A.M.I.E.U. v Frugalis Pty Ltd

C A T C H W O R D S

INDUSTRIAL LAW - order of Commission - breach by employer - power

of court to issue interlocutory injunction restraining breach

- ss.109 and 122 Conciliation and Arbitration	Act 1904 - lack
of jurisdiction.

STATUTES - interpretation - consideration of history of Act -

reference to Hansard.

Conciliatlon and Arbitration Act 1904, 5 5 . 3 3 , 109 and 122	I
*

The Australaslan Meat Industry Employees’ Unlon

v. Fruqalis Pty. Ltd. & Anor.

Qld Q6 of 1987

PINCUS J.

BRISBANE

4 AUGUST 1987

I ”

IN THE F

ED=

COURT OF AUSTRALIA

)

PUEENSLAND DISTRICT REGISTRY

)

QLD Q6 of 1987

DIVISION

INDUSTRIAL

BETWEEN:

THE AUSTRALASIAN MEAT INDUSTRY

EMPLOYEES' UNION

Applicant

I ::

AND: FRUGALIS PTY. LTD.

First Respondent

AND:

MOREX MEAT AUSTRALIA PTY.

LTD.

Second

Respondent

MINUTES OF ORDER

PINCUS

ORDER:

MAKING

JUDGE

DATE OF ORDER:	4 AUGUST 1987
WHERE MADE:	BRISBANE
THE COURT ORDERS THAT:

1. The appllcatlon for an mterlocutory injunction be

dismissed;

2. There be no order as to costs.

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

j.:

IN THE FEDERAL COURT OF AUSTRALIA

OUEENSLAND DISTRICT REGISTRY

)	QLD Q6 of 1987

INDUSTRIAL DIVISION

)

! ..

BETWEEN:

THE AUSTRALASIAN MEAT INDUSTRY EMPLOYEES' UNION

Applicant

AND: FRUGALIS

FTY. LTD.

First Respondent

AND: MOREX MEAT AUSTRALIA PTY. LTD.

Second Respondent

PINCUS J.

4 AUGUST 1987

EX TEMPORE REASONS

FOR JUDGMENT

This is an application by the Australasian Meat Industry

Employees Union against two respondents seeking orders which are fully set out in an applicatlon which has been filed. An example of the orders sought is sufficient, namely the first order, that

the flrst respondent take

all necessary steps to permit members of

the applicant to resume work at the Mary Valley Abattoir as

ordered by Commlssioner Caesar

on the 28th day of

July 1987.

, ..

The circumstances giving rise to the application are set

out in affidavits by

Mr. L.A. Day and Mr. G.R. Sutton, which have

been placed before me. Mr.

Day says in his affidavit, in summary,

that he is the State Secretary of the applicant, that the second

respondent carries on

the business of selling beef

at the Mary

’.

Valley Abattoir,

and that meat workers have been employed

at that

abattoir by the first respondent.

l..

I	f r .
l:,

Mr.

Day goes on

to sap that the management of the

I	abattoir passed in	1984 to the second respondent and negotiations
1

took place as to

the terms and conditions upon which labour would

1 I

be employed, resulting in an agreement, which

is before me, dated

. I

the second day of April 1984.

The agreement is in the following

j	terms	:
I

“In order to allow work to commence

at the above

premises, the following

has been agreed:-

That untll

determination by the courts of

which Award the

Abattoir is to work under, the

Abattolr is to

work

under

the

Queensland

Meatworks	Industrial	Agreement	Award.	The	L
, .

decision of the	court being binding on both
parties.

2 . The work force to be re-employed on the basis of seniority as at the close of the Plant in August, 1983.

The affidavit says

that

members of the union were employed under

the

Queensland

Meatworkers

Industrial

Agreement

Award.

The

affldavlt complalns of various breaches of the award which are not

of any present relevance, but admits that there was substantial

compllance wlth it until about June

1987.

. .

Mr. Day says that on

June, the respondents having

refused to employ members of the applicant under the terms of the

Queensland Meatworkers Industrial Agreement

Award, the matter came

before Mr. Commissioner Caesar of the Conciliation and Arbitration Commission and was adjourned on the basis that the parties would

endeavour to reach agreement

on a start-up, and that the start-up

should recognise the written agreement which	I have already quoted
in full.

