Mudginberry Station Pty Ltd v. Australasian Meat Industry Employees Union & Ors [1985] FCA 237

_ Order that until the final determination of this proceeding or further order, whichever should first occur, the first, second, third, fourth and fifth respondents and each of them be restrained by themselves, their servants and agents from imposing, maintaining, giving effect to or enforcing any ban on the provision of goods or services to

the applicant at the Mudginberri Abattoirs ("the Abattoirs")

or from setting up or maintaining any picket line at or in

the vicinity of the Abattoirs where any such ban or picket line has the purpose and would have or be likely to have the effect of preventing or hindering the ordinary day-to-day activities and operations of the Abattoirs' business

(a) the carrying out of works of maintenance and repair

(b) the delivery of any livestock for slaughter and processing; (Go) the access to and egress from the Abattoirs of any

person or persons providing goods or services to the Abattoirs or otherwise involved or engaged in its ordinary day-to-day activities in the conduct of its business as an

export meat processing works and an abattoirs licensed to

(d) the egress from the Abattoirs of any product of the Abattoirs: (é) the sale of any processed products or by-products

3. Reserve liberty to any of the respondents enjoined by order 2 to apply on such notice as a judge shall allow to

4, Order that the final hearing of the proceeding be expedited. Se Order that, as against the respondents enjoined by

order 2, the applicant's costs of this interlocutory

application be applicant's costs in the proceeding.

G. Order that the application for interlocutory relief

as against the sixth, seventh and eighth respondents be stood over generally with all costs in this connection reserved and liberty reserved to the applicant to restore

this application on such notice as a judge shall allow.

Note: Settlement and entry of orders is dealt with in

BETWEEN : MUDGINBERRI STATION PTY. LIMITED Applicant AND: THE AUSTRALASTAN MEAT INDUSTRY

AND: JACK O'TOOLE Second Respondent AND: TREVOR SURPLICE Third Respondent AND: DICK ANNEAR Fourth Respondent AND: PAT ROUGHAN Fifth Respondent AND: MEAT INSPECTORS ASSOCIATION Sixth Respondent AND: GORDON McCOLL Seventh Respondent AND: ALEX THOMPSON

REASONS FOR JUDGMENT (ON APPLICATION FOR INTERLOCUTORY RELIEF)

injunctions against the respondents to restrain alleged contraventions of s.45D of the Trade Practices Act, 1974 ("the Act").

The applicant conductg an abattoir and export meat processing works at Mudginberri near Jabiru, approximately 200 kilometres east of Darwin. Its operations include the slaughter, boning, sale and export of cattle and buffalo. The applicant holds a statutory licence under the relevant

legislation permitting it, subject to conditions, to process

The applicant alleges that since 10 May 1985, its abattoir has been the subject of a secondary boycott in the form of a picket organized by the first respondent, The Australasian Meat Industry Employees Union ("AMIEU"), an organization of employees registered under the Conciliation

and Arbitration Act, 1904. It further alleges that the

second, third, fourth and fifth respondents, who are officers of AMIEU, are participating in the picket. The second respondent, Mr. Jack O'Toole, 1s the federal secretary of AMIEU. The third respondent, Mr. Trevor Surplice, is an organizer for AMIEU based in the Northern Territory. The fourth respondent, Mr. Dick Annear, is the federal president of AMIEU and the secretary of its

Queensland branch. The fifth respondent, Mr. Pat Roughan,

The applicant further claims that the sixth respondent, the Meat Inspectors Association ("MIA"), another registered organization of employees, is participating in the boycott. The seventh respondent, Mr. Gordon McColl, is the general secretary of MIA. Mr. Alex Thompson, the eighth respondent, is its assistant general secretary. The applicant contends that the seventh and eighth respondents

In its operations, which are confined to the ary season (from about the middle of April until about the middle of November), the applicant usually employs some 38 workers. The applicant has carried on its business since 1973 and in the period prior to 1984 about 25 of the applicant's staff were members of AMIEU. Their present membership status is a contentious matter to be dealt with later but, according to Mr. John David Pendarvis. the applicant's managing director, the members of AMIEU employed by the applicant were expelled from their union because of their unwillingness to join in an industrial ban then placed upon the applicant by AMIEU. The present dispute has a

considerable history to which reference should be made.

