union rate which had been established in enterprise agreements that the union had negotiated". Mr Williams also said he told Mr Forsyth that the union rate was that which had been achieved by the TWU in its old 15 per cent claim.

The evidence is that the seven major transport operators who are negotiating parties vis-a-vis the TWU with respect to the agreements that the TWU proposes each should enter into within Part VIB of the Act are currently paying wage rates which are acceptable to the TWU, although the TWU's 10 per cent claim now directed against these major operators is designed to achieve, by a combination of negotiations and industrial action within Division 8 of Part VIB, increased rates for the major operators' employees. The applicants, however, are paying lower rates, some of which were struck in agreements recently made between the applicants and some of their drivers, without any TWU involvement.

There is in evidence a TWU circular recently distributed by the Union to its members. The State Manager of United Transport Services, Mr Eden, was given a copy of this by a TWU delegate employed at United Transport Services' Rocklea terminal on 13 June 1997. The list, which is on TWU letterhead, is headed "10 per cent fair wages campaign. No union rate no entry". It states:

"Below is a list of companies who pay the current union rate and a list of those that don't. TWU members should not load or unload the companies who don't pay the union rate."

There are two columns, one head "union rate" and one headed "no union rate". In the first column are listed the employers who are paying the union rate. This column includes all the seven major companies I have referred to. In the second column of companies who are not paying the union rate are listed 72 other transport operators, including the applicants.

The TWU has not commented in its evidence on this document. It is, in my opinion, strong evidence, when added to the evidence of what has recently occurred at some of the major operators' terminals with respect to the applicants' vehicles and to which I will refer, that the TWU is engaging in the industrial action of which the applicants complain for a purpose separate and distinct from its other purpose of seeking to persuade the seven major companies to meet its demands for new Part VIB agreements.

The applicants' evidence describes a series of incidents, commencing on 13 June 1997, in which TWU officials, including the third, fourth and fifth respondents, have intervened at terminals operated by NQX, John Bain Transport and United Transport Services, to prevent the applicants' vehicles and drivers loading and unloading goods, including containers. Sometimes this intervention has taken the form of excluding the applicants' vehicles from entry to the terminal. It is enough to refer to one of these incidents.

There is evidence in the applicants' case that the third and fourth respondents told Mr Eden on 16 June last that they would prevent one of the applicants' drivers dealing with goods on one of the applicants' vehicles there at the United Transport Services terminal and that they would call out all the United Transport Services' workers there and shut the terminal down if Mr Eden insisted that the applicants' driver proceed to unload this vehicle. Mr Eden said he had this exchange with the third and fourth respondents:

"I had no doubt that the threat was going to be carried out if I directed FH [that is, the applicants] to continue with their work, and that the union would stop all work on the site. I asked Walker and Garrett how it was proposed that I should continue with the work and they replied that I should 'pay somebody who pays the approved rate'. They suggested McMillan's Transport would be a suitable organisation."

McMillans, of course, is on the union list I have referred to as one of the companies paying the union rate. The evidence of the third and fourth respondents confirms in material respects what Mr Eden has to say.

There is a substantial body of evidence with respect to which there is little dispute, but which fairly leaves it open to the applicants to argue that, in addition to taking the action in question as part of its campaign to persuade the major companies to enter into new agreements which the TWU proposes should cover the major operators' employees, the TWU is also taking action for the specific purpose of coercing companies other than the seven major companies, and who include the applicants, into paying wage rates over and above those that they are currently paying and which the TWU is determined that they should pay. The evidence shows, moreover, that the latter is a purpose of very considerable importance to the TWU. The applicants therefore have a strong case, on all the evidence before me, that this is the position.

This means that they have a strong arguable case that the TWU is currently engaging in action that is not "protected action" within ss 170ML and 170MT of the Act and is, instead, action that contravenes s 45D the Trade Practices Act, in so far as the various respondents are engaging, in concert with each other, in conduct that is hindering, if not preventing altogether, the supply by the first applicant of carrying and associated services to NQX, United Transport Services and John Bain Transport and also hindering the supply by the second applicant to the first applicant of driver services.

The evidence is such as to show a real likelihood that the respondents will continue to act in this way to expand the range of their activities that are disruptive of the first and second applicants' operations to include the applicants' activities at terminals operated by other transport companies, in addition to the three companies I have referred to. This evidence, together with the evidence that part of the first applicant's activities involve the movement of containers committed to interstate and international trade, shows also that the applicants have a strong arguable case that the respondents are also infringing s 45DB the Trade Practices Act. For much of the same reasons, I consider that the applicants have a strong arguable case that the respondents are committing the common law torts that I have referred to.

I turn now to the balance of convenience. I accept that the applicants' business has already been disrupted to a significant extent by the action of the respondents and that such disruption is likely to become more extensive if an injunction is not issued. This is particularly so, in view of the evidence that the TWU is specifically targeting transport operators like the applicants, who are paying wage rates unacceptable to the TWU, including wages agreed between operators like the applicants and their employees, without any TWU involvement.

