Wribass Pty Ltd & Swallow, John Edward & Australasian Meat Industry Employees' Union [1979] FCA 2

Federal Court of Australia|1979-02-06|Before: Smithers J

py the Act of conduct hindering on preverky RSE uy 3 : Not

and services - Pelationship of purpose to participents hours

and working conditions - Reasonable steps hy Union to prey &

Wribass Pty. Ltd. or the imposition and implementation

required by the plaintiff from S.P. Holman & Sons Ply.

inducing any person to act or acting in concert with

any other person or persons in the engaging in any such

conduct or the continuing or implementing of any such ban co

attempting so to aid, abet, connsel, procure or induce; (b) aiding, abetting, counselling, procuring, being

any person whatever to engage in conduct in concert with

plaintiff from obtaining meat products for the purpose

2, 'these proceedings so far as they relate to the questions of dumage cr penalty be adjourncd to a date to be fixed

the defendants way Lo the costs te be taxcd by the Distries Registrar of

and incidentol to tbcse proceedings and the costs in the interlocutory proceedings herein which have

This is the trial of an action in which the plaintifs

secks relief against the defen Industry Employees Usion Cthe Union) and its Tasmanian

Branch Secretary Mr. Swallow, by way of injunction and damapos. Th: relief is sought in respect of the conduct of the defendants on 24 October 1978 and thercafter in the months of October and November State dustriih Relations to Lior to protect the the industry in ge to protest and p x 1 ip. Whe Secretar it ond nas been he is directed ta teps and 1 the

action to date comes arene rary and cor continue to take and advi to nan the mem )

ever vesour ces y to safeguard our intere necessary _for the Secretary

to enyre authors that the Committe requesting 42 noon Ho

s Burnie Supermarket be QO, 1978, the date set for alow the Secretary carly resolution to

orvoblem this meeting ana we cali. _ upon the Hou iW members

2, To resolve the urpes discussions w: Ebtule Covernmicut to to protect the woweinne CONG retail section.

that these matters can only he i arena and sot by legal means,

4, This meeting declares full support towards the industrial : jded

ction are kept full hold at 2,00 Oe case of the Hobart ap Wy 41978)

So as the me mbors informed a repo : on Filany Dec meeting the date

It appeers that the ban im fact was Lifted on or about 16 November.

In connection with the ban, Mr. Swallow communicated with $

various wholesalers from whom he thought that the plaintire night endeavour to obtain alternative supplies, He informed

them of the proporced or existing ban and indicated to them

expressly or impliedly that it would not be wise for thein to

supply meat to the plaintiff witie the ban was operative.

Certain wholesalers @id secretly supply some meat to the plaintiff in the dead of the night and Ly other subterfuge, endeavouring to conceal from the Union that thoy were doing so. But the supplies so obteined by the plaintiff were Lar below

it would have been impossible for the pieinci ty to continue to

The employees of Holmanwho on October 23 voted for end acted

accordance with the ban on the plait were portly enploycc.s

usually employed in the wholesale section of Nolan's business and partly employees usually employed in the retail section, It was the employees in the wholesale section who implemented the ban.

There was 'some changeover ff between the two sections but o:

to a very Limited extent and rt sricted generally to filling in

for staff in another section who wore temporarily absent through

sickness or for some othor specigl reason, Im relation to the

arisine under s.45D(4) it is material that all the employecs

nombere of tle Union wie valed Pos sod aebed da sccordan

bin on the nilsintirtt wore cemzevecs af dhe ore enployer,

It is apparent that the ban and its implementation were in accord with Union policy and that Mr, Swallow has actec with the authority of the Union in talking steps designed to procure the imposition of the ban and to make it effective. However, Miss Hickey, counsel for the deiendants, has contended that on the

vened the provisions of s.459(41) and that the circumstances arc not

such that by reason of s.49N(5) the Union is to be deemed to have

contravened these provisions. She contended - (i) it does not appear that the purpose of 'the employecs | in imposing and firpiementing the ban was to cause |

substantial Loss and ingury to the plainbiff in its

(44) within the meaning of s.45D(4) the dominant purpose of the relevant conduct was substsntially related to the hours and conditions of wort: of the employees who compitted it in their employment with Holman cr of