However,

the

second

respondent,

the

affidavit

says,

L-.

refused

comply

with that

intimation

and, despite

the

availabillty of members of the applicant for work, the plant

remained substantially idle. On 16 June 1987, there was a further

hearing before Mr.	Commissloner Caesar, and he made a	direction
which is as follows:

"I hereby direct that Morex Meat Australia Pty. Ltd.

open it's [sic7 Maryvalley Abattoir and ablde by

the terms and conditions of the agreement slgned on

2 Aprll 1984 by

Mr. M.R. Doube on behalf of Morex

Meats Australia Pty. Ltd. and

to continue to work

: ,

in accordance wlth the terms of

that agreement."

. .

It is said in the affidavit that work recommenced

on the

19th day of June under the terms of the Queensland Meat Industrial

Agreement Award, but

on 17 July 1987 four

of the applicant's

r 1

members were dismissed from their employment.

On 22 July a board of reference recommended that

the

four

employees be continued

them employment,

but

the

respondents reacted to that recommendation by refusing to adhere

to the agreement of

2 April 1984, or to employ labour

on the terms

of the Queensland Meatworkers Industrial Agreement Award. They

also, of course, refused to continue to employ the four employees.

I I

The afftdavit explains that on

28 July 1987, the matter

1 came back before Mr. Commissioner Caesar and that the first and

second respondents clalmed that in fact and in law the first

respondent was the employer. Mr. Commissioner Caesar made

order which is the basis of the proceedings before

me.

i,.

The

order which is exhibit

to the affidavit in

question concluded as follows:

"Until that question is decided,

can see no

solution to the problems existing at the plant and

I intend therefore to stand this matter aside to

call on

application filed by the A.M.I.E.U.

which could well provide

the

vehicle to have the

many questions surrounding proper award coverage

dealt with.

To allow a proper hearing of that applicatlon

order that work resume at Mary Valley and that work

continue in accordance with the direction of this

Commlsslon made on

9 July 1987.

I further order

the Unlon to take all steps necessary to obtain a

return to the status quo whlch existed at that

date

at both the Mary Valley and Roma works

Morex

Pty. Ltd. It

follows that the company is to take

whatever steps necessary to facilitate the carrylng

out of this order by the Union.

The question of relnstatement, as recommanded

CsicIl

by the Board of Reference, of the four employees

sub~ect

to the notiflcation of the company

No. 6587 of 1987 whlch I am standing aside, will be

dealt with

by the Commission at

an appropriate tlme

after the resumption of the work in accordance with

this Order has taken place."

There is also

an affidavit by

Mr. G.R.

Sutton, the

Central District Secretary of the applicant union which

have

read, but into the details of which it is unnecessary to

enter.

That is so because, as I understand the argument of counsel

for

the respondents, there is

no pretence that the respondents have

intention of complying with the order made by the Commission.

Counsel for the respondents, when the matter

was heard

at lunch-time today, mentioned during the hearing that his clients were content to give an undertaking that no further people would be taken on, other than members of the applicant, for a certain time. However, It did not appear that the undertaking in question

really achieved anything of the kind which the order sought and it

was apparently unacceptable to the applicant.

The circumstances are such that, if

I have the power to

order compliance wlth Mr. Commissloner Caesar‘s order,

I should in

my oplnion do s o .

Mr. Hall of counsel for the appllcant, In his

helpful

argument,

made

some

remarks

with

reference

that

subject. He sald, in effect, that the court‘s power

arises under

s.l09(l)(b) of the Conclliatlon and Arbltratlon Act

1904,

which

empowers the Court to enjoln an organisation

o r

person from

commltting or continuing

contravention of thls Act or the

regulations, and

referred to Part

VA, which transfers the

Jurisdictlon of the Court there mentioned to this Court.

The

contention which Mr. Hall advanced was that my

~urisdiction is

enlivened by s.l09(l)(b) read in conjunction wlth

5 . 1 2 2 ,

which

reads

“No person shall wilfully make default	in compliance
with any order or award.“

6 .

His contention was that it was plain from the circumstances that

there was default and that it was wilful and that that constituted

a breach of 5.122 and therefore

a breach of the order.

very

candidly, however, drew my attention to the Circumstances that

there formerly was a provision, s.l09(l)(a), which specifically

empowered the grant of such relief as is presently sought, and

invited my consideratlon of the question whether the repeal of

that

provision

had

any

effect

upon'

the interpretation

s.l09(l)(b).

Mr.