In June 1984, AMIEU set up a picket line at the entrance of the applicant's premises. Because of the picket, members of the MIA refused to enter the premises to

perform their inspection duties and as a result. production

at the applicant's facility then ceased. As a consequence of this activity, orders under s.45D of the Act were sought and obtained from this Court (Forster, J.) in July 1984. Before approaching the Court, Mr. Pendarvis had explored with Mr. O'Toole the possibility of resolution of the matter. Upon enquiring what the applicant could do to resolve the situation. Mr. Pendarvis was informed that the applicant must "accept the tally system as prescribed in the Queensland Meat Industry Award". Mr. Pendarvis responded that the applicant's plant was not physically suited to that award and enquired as to any alternatives which might be avallable. Mr. O'Toole's reply was that if the applicant "can't accept the Queensland Meat Industry Award then (it)

Some time after the making of orders by Forster, J. on 19 July 1984, the picket line was disbanded and the applicant's operations resumed without interruption until the end of the season although an industrial dispute, in particular, a claim by AMIEU that the Queensland award apply in the Territory, was still unresolved. In September 1984, the Full Bench of the Conciltation and Arbitration Commission heard an application by AMIEU for an award to cover employees in the Northern Territory. In its submissions to the Commission. AMIEU opposed the system adopted by the applicant and others in the Territory for

many years whereby employees were remunerated according to

productivity. According to Mr. Pendarvis, at an adjournment

of the Commission hearing, Mr. Annear made his intentions clear so far as the applicant was concerned, by shouting at

"You... may be confident now but by next year you will all be out of ... business

-- You have had it your way in the past but we are going to close you down."

On 5 September 1984, the Full Bench of the Commission, having said that it was not satisfied that the present contract system really gave employees proper award coverage and, therefore, a contract system would be permitted but only insofar as payment for actual work done was concerned, indicated that Mr. Commissioner McKenzie would be available to discuss with the parties the details of the award provisions which should be made; and that in the event of disagreement, the Commissioner was authorised to determine appropriate award provisions. The Commissioner met with the parties and, in the light of their inability to reach agreement, on 29 April 1985 made an award based

primarily on the provisions of Part I of the Federal Meat

enabling the use, on certain conditions. of systems of

payment by results was included ({(c1,33). Under that

provision, such a system shall enable a weekly employee to earn no less for the work actually performed than the remuneration that employee is entitled to receive under the award plus 20% (cl1.33(a)(i)). The terms of any such system shall be established by negotiation and agreement between the employer and the majority of employees concerned or

their nominated representatives (cl.33(c)). The award is to

Shortly after the making of the award, the applicant negotiated a "payment of results" system with its employees in accordance with cl.33 thereof. Messrs. Tye, Doyle and Scofield represented their fellow employees for this purpose. On 6 May, an agreement was :cached in accordance with cl.33 for a "payment by results" scheme based on the number of cartons produced provided that the minimum rate of pay would not be less than the weekly rate of pay prescribed by cl.7 of the award plus 20 per centum; provision was also made for holiday and sick pay entitlements. The agreement was reduced to writing and

executed by each employee on 6 May or shortly thereafter.

At about this time. Mr. Surplice informed Mr. Pendarvis, in the context of a discussion concerning the award, in particular cl.33, that AMIEU had purported to change its rules s0 that only AMIEU could negotiate on

behalf of employees. Upon Mr. Pendavis' querying whether

AMIEU would reinstate the applicant's employees who had

apparently been expelled in 1984, Mr. Surplice said that this was a matter for the national executive of the Union. (On other occasions. Mr. Surplice took a different line with Mr. Pendarvis, questioning whether these employees had been validly expelled at all since, so far as the evidence goes,

no charges had been laid against them for this purpose. Mr.

