Alcan Australia Ltd v Australian Building Construction Employees & Builders Labourers Federation

[1984] FCA 112

Re: ALCAN AUSTRALIA LIMITED
And: AUSTRALIAN BUILDING CONSTRUCTION EMPLOYEES AND BUILDERS LABOURERS
FEDERATION; NORMAN GALLAGHER; NORMAN RUST; NORMAN WALLACE; STEVE BLACK;
HARRY NOWICKI
No. G109 of 1984
Trade Practices

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Kirby J.

CATCHWORDS

Trade Practices - Secondary boycott - interlocutory proceedings - whether interlocutory orders should be granted - 'balance of convenience' - adjournment for short time pending conciliation proceedings.

Conciliation and Arbitration - relationship between s.45D Trade Practices Act and Conciliation and Arbitration Act - How President of the Conciliation and Arbitration Commission may otherwise 'become aware' - whether Judge of the Court may act to make President aware.

Trade Practices Act 1974 ss 45D, 80

Conciliation and Arbitration Act 1904, s 88DC(1)(c)

HEARING

SYDNEY

#DATE 6:4:1984

JUDGE1

In this matter the Applicant seeks relief under s.45D of the Trade Practices Act 1974 in respect of certain conduct by the First Respondent (which I shall call the BLF) and its officers and members. The situation disclosed by the evidence is very serious indeed, not least because of evidence of violence as recently as today at the Applicant's Granville plant and yesterday in the offices of the Applicant's solicitors. Such conduct is to be deplored. I shall say no more about those events as the Respondents may be ignorant of them. The Respondents were not represented before me, although it is clear that some at least of the Respondents were duly served with notice of the proceedings.

The primary dispute which gives rise to the developments complained of is a demarcation issue involving the BLF and other organisations engaged in the Kurri Kurri operations of the Applicant. That dispute and its sequelae have twice been before the Australian Conciliation and Arbitration Commission (Commissioners Merriman and Lear) but without resolution.

It is my view, for reasons which I shall elaborate later, that a sufficient case has been made out for interlocutory relief - at least against the first, second, fourth and sixth Respondents. Certain problems as to service of process arise in the case of the third and fifth Respondents which I will not deal with now.

The question is therefore whether the 'balance of convenience' requires immediate interlocutory orders of the kind now sought by the Applicant. Cf Australian Coarse Grain Pool Pty Ltd v Barley Marketing Board of Queensland (1982) 46 ALR 399 (Gibbs CJ). The Applicant offers the Court the usual undertakings as to damages.

Section 88DC of the Conciliation & Arbitration Act 1904 provides that in cases such as this, the Australian Conciliation and Arbitration Commission is empowered to settle the dispute by conciliation if, amongst other things, the Applicant or a Minister notifies the President or the Registrar of a dispute or the President 'otherwise becomes aware' of the existence of a dispute.

It has been submitted to me that it is no part of the function of a Judge of the Court to trigger the mechanism by which the President becomes so aware. Certainly, there is no statutory provision empowering a Judge, in terms, to notify the President. However, I draw an inference from the provisions of para 88DC(1)(c) that the Parliament assigned high importance to invoking the power and authority of the President in cases such as this and attempting conciliation so that an attempt might be made to deal with the basic dispute rather than only with conduct that may be evidence of that dispute.

It is my view that a Judge of the Court has the power to make the President aware - and I intend to act so that he is made aware. By the same token, the situation disclosed by the evidence is serious and apparently deteriorating. Accordingly, I would not have in mind a lengthy adjournment of these proceedings for interlocutory relief and further directions.

THE ORDERS OF THE COURT ARE:

1. That the President of the Australian Conciliation and Arbitration Commission be made aware of the existence of a dispute relating to a contravention or a threatened, impending or probable contravention of s.45D of the Trade Practices Act 1974 being a dispute in which the First Respondent, an organisation of employees registered pursuant to the Conciliation and Arbitration Act 1904, is involved. I myself intend to so make the President aware of the dispute. I will make available to the President the affidavits (other than the affidavits relating to service on the Respondents) filed in the Court. Copy of my notification will be available to all parties from the Registrar on Monday, 9 April 1984.

2. That the Registrar notify the Minister for Employment and Industrial Relations of the application made by the Applicant concerning the existence of a dispute involving (amongst others) the Applicant and the Respondent organisation.

3. That the Application be relisted for mention on Wednesday 11 April 1984 at 9.30 am at which time the Court will proceed to consider any orders which convenience requires in the light of -

(a) the action, if any, taken by the President and the Conciliation and Arbitration Commission; and

(b) the circumstances then obtaining.

In the meantime, the application for the interlocutory injunctions sought by the Applicant are stood over to that time.

4. That the Applicant have until 4.00 pm on Monday 9 April 1984 to file any additional affidavits on which it proposes to rely and that the time for service on the Respondents be abridged to 4.00 pm on Tuesday 10 April 1984.

5. That the Respondents have until 4.00 pm on Tuesday 10 April 1984 within which to file any affidavits they wish to file.

6. That there be liberty to apply to relist the matter on twenty-four hours' notice to the Registrar.

7. That the Registrar notify the Respondents of these orders by telegram addressed to the Registered Office of the First Respondent.

8. Costs reserved.