The applicants describe the harm they will suffer if the injunction is refused in this way: they contend that if the injunction does not issue they will be put in breach of contract with their customers and will be subject to possible damages claims and their business reputation and goodwill will inevitably suffer. I am not persuaded that there is an appreciable risk of this occurring. There is nothing, other than the fact that the applicants' business is being disrupted by TWU activity in the way I have described, to support this submission. No attempt has been made to adduce evidence that might suggest that that of which the applicants complain is a real, as opposed to a theoretical, possibility. In the absence of evidence supporting the proposition, I do not accept that a disruption to the applicants' ability to service its customers, due to union action taken against them, will damage the goodwill of the applicants' business.

On the other hand, the respondents contend that an injunction will delay the successful conclusion of the TWU's campaign for Part VIB agreements with the seven major transport operators. Delay, it is said, will mean that the very many employees of those major operators will lose the wage increases they might have expected during the period of that delay, without any hope of ever recovering such losses. It is said that the campaign is already having an effect on various of the major operators and that it can be expected that this pressure may conduce to a successful resolution of the campaign. I accept that it is relevant to have regard to the impact an interlocutory injunction will have on third parties. But it is, in my opinion, quite speculative as to whether an injunction will delay the consummation of the agreements in question, especially since the TWU also contends that, even if the injunctions issue now, it will still be free to engage in lawful industrial action against the major operators, even more disruptive than that now being taken and thus likely to produce more effective results than the Union's current action.

As I have said, the respondents also contend that, if an injunction issues now, the TWU will be lawfully entitled to take other action with respect to the seven major operators which will be "protected action" within s 170ML that is likely to be much more disruptive to those companies, to the applicants and to other third party carriers and many others than the action the TWU is currently taking. Mr Allan says:

"If an injunction in this matter were granted the TWU would have little choice but to authorise more severe forms of industrial action against the major employers. If the existing industrial action is restrained the TWU would seek to organise 24 or 48 hour stoppages of work at each of the major employers premises. Such stoppages of work would, presumably, disrupt the business of the applicants at least as much as the current industrial action is alleged to be disrupting their businesses but would in addition cause significant disruption to the business of many other transport companies whose businesses are not currently being disrupted. Such action would be far more disruptive to the general public and customers of the major employers."

There is, I think, force in the submission made by the TWU in reliance on this evidence. It would, I think, be quite easy for the TWU to change its tactics to direct industrial action against the seven major operators for the sole purpose of pressuring them to agree to the proposed Part VIB agreements that are the subject of current negotiations. All it would have to do would be to resolve to drop action that is currently being taken, including the action that is being taken against the transport companies other than the seven major companies and which include the applicants, in order to pressure them into paying wage rates acceptable to the TWU and to resolve, instead, to limit industrial action to persuading the seven major companies to agree to the proposed Part VIB agreements. It would then be open to the TWU to engage in more disruptive action than that currently engaged in in ways which would inevitably cause, it appears to me, significantly more harm to the applicants as well as the public than that to which they are currently exposed.

It thus may well be open to the TWU, by perfectly lawful action, to render futile the injunction sought, if it were to be granted.

Whether an injunction is granted or refused now may therefore have little effect on the TWU's future actions. I have said that I think that the applicants have a strong case that the TWU's current actions are unlawful. It is distasteful to permit prima facie unlawful action to continue. It would be open to the Court to grant the injunction sought and leave it to the TWU to so re-cast its planned activities to bring them within the law than to call for the injunction to be dissolved. But since the close of argument on Saturday, the TWU has proffered an undertaking to avoid the issue of an injunction. I will make this undertaking exhibit 1.

The undertaking would ensure that the TWU would be bound not to single out the applicants for disruptive action designed to force them to increase their wage rates to meet the TWU demands. The TWU cannot lawfully do that unless it first invokes the procedures in Division 8 of Part VIB of the Act specifically against the applicants. But for the reasons given, the TWU can, I think, readily re-organise its activities to entitle it lawfully to disrupt the applicants' business to the same or a greater extent than it is doing at present, so long as it ensures that any future industrial action it takes is in furtherance of its campaign to pressure the seven major companies into agreeing to the TWU's proposed Part VIB agreements. The proffered undertaking therefore goes a good part of the way to securing to the applicants the most that an injunction could, for practical purposes, achieve for them on anything other than a most transitory basis.

If this undertaking is still offered, I would not grant the injunction sought having regard, firstly, to my doubts that the applicants will suffer harm, not reasonably compensable in damages even though the assessment of those damages may well be a difficult one, and, secondly, because I think that, if the injunction sought were granted, the TWU would remain free to promptly take lawful industrial action against the seven major transport companies that would be more disruptive not only of their businesses but also of the applicants' businesses than is the action currently being taken.

I certify that this and the preceding 25 pages are a true copy of the reasons for judgment herein of the Honourable Justice Drummond. Associate: Date: 24 June 1997 Counsel for the applicants: G C Martin Solicitor for the applicants: Allen Allen & Hemsley Solicitor for the respondents: Transport Workers' Union of Australia Date of hearing: 21 June 1997