On 9 May 1985, the applicant commenced its operations for the 1985 season. On 10 May, the picket was established and remains in force. The identity of those maintaining the picket line is arquably a matter of some significance to which I will return later. It is sufficient for present purposes to note that it has consisted of a fluctuating body of persons, all officers or members of AMIEU but, with one possible exception, Mr. Liddy (whose position calls for speciai consideration in the context of Mr. Roughan's evidence, to be dealt with later), no employee of the applicant has participated in the boycott which has

shut down the applicant's operations for the past month.

According to Mr. Pendarvis, on 10 May Mr. Roughan explained to him that the picket had been imposed because the employees, rather than AMIEU on their behalf, had negotiated their agreements. Mr. Roughan informed Mr.

Fendarvis that AMIEU aimed to have the Western Australian

tally system introduced into every abattoir in the Territory. On 12 May, a similar discussion took place between Mr. Pendarvis and Messrs. Roughan and Surplice. It was made clear that the picket would remain until an

agreement was reached between the applicant and AMIEU.

At this time, with the applicant's permission, Messrs. Roughan and Surplice addressed meetings of its employees at the abattoir. According to Mr. Pendarvis, on each such occasion, the meeting conveyed a negative response

With the exception of his account of the role played in this dispute by Mr. Liddy, an important matter to be dealt with later, Mr. Pendarvis was not seriously challenged in cross-examination on his version of the events surrounding the imposition of the boycott. Furthermore, Mr. Pendarvis' version was at least substantially corroborated by a number of witnesses who gave evidence on affidavit but were not cross-examined by the respondents. It will suffice to outline the evidence of Mr. Stanley Colin Doyle, one of the negotiators of the agreements recently entered intc. He has been employed by the applicant as a-.meatworker for the past four years and claims to have been a member of AMIEU during that period. He recited the earlier history of the matter. commencing in July 1284 when Mr. Surplice addressed

& meeting of meatworkera at Mudginberri urging them to

strike. When dissent to that course was indicated by sone of those present, Mr. Surplice responded that if they did not strike. the union would picket the abattoir and thus prevent it from operating. According to Mr. Doyle, Mr. Surplice addressed another meeting of the applicant's employees in September 1984. Mr. Doyle then reported that in the context of the application for award then pending in the Commission, the union had "lifted its bans" and the applicant had "lifted" its injunction. In response toa query, Mr. Surplice asserted that the applicant's employees

had not been expelled or suspended from mebership of the

Mr. Doyle said that on 6 May 1985, Mr. Surplice went to Mudginberri and spoke with some of the men, including himself. Mr. Surplice referred to cl.33 of the new award and said that any agreement made under that provision had to be negotiated by the union. He then suggested that some of the workers, including Mr. Doyle, were not allowed to be members of the union because they were contractors. Mr. Doyle replied that they were now employees and not contractors. Mr. Surplice's response was that Mr. Doyle had been expelled from the union in 1984. Mr. Doyle then pointed out that shortly after 6 May 1985, Messrs. Schofield. Tye and himself, as leading hands representing a number of workers at Mudginberri, negotiated "payment by

On 10 May, after the picket line had been set up, Mr. Roughan and two other AMIEU representatives addressed the meatworkers at Mudginberri. Mr. Roughan said that he had been sent by Mr. O'Toole "to see that this shed is under a tally system"; that there was going to be an agreement that followed the tally system; that any agreement which had already been negotiated should not have been negotiated - only the union had the right to negotiate the agreement. According to Mr. Doyle, Mr. Roughan addressed a further meeting of Mudginberri meatworkers on 11 May saying that "this shed will not operate under any system but a tally system". On 12 May, Messrs. Roughan and Surplice again met with the meatworkers and urged them to stop working for the applicant as their agreements were not acceptable to AMIEU - but, according to Mr. Doyle, the workers indicated that they were happy with the existing arrangements and wanted to

