ANL Container Line Pty Limited v Maritime Union of Australia

[1999] FCA 1882

FEDERAL COURT OF AUSTRALIA

ANL Container Line Pty Limited v Maritime Union of Australia
[1999] FCA 1882

TRADE PRACTICES – interlocutory injunction – rebuttable presumption that a union has engaged in conduct proscribed by s 45DB Trade Practices Act 1974 (Cth).

Trade Practices Act 1974 (Cth) ss 45DB, 45DC, 45DC(1), 45DD
Workplace Relations and Other Legislation Amendment Act 1996 (Cth)

ANL CONTAINER LINE PTY LIMITED v MARITIME UNION OF AUSTRALIA & ORS
W 92 OF 1999

LEE J
9 SEPTEMBER 1999
PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W 92 OF 1999

BETWEEN:

ANL CONTAINER LINE PTY LIMITED
APPLICANT

AND:

MARITIME UNION OF AUSTRALIA
FIRST RESPONDENT

PETER JOHN NORRIE
SECOND RESPONDENT

MICHAEL DAVID HUGHES
THIRD RESPONDENT

JOHN CHARLES HARTLEY
FOURTH RESPONDENT

GERT BERGVALL
FIFTH RESPONDENT

JASON ROSS EVANS
SIXTH RESPONDENT

PAUL CHARITY
SEVENTH RESPONDENT

MICHAEL BARBER
EIGHTH RESPONDENT

ROSS ERIC GOYEN
NINTH RESPONDENT

DAVID FITZGIBBON
TENTH RESPONDENT

JUDGE:

LEE J

DATE OF ORDER:

9 SEPTEMBER 1999

WHERE MADE:

PERTH

THE COURT ORDERS THAT:

1.Pursuant to O 3 r 3 of the Federal Court Rules, the time for service of the application be abridged.

2.The first respondent by its officers, employees or agents be restrained from engaging in conduct directly, or indirectly, in concert with any person, or persons, that substantially hinders the applicant from engaging in trade or commerce involving the movement of goods between Australia and places outside Australia by the sailing of the Australian Enterprise from the Port of Fremantle at 1300 hours on 9 September 1999 or so soon thereafter as the vessel may be made ready to sail by the applicant.

3.There be liberty to apply.

4.Service of this order may be effected on the solicitors for the first respondent, Dwyer Durack, 40 St George’s Terrace, Perth.

5.Costs be reserved.

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

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W 92 OF 1999

BETWEEN:

ANL CONTAINER LINE PTY LIMITED
APPLICANT

AND:

MARITIME UNION OF AUSTRALIA
FIRST RESPONDENT

PETER JOHN NORRIE
SECOND RESPONDENT

MICHAEL DAVID HUGHES
THIRD RESPONDENT

JOHN CHARLES HARTLEY
FOURTH RESPONDENT

GERT BERGVALL
FIFTH RESPONDENT

JASON ROSS EVANS
SIXTH RESPONDENT

PAUL CHARITY
SEVENTH RESPONDENT

MICHAEL BARBER
EIGHTH RESPONDENT

ROSS ERIC GOYEN
NINTH RESPONDENT

DAVID FITZGIBBON
TENTH RESPONDENT

JUDGE:	LEE J
DATE:	9 SEPTEMBER 1999
PLACE:	PERTH

REASONS FOR JUDGMENT

1. The applicant (“ANL”), by application filed on 7 September 1999, sought orders under s 45DB of the Trade Practices Act 1974 (Cth) (“the Act”) that the first respondent (“the Union”) and the other-named respondents be restrained from engaging in conduct in concert that substantially hinders ANL from engaging in trade or commerce involving the movement of goods between Australia and places outside Australia.

2. When the matter came on for hearing as an application for interim orders in the terms sought in the principal application, the Union but no other respondent had been served with the application and supporting material.

