Australasian Meat Industry Employees Union v Australian Meat Holdings Pty Ltd

[1999] FCA 696

FEDERAL COURT OF AUSTRALIA

Australasian Meat Industry Employees Union v Australian Meat Holdings Pty Ltd [1999] FCA 696

INDUSTRIAL LAW – employment contract – dismissal – meaning of “serious and wilful misconduct” – interim award – variation – whether variation by later award should be regarded as varying the interim award – meaning of “an order affecting an award” within s 150 of the Workplace Relations Act 1996 (Cth) – whether difference between “variation” and “setting aside” – whether varied order is void ab initio

Industrial Relations Act 1988 (Cth)
Workplace Relations Act 1996 (Cth)
Industrial Relations Reform Act 1993 (Cth)

Adami v Maison Deluxe Limited (1924) 35 CLR 143 considered
Gould v Mt Oxide Mines Ltd [(1916) 22 CLR 490 applied
W R Knott v Carlton and United Breweries Ltd (1958) 13 IIB 212 considered
Johnson v Marshall, Sons & Co Ltd [1906] AC 409 cited
Laws v London Chronicle (Indicator Newspapers) Ltd [1959] 2 All ER 285 cited
Hall v General Motors Holdens’ Ltd (1979) 45 FLR 272 cited
R v Balfour; Ex parte Parkes Distributions Pty Ltd (1987) 17 FCR 26 applied
McIntosh v Minister for Health (1986) 17 FCR 463 applied
Forbes v New South Wales Trotting Club Ltd (1979) 143 CLR 242 considered
The Queen v Marks;Ex parte Australian Building Construction Employees and Builders Labourers’ Federation (1981) 147 CLR 471 considered
O’Toole v Charles David Pty Ltd (1990-1991) 171 CLR 232 cited
Shepherd v Felt and Textiles of Australia Ltd (1931) 45 CLR 359 cited

AUSTRALASIAN MEAT INDUSTRY EMPLOYEES UNION v AUSTRALIAN MEAT HOLDINGS PTY LTD (ACN 011 062 338)
QG 111 OF 1997

AUSTRALASIAN MEAT INDUSTRY EMPLOYEES UNION v AUSTRALIAN MEAT HOLDINGS PTY LTD (ACN 011 062 338)
QG 119 OF 1997

DOWSETT J
25 MAY 1999
BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QG 111 OF 1997

BETWEEN:	AUSTRALASIAN MEAT INDUSTRY EMPLOYEES UNION Applicant
AND:	AUSTRALIAN MEAT HOLDINGS PTY LTD (ACN 011 062 338) Respondent
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY		QG 119 OF 1997

BETWEEN:	AUSTRALASIAN MEAT INDUSTRY EMPLOYEES UNION Applicant
AND:	AUSTRALIAN MEAT HOLDINGS PTY LTD (ACN 011 062 338) Respondent
JUDGE:	DOWSETT J
DATE OF ORDER:	25 MAY 1999
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

1.        The application no QG 111/97 be dismissed.

2.        The application no QG 119/97 be dismissed.

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

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QG 111 OF 1997

BETWEEN:	AUSTRALASIAN MEAT INDUSTRY EMPLOYEES UNION Applicant
AND:	AUSTRALIAN MEAT HOLDINGS PTY LTD (ACN 011 062 338) Respondent
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY		QG 119 OF 1997

BETWEEN:	AUSTRALASIAN MEAT INDUSTRY EMPLOYEES UNION Applicant
AND:	AUSTRALIAN MEAT HOLDINGS PTY LTD (ACN 011 062 338) Respondent

JUDGE:	DOWSETT J
DATE:	25 MAY 1999
PLACE:	BRISBANE

REASONS FOR JUDGMENT

The Applications

1. There are two applications, in each of which the applicant is the Australasian Meat Industry Employees Union and the respondent is Australian Meat Holdings Pty Ltd.  The respondent operates numerous meatworks throughout Queensland and New South Wales, including the Fitzroy River plant near Rockhampton.   Each application is brought on behalf of a former employee of the respondent at that plant to recover payment in lieu of long-service leave allegedly due by the respondent to the employee in question.  In application no QG 111/97 the relevant former employee is Peter Mackay.  In application no QG 119/97 the relevant former employee is John McCallum.  The applicant also seeks the imposition upon the respondent of pecuniary penalties.