(i244) thet in any event the Unien hed taken sll reasonable steps

to prevent the participants in the relevant conduct from

engaging in that conduct and sccordingly is not to be

Gecmcd to have acted in concert with the participants in

(iv) that it did not appear that Mr. Swallow had personally aided and abetted the employees in their conduct in

ation to the impositisn oie implementation of the ba;

: sae x + U .. +. de c (v) thet, in any event, Me. Swallow acted honestly and reasonaply and having regerd ta all the circuinstances of the case ought fully to be excused jrursuant to

(vi) it dees not appear thet the relevant conduct has or would be likely to cuuse such Joss and diugjury;

(wii) that the ban hed been lifted and it does not appear that

Miss Hickey submittee that oi the evidence the propor inference is thet the real purpose of the ban end its implementation was to protect the work free Saturday morning of the empil.cyees who imposed snd implemented it in their employment wie

Holman or of their fellow cepioyces end to a iesser

the free Saturday morning of empleyees engaged pencrally in the reir

butcher business in Northern Tasmania and not to injure the plaimtliy

in its business. She conten intention of the employees whe lusposed and implemented the ban the

Court should adopt an approach similar to that taken by the

the cause of action was based upon acts done in furtherance of a

'conspiracy allegedly for the mepose of injuring the plaintiffs in

secretary in connection with Unab vefusal. The Tigh Court look

the view thet although the resuil om even the intention of

the defendant in his actions was from engagement by the empluye: unless they ccuseda to support a rival Union the real purpose of the defendant

was to pro held that in view of the cxistence of that real purpose the conduct

"Tt appears n or acts dene in tu able jin such ci: conspiracy act in pur the plain true, on th: conspilrecy has slows House of Le which necessari! exercise of his enough, Wor j intendcd if

. defendants 3 ingury but of cor inp. way required for the edvenconci defendants! trade or voculjouul

Where the cause of action is not based upon an alleged combination or conspiracy to injure but von cenduct engaged in by two or more

s.450(41), the question is net what is the real vi-timate or iseina

45p(2) that a person is deemed to cnpape in conduct for &

However, suppor er Cirat contention ta a sli different way Mies Hickey said that the dnMiction of 1

damage upon the plaintir tits business was not a purpese of the participants in the relevant conduct at cu becouse their whole concern was with their hours of work, She urged that therotis 2 Gistinction to be drawn bc purpose and censegucnce soa uve any 'loss and dan suffered by the ploiutirs was but incidental to and a mere consequence of the pursuit of the one and only purpose. Miss Hickey subaitted that the protection of the

a incidentetly from it to a a defence under s.45D(4) e submissions it is conveni

acting in concert with cach other. In 5. A5D(1) the impropricty which is proscribed is engogivg iv coriduct that hinders or preven the supply or acquisition of goods and services where that conduct is engaged in for the specified purpose and doing so

in concert with another person, The critical and specivied purpose is the purpose for which the conduct itself is engaged in. Similarly in s.450(5) the dominant purpose therein specified is not the dominent purpose for which the participants may act in concert, but that limited purpose for which the conduct which hinders or prevents the supply or acquisition of goods and services is engaged in,

The conduct in which the parcvicipants engsuged was to refrain from handling meat supplies for the pleintiff, Such conduct may have been engaged in for various purposes, Clearly one such purpose and the most Limited was to cut off the

pleintiff's meat supp? damage the plaintiff's business as to force it to cease to trade in fr esh weat on Swturday mornings, Each of these

purposes was @ purpose for which the actual conduct itscli

was engaged in ¢ Of course the conduct wes engaged in in concert with the intentic of achieving something which would tend to procure the work Pree Saturday morning. In other words the motivation of the

conduct the dominant purpese of which was to force the pleintitr

to give up Saturday trading in fresh meat wos to contribute

Tt appears to me thet in the context of s.f5D the concept

conduct was capable of achieving In velation to the

conduct which prevented supplics of meat reaching the

plaintiftl that particular conmluct could achieve nothing more cessation of emaine crading in fresh meat by the

plaintitfr, conduct, The wider and ultiwcte purpose of maintaining the work free Saturday morntug was the goal which it

was hoped and divtended would be promoted by achieving the

eon lapels eM pat ee . San canduct was engaped jin,

If 8.45001) and 49N(4) eve constieucd py reference to

which are present if in relation to the identification of purposes ome is required to sech, nob thie purpose of the actual. conduct but the ultimate purpose of the participants

performing that conduct dn oo where it may be proper to infer that the exercise of the

participants taken as a whole vos to protect their hours of work in their employment AL couls hardly be said that thet