Mr. Doyle''s evidence was corroborated by evidence given by Mr. Raiph Charles Tye and by Mr. Syd James Scofield. They were not cross-examined. Furthermore. another 19 meatworkers gave evidence by affidavit to the effect that each of them desired to commence work with the applicant pursuant to the agreements negotiated on their behalf by Messrs. Tye, Doyle and Scofield. None of these

with Mr. Liddy after the picket had been established. According to Mr. Pendarvis, Mr. Liddy worked in the abattoir

on 9 May and also on 13 May when animals already yarded were slaughtered to prevent their further suffering. According

to Mr. Roughan, Mr. Liddy approached him on the picket line

in the evening of 11 May under the following circumstances:

"THE WITNESS: Mr Liddy asked for permission to come on the picket line for a few beers and to talk to us about what had taken place, both him and his friend. They indicated to me that they were

unhappy with events as they transpired on Mudoginberri Station after and during my

conversation with the workers, that they were not really aware up until I had discussed it with them what our proposition was and what it really meant, and that being the case they had no intention of going back and working at Mudginberri Station until such time as the dispute had been settled.

Did you say anything to Mr Liddy?---I indicated to Mr Liddy that as far as I was concerned, he was welcome on the picket line but we would like to see the workers at Mudginberri Station come and see us on the picket line because they were some of the people who were going to benefit by what we were trying to do. I asked Mr Liddy what his intentions were and he indicated that he wanted to stay on the Picket line and go back to Mudginberri station the next day, when I had arranaed another meeting, and then take up his gear and go out."

The first. second, third, fourth and fifth respondents did not seek to arque that the applicant had

farled to make out a prima facie case under s.45D(1) or

(LA). Rather, they concentrated their submissions on the

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 officers: and

(Li) an employee, or two or more employees who are employed by the one employer,

(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 (11);

On behalf of AMIEU it 1s submitted that a defence under s.45D(3}(b) has been made out because the evidence. in

particular Mr. Roughan 3 testimony as to the stance adopted

by Mr. Liddy, establishes that this 18 a case of the union and certain of its officers having, in the language of the statute, engaged in conduct in concert with an employee or employees of the applicant, the dominant purpose of which conduct was substantially related to the remuneration, conditions of employment or working conditions of the

It is settled law that in any application for interim relief, subject to the question of the balance of

convenience (which in this case is all in favour of the

applicant (see Epitoma Pty. Limited v. Australasian Meat

Industry Employees' Union (1984) 54 A.L.R. 730 at p.740)),

the test is not whether any defence has or has not been made out but whether, in that connection and generally, there is a "serious question to be tried" (see Epitoma at p.734; State of Queensland v. Australian Telecommunications

Commission, unreported, 29 March 1985, High Court of Austrailia, Gibbs. C.J. at p.2).

In my opinion, acknowledging that at the interlocutory stage it is undesirable that any attempt be made to resolve difficult questions of law or of mixed fact and law, it is apparent that a number of "serious questions" arisé im any consideration of the defence now sought to be

In the first place, a difficult question arises as to the meaning and application here of the exclusion in parenthesis at the commencement of 3.45(3)(b) - "Cand not in concert with any other person)". The evidence shows that the picket line is usually maintained by about five persong some of whom, such as Messrs. Roughan and Surplice are officers of AMIEU, but that, apart from Mr. Liddy, others are merely members of that union and not employees of the

Mr. Liddy was not called to give evidence and the applicant makes a serious challenge to the role sought to be attributed to Mr. Liddy by Mr. Roughan's evidence. It is sufficient for me to say that on the evidence as it stands, the real motives of Mr. Liddy must be regarded as an open question. I am certainly not persuaded by Mr. Roughan's evidence that the dominant purpose for which Mr. Liddy joined in the picket was substantially related to the remuneration, conditions of employment or any of the other matters specified in s.45D(3)(b) (ili). The assessment of that purpose 15 properly a matter for the trial judge at the final hearing. For this reason alone, a serious question

the gateway provided by s.45D(3)(b) is not available. It

says that apart altogether from the parenthetical exclusion already mentioned. the terms of 3.45D(3)(b)(1) themselves establish. on their true construction, that the defence is not open where the boycott is imposed by members of a union who are not its officers and who are not employed on the site the subject of a ban. If read literally, the provision is capable of that meaning. It is submitted on behalf of AMIEU) that the reference. in 3,45D(3)(b) (1) to the organization must. by implication at least, include its members. On the other hand, a specific reference is made in the provision to officers of the organization and this reference may convey the suggestion that members are to be excluded. Again, it is sufficient for present purposes to say that both points of view are arguable without