2. Mr Mackay was first employed by the respondent at the Fitzroy River plant on 15 January 1985.  His employment was terminated on or about 23 May 1995.  Mr McCallum was first employed there on 22 March 1988.  His employment was terminated on or about 20 July 1995.  As I understand the evidence, for reasons associated with the nature of the industry and the history of industrial relations between the respondent and its employees, both men had, on occasions, been dismissed and re-employed during their respective periods of employment. 

3. Clause 23A of the Australian Meat Holdings Pty Ltd – Rockhampton Abattoir – Interim Award 1995 is the relevant provision as to long-service leave. It grants to employees who have served for between five and ten years, pro-rata entitlement to long-service leave where their “engagement is permanently terminated by the employer for any cause other than serious or wilful misconduct …”. It is common ground that Messrs Mackay and McCallum are entitled to payment for pro-rata long-service leave unless, in either case, termination was for “serious or wilful misconduct”. The respondent alleges that each employee was terminated for participating in strike action by refusing to work, despite requests by the respondent that he do so, and that such conduct was both serious and wilful misconduct. The applicant denies that such conduct constituted serious or wilful misconduct. Each case therefore requires an examination of the circumstances in which the employees participated in the relevant industrial action. It is common ground that if the strike action in question was a protected action within the meaning of s 170PG of the Industrial Relations Act 1988 (Cth) (now known as the Workplace Relations Act 1996 (Cth)) (the “Act”), it could not be serious or wilful misconduct for the purposes of the award. The applicant, however, does not concede that unprotected action would necessarily constitute such misconduct.

   Protected Action

4. It is appropriate to commence with a brief examination of the relevant legislative provisions relating to strike action. They are found in ss 170PA et seq of the Act. Section 170PD provides that where an employer or an organization of employees wishes to negotiate an agreement in relation to employees of that employer, either may give notice initiating a bargaining period. For present purposes, that step was taken on 23 September 1994. Pursuant to s 170PF, the bargaining period commenced seven days later on 30 September. Sub-section 170PG(2) provides:-

   During the bargaining period, an organization of employees that is the negotiating party, a member of such an organization who is employed by the employer, or an officer or employee of such an organization acting in that capacity, is entitled, for the purpose of supporting or advancing claims made by the organization that are the subject of the industrial dispute, to organize or engage in industrial action directly against that employer and, if the organization, member, officer or employee does so, the organizing of, or engaging in, that industrial action is protected action.

5. Section 170PH requires at least seventy-two hours’ notice to the employer of any intention to take such action, stating the nature of the intended action and the day when it will begin.  In the absence of such notice, the action is not protected.  Section 170PM provides for “immunity” in respect of protected action.  As I have said, it is accepted that protected action would not be serious or wilful misconduct for present purposes.

   Enterprise Agreements

6. It is also necessary to say something about the significance of enterprise agreements. The Act permits an employer and its employees to enter into an agreement as to the relationship between them which may not comply with the terms of an existing award, subject to the approval and supervision of the Industrial Relations Commission (the “Commission”). It appears from the evidence that in 1995, the respondent was anxious to negotiate such an agreement, and that this matter was the subject of ongoing negotiations between the applicant and the respondent.

   Background Evidence

7. Both parties were anxious to canvass the long history of industrial disagreement between the respondent and its employees and the personal qualities of some of the people involved.  In particular, the respondent sought to lead substantial material as to industrial unrest going back over many years, and the applicant led much evidence critical of the attitudes and methods of Mr Hughes, an employee of the respondent.  In general, I took the view that such matters were not prima facie relevant, although I indicated that I would entertain submissions as to the relevance of any particular aspect.  The evidence was generally limited to events occurring in 1994 and 1995.  Events in 1994 have a particular relevance which I will address in the course of discussing the evidence.

   Mr Mackay’s Evidence

8. Mr Mackay is now retired.  He commenced as a meatworker in 1967.  In about 1970, he went to work at the Fitzroy River meatworks.  During 1994 and 1995, he was aware of a campaign of industrial action taken by the respondent’s employees.  He considered that the respondent had retaliated by introducing “minimum tally” and by standing down employees for an extra day on each occasion on which they conducted a stoppage.  The “tally” was the number of carcasses processed in the course of any one day, the minimum and maximum tallies being fixed by the award.  Employees’ remuneration varied to some extent, dependent upon the daily tally.  By selecting minimum tally, the respondent ensured that employees received minimum wages for the relevant day.  Obviously, standing down employees for an extra day following an industrial stoppage also reduced their capacity to earn.  In the course of evidence, it emerged that minimum tally was accompanied by selection of a slow chain speed, another matter of complaint by employees.  Carcasses would enter the boning room (where Mr Mackay was employed) hanging from a continuous chain and pass various stations at which different parts of the boning process were performed.  The speed of the chain was variable.  It is implicit in the complaint that employees were also able to work at varying speeds.  By setting the chain at minimum speed, the respondent ensured that employees would take the whole of a day to dispose of the day’s tally when, in fact, by working at a faster speed, they could have disposed of it earlier and gone home without any reduction in pay for the day.  I will return to these matters at a later stage.