3. The relevant facts of the matter may be briefly stated as follows. ANL is an Australian company wholly owned by a French company, Compagnie Generale Maritime (“CGM”) which in turn is a subsidiary of Compagnie Maritime d’Affretement (“CMA”). In December 1998 the applicant acquired a liner shipping business which included the vessel the subject of this dispute (“the Australian Enterprise”). The Australian Enterprise operates within the AAX Consortium (“AAX”) on trading routes between Australian and South East Asian ports and under the Australian flag and with an Australian crew employed by ASP Ship Management Pty Ltd (“ASP”). ANL asserts that these routes have proven to be unprofitable for ANL leading to a decision to withdraw the Australian Enterprise from service with AAX and put the vessel out to charter. On 9 August 1999 the Union was advised by ANL that the Australian Enterprise would cease operating within the AAX on about 9 September 1999.

4. In September 1998 the Union had been advised by CGM as follows:

   “Notwithstanding that the sale of ANL Liner business did not have any pre conditions for the employment of Australian maritime personnel, we have determined that the m/v “A. Enterprise” and the m/v “A. Endeavour” will stay under Australian flag for a period of two years, assuming it will give enough time for all parties to come to terms and implement the envisaged shipping reform group’s recommendations (including the fiscal part of it). Should that reform not, or insufficiently, be implemented within these 2 years, we would of course have to reconsider our position at the end of the period.”

5. On 12 August 1999 the Union reminded ANL of the terms of CGM’s advice to the Union. ANL maintained its decision to withdraw the Australian Enterprise from service.

6. ANL has agreed to charter the Australian Enterprise to CMA for deployment between Europe, Asia and North America and to deliver the vessel to CMA at Port Kelang on or about 10 September 1999.

7. The second to tenth respondents are members of the crew engaged to sail the Australian Enterprise to Port Kelang. The vessel arrived at the Port of Fremantle about 5.00 am on 6 September 1999 and was due to sail for Port Kelang at 6 am on 7 September 1999. ANL asserts that about departure time two members of the crew informed the Ship’s Master that the Australian Enterprise was “in dispute” and would not be sailing “until CGM comes to the party”. The Australian Enterprise is carrying cargo for Singapore and other overseas ports, some of which goods, although refrigerated, are perishable.

8. The applicant relies on s 45DB of the Act which is in the following terms:

   “45DB.(1)  A person must not, in concert with another person, engage in conduct for the purpose, and having or likely to have the effect, of preventing or substantially hindering a third person (who is not an employer of the first person) from engaging in trade or commerce involving the movement of goods between Australia and places outside Australia.

   (2)  A person is taken to engage in conduct for a purpose mentioned in subsection (1) if the person engages in the conduct for purposes that include that purpose.”

9. Section 45DC(1) deals specifically with an organisation of employees (“a union”) and provides:

   “If 2 or more persons (the participants), each of whom is a member or officer of the same organisation of employees, engage in conduct in concert with one another, whether or not the conduct is also engaged in in concert with another person, then, unless the organisation proves otherwise, the organisation is taken for the purposes of section 45D, 45DA and 45DB:

   (a)to engage in that conduct in concert with the participants; and

   (b)to have engaged in that conduct for the purposes for which the participants engaged in it.”

10. These provisions were inserted in the Act by the Workplace Relations and Other Legislation Amendment Act 1996 (Cth) and commenced on 26 November 1996. The effect of s 45DC(1) is to create a rebuttable presumption that a union has engaged in conduct proscribed by s 45DB if two or more of the participants in the conduct are members or officers of the Union. The Union must show that it had not acted in concert with its members or officers.

11. There are two issues to be resolved before an interlocutory injunction may be granted against the Union.

    Does it appear that:

    ·     a person, acting in concert with another person, has engaged in conduct for the purpose of substantially hindering a third person from engaging in trade or commerce involving the movement of goods between Australia and places outside Australia; and

    ·     are two or more of the persons engaging in the above-mentioned conduct members or officers of the Union?