Hall's

argument,

which

seems

have

considerable strength, is that s.l09(l)(b), although it does not speclflcally allow any injunction to be granted for breach of an

order or award, does

s o where the breach is wilful. He said that

some attention should be dlrected to

the question whether or not

that construction can stand with the changes made which resulted

in the lnsertlon of

5 . 3 3 In the Act.

Mr.

Hall Informed me that

was not aware of any

decision of the question, but that the point has been discussed by

Gray J. in

Medcraft

Federated

Ensme Drivers & Firemens

Association of Australia and Ors., 1984

8 I.R. 211 at p.218.

The

discusslon there is not conclusive, but nevertheless should be

quoted.

The remarks which his Honour made included the following:

j :

"When s.l09(l)(b) of the Act was first enacted, it,

together with the former s.l09(l)(a), was the sole

express

grant

a newly

created

court,

the

Commonwealth Industrial Court,

any power to

grant injunctions. The court should, therefore,

reluctant

construe

s.l09(l)(b)

as enlarging

either the kinds

matters in respect

whlch

injunctions may

be granted, or the classes of

I ,

persons entitled to apply for injunctions, except

to the extent that any such enlargement necessarily

follows from the language used in the provision.

It may be that there are possible contraventions of

the

Act

which

would

not

amount

criminal

offences. In such cases, where no other specific

provision for interim restraining orders 1 s

made,

the grant of an injunction under s.l09(l)(b) may be

appropriate ...

In my view, the power now given to

this Court by s.l09(l)(b) does permit the grant of

an injunction where the conduct alleged constitutes

a criminal offence under some provlsion of the

Act,

and where the person seeking the injunction has

suffered some special damage of the kind referred

to above. In those circumstances, an lnterlocutory

injunction may be granted upon the principles which

normally apply to such relief.

Although he argued vlgorously that s.l09(l)(b) give the court power to grant an injunction restraining

a contravention of s132A, Mr. Stockdale, on behalf

of the applicants resisted the general proposition

that

any

offence

under

the

Act

can

restrained. In particular, he refused to commit

himself to the proposition that

an in~unction

would

lie to restrain

employer from dismissing

employee where that dismissal would be in

breach of

s . 5 of the Act, or that

a party to an award could

be	restrained by injunctlon from committlng the

offence of wilfully making default

compliance

with the award, under

s.122

of the

Act.

Mr.

Stockdale's reluctance has not made it any easler

for me to reach the conclusion

I have reached as to

the applicablllty of s.l09(l)(b) to a contravention

s.132A.

The

dlstinction which Mr. Stockdale

attempted to make between

a "contravention" and a

"breach" of

the Act

is not, i n my

view, a real

distinction. I note that s.188(1)(a) and (b) refer

to a "contravention"

of various provislons of

5 . 5 .

It may be that the question of an in~unction to restram a wllful default in compliance with an award must be determined by reference to the

special

provisions which the

Act

contains

for

dealing with breaches of awards (see ss.119 and

)

and to the speciflc repeal of the former

s.l09(l)(a) by Act No. 53 of 1970."

His Honour did not determine this question, but

I read his remarks

as rather tending against Mr. Hall's contention.

8 .

Prior to the 1970 amendment, s.l09(l)(a) and (b) of the

Act

read

as follows:

"The Court is empowered

(a) to order compliance with

award proved to

the satlsfaction

of the Court to have been

broken or not observed;

(b) to

enjoin an

organization

person

from

committing or contlnuing a contravention of this Act or a breach or non-observance of an award".

The current position wlth respect

construction of

statutes is asslsted, on one point of view,

or complicated, from

another point of view, by the possibillty of referring to Hansard.

m e n the Conclliation and Arbitration Bill 1970 was introduced,

the then Minlster for Labour and National Service made remarks

which throw llght upon the present problem and which seem to me to

be worth quoting

some length. The Minlster

In hls second

reading speech said inter alia:

"The Bill

changes

the

sanctions

provisions,

otherwise

called the 'penal

clauses'

the

Conciliation and Arbltration Act. Sections 1 0 9 and

111 of the Act dealt with industrlal stoppages on

the basis of the Commonwealth Industrial Court's

injunction-making power and its power to punish for

contempt.

The

Bill will deal with an industrial

stoppage as

a breach of

an award but before the

prosecution may proceed it wlll be necessary for

the

parties

have

taken

advantage

the

conciliation or,

necessary, arbitration of

presidential

member

Commonwealth

the

Conciliation and Arbitration Commission."