9. In May, 1995 Mr Mackay understood that the respondent, through its industrial relations manager, Mr Hughes, had agreed that if employees of the respondent at its various plants appointed separate consultative committees with a view to negotiating for separate enterprise agreements, it would lift the tally “to a reasonable level within one month”.  Mr Mackay considered that the respondent had defaulted under this agreement and understood that the applicant intended to take industrial action, a decision about which was to be taken on 19 May 1995.  He attended work on that day.  A meeting was held at which workers indicated a desire to strike.  An official of the applicant, Paul Jensen, advised them against taking that action because no appropriate notice had been given, meaning that it would not be protected action.  Mr Mackay knew that if they took action on that day, they would “probably be sacked by the managers and that they would then selectively re-hire when it suited them.”  Mr Mackay says that he voted against industrial action for this reason.  The majority, however, voted for taking industrial action, and so the employees completed clean-up procedures and left the plant.  Mr Mackay subsequently received a letter advising him that he had been dismissed for “serious and wilful misconduct”.  He was subsequently offered work upon the basis of what he described as “the trial enterprise bargain agreement”.  He declined this work.  I will explain this agreement at a later stage.

10. In cross-examination, Mr Mackay agreed that he had also been dismissed in mid-1994.  He acknowledged his signature on a document dated 27 June 1994 (ex 24) in the following form:-

    I hereby acknowledge that I have received from Australian Meat Holdings Pty Ltd a copy of the statement made by Deputy President Maher on June 22^nd 1994 in matter C31675 of 1994. 

    I further acknowledge and understand that the AMIEU Queensland Branch Executive has agreed to adopt the Deputy President’s statement in settlement of that dispute as per the correspondence from the AMIEU State Secretary to Australian Meat Holdings Pty Ltd dated June 24^th 1994, a copy of which I have also been provided with.

11. The statement by Deputy President Maher is ex 23.  Mr Mackay agreed that he had seen it at some stage.  I infer that a copy was given to him prior to his signing ex 24.  It refers to 118 employees who had been dismissed by the respondent on 7 June 1994 “because they walked off the job” and to various aspects of the dispute.  It then states:-

    If the executive adopts and accepts this proposal as the basis for settlement the Company will offer to re-employ the 118 dismissed employees.

    I add to that proposal these observations.  Firstly, those 118 employees who were dismissed did not, in my view, carry out the requirements of the dispute procedure and therefore the Company was not wrong in what it did.  Further, that in supporting employees who carry out the disputes procedure, which is a fundamental aspect of the proposal, I take that to mean that the union will not be offering to support those who do not carry out the procedures.  Finally, in a dispute in May 1993 over the dismissal of sixty-nine employees at this plant the Commission then issued a statement in which it noted that in future cases where the disputes procedure was breached the Company would take immediate dismissal action.  This is exactly what has happened on this occasion and involves some of the same people again. 

    In the future, the Company has indicated, it will not accept employees’ actions in not working in accordance with the procedure.  It will dismiss the workers concerned and it will not be persuaded to take them back.

12. I infer that Mr Mackay was re-employed in 1994 with knowledge of the respondent’s attitude as outlined in the statement.  Mr Mackay said that he did not think that such attitude related to his employment with the company during 1995 because he had been stood down over Christmas, 1994 and re-hired.  It is difficult to accept that statement at face value.  Exhibit 23 relates to industrial action in 1994, but refers to a dispute in 1993 and to the respondent’s attitude at that time.  The respondent had indicated, in 1993 and again in 1994, that it would take a serious view of unauthorized stoppages in the future.  There seems to be no justification for limiting the warning to the 1994 working year.  The matter is probably of little importance for present purposes in view of Mr Mackay’s acknowledgment that when he left work on 19 May, he knew there was a risk that he would be dismissed.