12. These are not easy questions to resolve. The material presented does provide a framework for inferences although there are substantial areas where no inferences are made available and the material must be discounted. For example, where belief is relied upon the material fails to set out the material facts relied upon for the formation of the belief. Therefore no ground has been provided for inferences to be drawn from statements of belief.

13. In particular, there is no basis on which the Court can draw an inference that it is arguable that any officers of the Union have been involved in conduct that has contravened s 45DB of the Act. However, in respect of the two members of the crew who dealt with the Ship’s Master, there is a combination of material which may allow an inference to be drawn, and for the proposition to become arguable, that they were, or are, members of the Union.

14. I think two matters that go to that issue are, first, the statement by the Ship’s Master that the crew members hold themselves out as persons able to speak for the Union. As I indicated during argument, that does not mean that any inference is provided that the crew members hold any position as officers of the Union, but it does indicate an identification with the Union which may suggest membership of it. Second, the contents of the Enterprise Agreement that applies to the Australian Enterprise and to which the Union is a party, suggests some degree of likelihood that the personnel involved were members of the Union.

15. The combination of the “holding-out”, and the contents of the Enterprise Agreement, allows me to conclude reasonably that the crew members are members of the Union. No more is required for the presumption in s 45DC to operate if it is shown that they have also engaged in conduct that substantially hinders engaging in trade or commerce involving the moving of goods between Australia and external places. I have some misgiving as to exactly what conduct there is in that regard, however, there is probably sufficient material to raise the question that in concert with others, whether engineers, deck officers or other crew members, they have been able to substantially hinder the operation of the Australian Enterprise.

16. It may be concluded, therefore, that there is an argument that the Union has been involved in such conduct. The applicant’s reliance on the presumption in s 45DC means that the Union bears the onus of showing that it has not been involved in that conduct with the necessary purpose.

17. Section 45DD sets out particular situations in which boycotts of the type proscribed by s 45DB are permissible. One of these is provided for in subs (1) which provides that there is no contravention if the dominant purpose for which the conduct was engaged in is substantially related to the remuneration, conditions of employment, hours of work or working conditions.

18. It may well be that an argument under s 45DD, when all the evidence is presented, may show that there has not been a contravention of the Act by the Union. Presently, I am unable to say that that is necessarily so and the fact that it is arguable is merely a matter to be taken into account in determining whether, on balance, an order is to be made. It remains part and parcel of an arguable issue.

19. Sufficient time has passed for it to be fairly clear that the balance of convenience is falling fairly firmly on the side of the applicant. It does not necessarily follow that there is going to be major disruption of its trading activities by what has occurred to this point, but if it were allowed to continue it may well be that such a disruption would occur. This may be forecast if cargo containers are to be removed from the Australian Enterprise to be shipped by another carrier.

20. If suitable undertakings had been offered, it would be unnecessary to make orders in the matter. In the absence of any undertaking, I think I should make an order restraining the Union drawn with regard to the nature of the case as it is and the circumstances as they now exist.

21. I am satisfied that at this point the order should exclude reference to “members” of the first respondent. The operation of the presumption in s 45DC would mean that the Union would be in contempt for breaching the order even if members of the Union act independently or even in a manner contrary to the directions of the Union to continue the contravening conduct.

22. I will make an order in the following terms:

    The first respondent by its officers, employees or agents be restrained from engaging in conduct directly, or indirectly, in concert with any person, or persons, that substantially hinders the applicant from engaging in trade or commerce involving the movement of goods between Australia and places outside Australia by the sailing of the Australian Enterprise from the Port of Fremantle at 1300 hours on 9 September 1999 or so soon thereafter as the vessel may be made ready to sail by the applicant.

I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lee.

Associate:

Dated:             

Counsel for the Applicant:	A R Beech
Solicitor for the Applicant:	Blake Dawson Waldron
Counsel for the First to Tenth Respondents:	R W Richardson
Solicitor for the First to Tenth Respondents:	Dwyer Durack
Dates of Hearing:	8 & 9 September 1999
Date of Judgment:	9 September 1999