The Minister then went on to refer to discussions

which had taken

I	place and had resulted in the legislation and continued:
;.

9 .

“The Government position remains that sanctions

are

an essential feature of our system of conciliation

and arbitration. However, the Government does

not

insist on the existing

sanctions provisions in

the

Act. The Government sees the sanctioning process as being one of last resort. The Government wants

see

every

reasonable

effort

made

solve

disputes

between

management

and

labour

the

processes of negotiation, conciliation

and,

where

necessary,

arbitration.

When

reasonable

efforts

have failed and there is strike action sanctions

ought to be available.

‘I

!	Then there was further discussion, and the Minister went on:
!

“Mr. Speaker, the esential feature

of the Bill is

that before action can be taken

to use the

new

sanctions process the Commission

will attempt to

resolve the issues that lle between the parties. I

belleve that the existing sanctioning process which	I .
involves the use of the Court‘s lnjunctlon-making	_ I
powers under sectlon 109 and Its power to punish	!

for

contempt

under

section

111,

are

longer

appropriate or desirable.

belleve they suffer

from

main deflciencies. Firstly, there 1s the

lmmedlacy of their availabllity. Secondly, they do

not allow the Court to take hold

of the dispute

between

the

parties and endeavour to assist the

parties to resolve

that

dispute.

This

reflection on the Court.

The Court cannot concern

itself wlth the underlying causes of matters which

come

before

under

sections

109

and

111.

Therefore, there is a provision that before a sanctlon can be sought, the party seeking that

sanction must notlfy the Commission.

F’urthermore,

the

Commission

will

constituted

> -.

presidentlal member and

he wlll be required to make

every effort to settle the dlspute that exists

between the parties. Not untll he has Issued

certlficate will It be possible to proceed in the

Industrial Court.

I’

The Minister concluded this part of the discussion by saying:

“The Government does not believe that sections 109

and 111 are consistent with its aim of trying to

have disputes solved without recourse to sanctions

wherever this is possible. This means that when

the Bill becomes law, the injunction-making powers

of the court under section

109

and its powers to

10. r ,

punish for contempt will not be capable

of being

exercised as sanctions against unions or employers

for award breaches. Section 109 has been used

principally in

the past to secure observance of

so-called bans clauses of awards

and, where

could be shown to the court that orders made in	::
I i

this way under section

109 were being breached, the

court could punish such breaches

as contempt of the

court and impose a fine of up to $1,000.

This

! !

being

swept

away.

In future, there will be

. .

sanctions proceeding and not

2."

I I .A

The Bill to whlch the Mlnister referred became Act

No.

53 of 1970 and it

was that statute which achieved the repeal of

s.l09(l)(a) and also deleted from s.l09(1)(b) the words

"or a

breach or non-observance of	an award." Under	s.4(1) an	award
mcludes an order.

The main foundation of the argument,

to whlch

grateful to Mr. Hall for havlng referred me, that s.l09(l)(b), in

combination wlth 5.122 does

not

permlt

the

court

grant

injunctions for breaches for orders or awards is a hlstorical one.

It may be

that, if

one

were to

read

s.l09(l)(b)

and

5 . 1 2 2

literally, without reference

to thls history, the conclusion would

have to be in accordance with

Mr. Hall's submission.

Apart from the history, however, there

1 s a clrcumstance

which makes one pause before adopting

the literal constructlon,

namely that, if it is the case that a wilful breach of an order or award can be punished by the two-stage procedure referred to by	3	.
: :

the Minister in the passage	I have read, then that procedure would	I ,
!

be as applicable to breaches by the union as

to breaches by an

employer.

That

would seem to make

the

safeguards

which

are

presently to

be found in

s.33

applicable only to instances in

which the breach was otherwise than wilful. It appears to me,	,	-.
therefore, that there is no jurisdiction to make the order which

is sought	- a conclusion which	I	reach, I must confess, with	.,
r '
, -i

regret - and the application will be dismissed without costs.

f certify that this and the '0 preceding

pages ara a true copy of the reasons for

judgment hcrein' of His Honour

Mr. Justice Pincus

Associate

Counsel for

the Applicant:

Mr. D.R. Hall

Sollcltors for the Applicant:	Messrs. Poteri Woods	& Co.
Counsel for the Respondent:	Mr. R. Mack

Solicitors for the Respondents:

Messrs.

Michael

Quinn

Co.	c:
> '

Date of Hearing:

4 August 1987

[1987] FCA 426

4 Aug 1987