    Mr McCallum’s Evidence

13. Mr McCallum commenced at the Fitzroy River Meatworks in 1972.  He was dismissed in 1986 when the present respondent took over the operation.  He then worked as a house painter for two years, but recommenced at Fitzroy River in February 1988.  He continued there until July 1995.  Throughout 1994 and the first half of 1995, he was aware that the applicant was negotiating with the respondent.  Stoppages in support of the applicant’s claims occurred at numerous of the respondent’s plants.  Mr McCallum asserted that the respondent “retaliated” by setting minimum tallies at Fitzroy River and adopting the practice of standing down workers for one day after each one day industrial stoppage.  Between October 1994 and May 1995, there were several stoppages which Mr McCallum understood to be “protected action, approved by the Industrial Relations Commission”.  At some stage, the amount of the applicant’s claim was reduced.  It also agreed that negotiations for enterprise agreements could occur on a “shed by shed” basis, this being a reference to the respondent’s various plants.

14. Mr McCallum understood that at a meeting in April 1995 between the applicant and the respondent, the latter had agreed to lift the minimum tally if the various “sheds” formed separate enterprise bargaining consultative committees.  There was already such a committee in place at Fitzroy River, but the employees went through the process of re-electing it in order to comply with the “agreement”.  Notwithstanding this, the tally was not lifted.  By 19 May, Mr McCallum understood that there was to be a stoppage which was either to be decided upon or to commence on that day.  He attended work at about 6.30 am and at 9.30 am, went to a meeting.  Paul Jensen told the gathering that the planned stoppage would not go ahead at that time.  He also advised union members against a strike.  Many employees spoke in favour of such action, alleging that the respondent had reneged on the agreement to lift the tally.  Mr Jensen again advised against a strike.  A resolution was passed that they “go home for the day” in protest at the respondent’s “failure to honour their undertaking to lift the minimum tally”.  Steps were then taken to dispose of carcasses and meat in accordance with established practices, and employees left the premises.  On Monday, 22 May Mr McCallum reported for work at 6.15 am and found a meeting taking place at the gate.  Although Mr McCallum did not expressly say as much, it seems that the assembled employees were not permitted to enter the plant.  On Tuesday, 23 May Mr McCallum again attended the plant.  Again, employees were not permitted to enter.  He went home and during the day, received a letter of termination which is ex “A” to his affidavit.  It says:-

    Your participation in strike action on 19 May 1995 constituted serious and wilful misconduct, therefore we wish to advise you that as from that date your services were terminated.

    It is necessary that you return any outstanding equipment from the company store and upon a clearance receipt being issued, any monies owing to you can be collected from the pay office between the hours of 8.30 am and 1.00 pm.

15. Industrial action continued.  On 24 June, a mass meeting was held at the local football oval.  The applicant recommended a return to work, and this recommendation was adopted by the meeting.  Mr McCallum returned to work on Monday, 26 June.  On the following Wednesday, the respondent called a meeting of workers at which Mr Hughes and one Neville Tame (another officer of the respondent) indicated that the respondent wished to implement a trial enterprise agreement.  There were no full-time union officials at the meeting.  A vote of those attending indicated substantial support for such implementation.  Mr McCallum estimated the vote at 150 workers voting in favour and 7 against.  However, on the following day, a mass meeting of employees was held prior to commencing work.  The meeting resolved that no work would be performed under the trial enterprise agreement and that work would only be performed pursuant to the terms of the relevant award.  All employees then left the plant.  Industrial action continued.

16. On Saturday, 8 July another mass meeting resolved that those members to whom work had been offered should accept.  By this time it was appreciated that the respondent would probably not re-employ all former employees.  Mr McCallum returned to work on 10 July, and as no union delegates had been re-employed, he became an acting delegate.  Workers were unsure whether they were to be  employed on the terms of the trial enterprise agreement or pursuant to the award. Mr McCallum said that he spoke to Mr Hughes by telephone and was told that they would be working in accordance with the trial enterprise agreement.  The employees then indicated that they were opposed to working on those conditions.

1. On Tuesday, 11 July a further mass meeting was held at the meatworks.  Representatives of both the applicant and the respondent were in attendance.  A person named Haycroft, an industrial consultant, attended at the invitation of the respondent to act as an independent chairman.  The respondent’s representatives raised the question of the trial enterprise agreement.  A secret ballot was taken as to its implementation.  The result was 65 votes for and 65 against.  Mr McCallum asserted that Mr Hughes became abusive and tried to force another vote.  However no further vote was taken, and the employees went home.

2. On Wednesday, 12 July Mr McCallum again attended for work and offered himself, as he said, “for work under the interim award”.  It is not clear whether he made that statement to a representative of the respondent or whether it was merely his own personal intention.  He was told that unless he was willing to work under the trial enterprise agreement, he should go home.  He relayed this to the other employees, and none of them worked on that day.  On 19 July, at a further mass meeting, a union representative read orders from the Industrial Relations Commission, directing that employees return to work.  Mr McCallum understood that the applicant intended to appeal against this order.  A motion was carried that they reject the order of the Commission “until such time as the order could be appealed”.  He did not report for work and subsequently received a letter dated 19 July, terminating his employment.