Finally, the applicant also contends that the respondents have in any event failed to establish the requisite dominant purpose specified in s.45D(3)(b)(iii). In essence, it says that the primary objective of AMIEU is to pursue a broader industrial goal across the Territory as a whole (see Ascot Cartage Contractors Pty. Limited v.

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

per Smithers. J. at p.153). Again, it will suffice for the

purposes of this application if I say that. in my opinion, a

It follows that, in my view, the applicant has shown that a serious question arises for trial on its claim for final relief. Since no counterveiling prejudice to the respondents is suggested if the picket is lifted, the balance of convenience must favour the grant of an interim

injunction against AMIEU and its respondent officers. I

Although the respondents did not suggest that it provided any answer, whether absolute or discretionary to the applicant's present claim, it should be mentioned that ° after the institution of these proceedings, AMIEU attempted to invoke the jurisdiction of the Commission, presumably with a view to calling in aid s.80AA of the Act. On 3 June, Mr. Deputy President Keogh called a conference for this purpose which was attended by representatives of the interested parties. Mr. Deputy President Keogh recommended that AMIEU "lift" their picket, but Mr. O'Toole then said that the picket would be maintained. It follows that no case has been made out pursuant to s.80AA(1) for the stay of

against the sixth, seventh and eighth respondents, It is true, as the applicant submits, that MIA, its officers and members have supported the picket at least passively by refusing to cross the picket line. It is hardly necessary to say that, unless the members of MIA perform their functions of inspection, the abattoir cannot operate. on the other hand. it is plain enough from the evidence of Mr. McColl that if AMIEU were to withdraw the picket, for whatever reason, MIA inspectors will resume their duties at the abattoir. In the circumstances, although I would not grant interim relief at this stage, it would not be appropriate to refuse the application outright. Rather, the appropriate course is to stand the applicant's application

as against those respondents over generally with liberty to

restore should the need arise (cf. The State of Queensland

v. Australian Telecommunications Commission, Supra, at p.4).

2. Order that until the final determination of this proceeding or further order. whichever should first occur. the first. second. third, fourth and fifth respondents and

each of them be restrained by themselves, their servants and

agents from imposing, maintaining, giving effect to or enforcing any ban on the provision of goods or services to the applicant at the Mudginberri Abattoirs ("the Abattoirs") or from setting up or maintaining any picket line at or in the vicinity of the Abattoirs where any such ban or picket line has the purpose and would have or be likely to have the effect of preventing or hindering the ordinary day-to-day

activities and operations of the Abattoirs' business

(b) the delivery of any livestock for slaughter and processing; (c) the access to and egress from the Abattoirs of any

person or persons providing goods or services to the Abattoirs or otherwise involved or engaged in its ordinary day-to-day activities in the conduct of its business as an export meat processing works and an abattoirs licensed to process and export

(da) the egress from the Abattoirs of any product of the

{e) the sale of any processed products or by-products

3. Reserve liberty to any of the respondents enjoined by order 2 to apply on such notice as a judge shall allow to

4, Order that the final hearing of the proceeding be expedited. 5. Order that, as against the respondents enjoined by

order 2. the applicant's costs of this interlocutory

application be applicant's costs in the proceeding.

6. Order that the application for interlocutory relief as against the sixth. seventh and eighth respondents he

stood over generally with all costs in this connection

reserved and liberty reserved to the applicant to restore

this application on such notice as a judge shall allow.

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