Indeed such a purpose by its very terms relates intrinsically

The submissioi was thet ones Pt epoecered that the participants

renuinely Belacved rightly or wronsty that bhe action taken 5 & 3 3

by thom wes appropriate to ward off atthreat to their hours of

those hours of work. Sho said that subject perhaps to the

element of substantiality bedug @etermined objectively the j & J y

rest of the relevant conception was to be detcnmined subjectively according to the state of mind of the particpants. If this

were the intention of the Jegislature it might wel] bave been

expressed in simple eud direct Language rather than the 'tortuous expression in the opening words of s.45D(4) (se). Hirt if the relevant purpose for both s.45D(4)(a) 3 s the purpose

of the coniuct that hinders and prevents rather than the vlidmate result thot might be promoted if that purpose were achieved, that tortuous Languoge coulaG hardly be evoided., In this

No. 81 of 1977) may wated with that used in s.$7(2)(a) as in force before it was Geended by Act No. 81 of 1977

and indeed Uhe Jainmited range of the expression in thet

araproph is apparent from the gaudenent of the majority in {> it 2

ature having put its hand to the protection of traders from condvet that hinders or prevents P

the supply to or acquisition by them of poods and services

but withholding that pr ction dn cases where the conduct

is substantially relatcd to the hours and conditions of

employment of Uie participants could not be thought

If in this case one seoks the purpose o: the Gomiuaorh purpose

Holman to the pl rf the avevoer is clear. The purpose was to

compel the plaintiff? to give up feturday Morning trading in

packaged meat anc to do so by substantial loss and damage

to its business vuelil it did. in my opinion this was the purpose of those ects end omissions of the participants whereby the meat

In the light of these considerations, Uhe submission thatthe causing of damage to the plaintiff in its business was not a purpose at alll because of the presence of the over-riding ourpose oi

om the Co-Workers protecting the hours of work of the participants/ Loses its force.

lf one is Looking only at the conecuct that hinders and prevents,

and not st the exercise in jivs tot Jtys that last menticaed

purpose is not seen, and is not present. The conception of the purpose of the conduct that hinders and prevents is narrower than the concept of the purpose of the participants! exercise considerec as a whole. In my opinion this is the cffect of s. 45) on its

In connection with the defendants! first contention it

remains to consider more particularly whether in fact the

participants refrained from hand plointiff from Holman for the purpose of causing substuntial Loss damage to the phointiff. Tnomy opiuien the answer is in the

affirmative. Miss Nickey said that the cvidence just did uot

Givelose Chat the purpose of the eeptoveon who dinosed the bun tac

jiimplemented it was to cause hess on damage to the plaintiff's

to the plaintiff, But the meu. was to put pressure on the plaintiff by depriving it during

the period of the ban of meat to sell in its business. A ben

which did not cause substantial loss and damage would be unlikely is) J

apply any pressure Ti carmot be doubted thet the purpose of the ben and the cutling of f of the plaintiff's supplics was to cause sufficicnt loss and damage to the plaintiff's business to compel it to comply with the deinands of the Union. Mr. Swallow quite fraukly agreed that in substance, the purpose of the ban was to make things uncomfortable

for the plaintiff in whatever way the ban might operate.

the plaintiff's choice, Inevitably it was Hobson's choice,

plaintiff had do give in or teke the consequences. And it is to be observed that the ban wes imposed on 25 October 1978 after Mr, Swallow informed the noeting of that date of

action already taken by him which included intimations to other wholesa lers not to supply the ploivliff when HVolman

did not. <Accerdinply the decision by the employees of

Holme not to handle meat for the plaintift was taken in

the knowledge that the plaintiff would be in difficulty in obtaining alternative supplies. It is not for the defendants to say that the relevent concuct would cause no loss or

ban would apply wntil the plaintiff gave in was one theparticipants in the conduct bad no right to impose and 'the

Levant conduck vas to Sorco the phaineirf ageg moat on Saturdvy moraings, Accordiugl

if this purpose was subete of work of the participants in the relevant conduct,or of their

5o(3)(a), It is a rational v re pludmbixtl die an fact impe

work free Saturday materiolly that would be a ractor

employes by re | veriation in the existing aprveciment as to the hours of work to

be performed by employees dn accovdsnee with the terms of

establishes on a balance of pro ities that the continurs

to have a material imact on t hours of work or working condi tions

The imposition of the ben was as stated above, effected

by resolution of a meeting of cumloyees of both the wholesale and

retail sections of Holman, Bub the relevant conduct in implcmoentavia

of the ban was conraitted by ell the eapleyoes in the wholesale secu

Nlolman and refrained from the bend.a of it. The employces of

It is not suggested thet the comingint purpose was vellated

to the hours or conditicas of work of, lhe employees in the

wholesale sccetion, but it would sec that it would be sufficient

for the defendauts to show that the purpose in guesticn was

substantially related to t hours ond conditions of the employees in the retail scetion, each of such employees being

Nanotuer person enployed Iv an employer of" one of the

participants, Nvidence relationship between the plainiiffl selling packaged meat on Saturdays and the hours worked or to be worked by the cmployescs

of Holiwan in its retail section was piven by two crployces

of Holman as well as Mr. Oswin, Mc. Swallow and Mr. Holman,

The two employees who gave evidence were both employed in Holmen" s retail section, Mr. King said he voted for the resolution

which was carried on 23 Cctobar 1978 because Mr. Swallow put

' to the meeting "the case about Saturday morning trading," Tt

appears that he understood that case to be that if the pleintilf

continucd to sell packegod meat on Saturday moimings super-

markets and retail butche weuld open, It eppears also that

Mr. King accepted this "casc" partly because of his experience of what had happened in Melbourne in 1952 when the market in Prahran commenced to trade on Seturdeys during

the football season from April till September, He expressed

"Tt only needs one person in Tasmania to open and within twelve months the reat will fal into Line"

However, when Mr. King 3 wd whether he thought that the possible Cevehopmcsre bo which he rmterred would lave any dinpact

"Tt most cer cnployed by ' IT have to po te a eu and if the tos That was the enjoy the hovers ¢ that we are ald until. th 1

ww ta be reettioL my Lite. Tt toor a butcher shop on Geeky i i Ws. dacs not mez Loyed at Holmer 'iod."

for the plointiff stressed, that nobvithstuudcing the

possible deveiopnenls 4 New King had in mind he aid not

Holman would be Ti. would be only if he charged his employer that he he mieht have to work on Saturday morniags., It indicates also that the possibility of Mr. King

changing to some other cupiover was not in Mr. King's

contemplation seve that change from time to time may be in the nelure of auy vornhing imunts Life. Tt indicates

his enployment and did met y Jihelihood of a change

thought was that of the other onployees wnen he said:-

meat, He said he was ip favour of the ban being imposed on the

plaintiff because "should they open and everybody Lolloy we would, we naturally thought we would be opening and working a six day weck", Asked whial made him think everybody would Lollos

conviction, It is my conclusion that'he wos echoing the view of

possible effect of the pleir f's Seburday trading on retailers penerally and was not intending to state that

he feared a change of novi Reliance could not be niaccd on his statement that there vas any real possibility that within the forseeable future Hollins would open on Saturday wornings and require ivs

retail butchers staff to work on Saturday mornings, if i

! inéeed that were his view. Much more reliable is the tmpliied

assertion by Mr. King that teking all the possibilitics into account, even in the event of the plaintiff continuing to trade on Saturdays in packaged incat he did not foresee

Holman opening for retsil business on Seturdays. It is for

relationship between the plaintiff continuing to trade on

Saturdays and the hours that the retail butchers on

Holman's stafr muy pe rea sa to work jn the immediate

It is to be observed that Holman employs in the vicinity of a lndred men in the wholesale and export and other sections of its business and about twelve in the reteil scetion, Its premises ere three to four km. "out cof town" and avay from the main business

area of Deversport., Devonport is over 50 km, from Burnie.

At a glance

Court

Decision date

Before

Source

Judgment (309 paragraphs)