3. In cross-examination, he agreed that the applicant had been conducting weekly, one-day strikes for some considerable period.  As a result of the respondent’s policy of standing down workers for one day for every day on which they were on strike, they were actually working for only three days in each week.  He agreed that he and the other workers at Fitzroy River had broken ranks with the union and that they had been advised that it was important that they not go on strike.  Mr McCallum had signed an acknowledgment dated 30 June 1994 (ex 22), in similar terms to that signed by Mr Mackay (ex 24) and referring to ex 23.  He said that he did not remember receiving a copy of ex 23, but it is probable that he did, and that he received it prior to signing ex 22.  He agreed that when he decided to go on strike on 19 May, he knew that he would probably be dismissed because the respondent had warned employees that “wild-cat strike activity” would not be tolerated.  He expected, however, that he might be re-employed at some later time, as in fact occurred.  He also said that at the meeting held on 19 July, he had understood that the order of the Industrial Relations Commission would be stayed.  He considered that he was not obliged to obey the order because he did not consider it to be fair.

   Other Witnesses for the Applicant

4. The witness, Paul Jensen, was a regional organizer for the applicant.  He said that enterprise bargaining had commenced between the applicant and the respondent in 1993, but by September 1994, it was bogged down.  The federal executive of the applicant took over the negotiations and set up a national negotiating committee.  It gave notice commencing a bargaining period, and industrial action followed.  The respondent responded by imposing minimum tallies, reducing the chain speed and standing down members so that they lost pay in addition to that lost as a result of strike action.  By 1995, “tension was very high at Fitzroy River and getting worse”.  Mr Jensen’s understanding was that by 1995, the union had reduced its claim for a 14 per cent pay increase to a claim for a 6 per cent increase and was agreeable to “works by works” negotiation, with a consultative committee being established at each workplace.  He understood that the respondent had agreed that once the consultative committees had been established, tallies would be restored to maximum levels.  He had expected this to occur by mid-May.  On 11 May, the national negotiating committee resolved that if the respondent did not honour its undertaking to lift the tallies, the Queensland branch of the applicant would call on members to stop work for one week by way of protected action.

5. On 19 May 1995, Mr Jensen received a telephone call from Max Burns, the assistant plant manager at Fitzroy River, who told him that employees had requested a full-time union official to be present at a meeting which was about to take place.  He attended and addressed a meeting of about 100 people from the boning section who were unhappy that the respondent had not honoured its undertaking.  They had expected industrial action on the following Monday.  Mr Jensen indicated that any such action had to be taken on a state-wide basis in accordance with national negotiating committee resolutions, and that it would be necessary for the various works to vote on the question.  This had not yet occurred.  He recommended that members take no action at that time and that they return to work.  He explained that if they took unprotected action, they would leave themselves open to termination.  He thought that Mr Hughes was awaiting an opportunity to take such action. 

6. Mr Jensen and a number of the applicant’s other witnesses spent a great deal of time denigrating Mr Hughes, complaining of his bad language and his attitudes.  I note these matters.  I have no doubt that Mr Hughes is quite capable of making his point in a forceful way and that his language may not always be appropriate to the most genteel social circles.  I also have the impression that the demonization of Mr Hughes has become a leitmotiv of the dispute between the applicant and the respondent.  Mr Hughes may have caused offence on occasions, but I doubt whether this contributed, in any significant way, to the problems with which I am presently concerned.

7. The meeting on 19 May continued, the boners being joined by members from another part of the meatworks.  Mr Jensen again explained the issues.  They voted to “go home for the day”.  The premises were then cleaned up, and the employees left.  Mr Jensen informed management of the decision and spoke to Mr Hughes, who advised him that he would advise the company’s position by the end of the day.  Later that day, Mr Hughes advised Mr Jensen that the company had terminated the employment of all members at Fitzroy River for misconduct, breach of the award and breach of contract.  He said that those members who had not been at work would be offered employment, and that the respondent would advertise for labour as soon as possible.

8. On Monday, 22 May a mass meeting took place outside the works.  Mr Jensen reported his discussion with Mr Hughes.  The members presented themselves for work, but they were not permitted to enter the plant.  A picket line was established on 22 May and remained in place until about 24 July.  Negotiations continued.  A conciliation conference took place in the Industrial Commission on 6 June.  Commissioner Grimshaw recommended that employees return to work upon certain conditions, but there was then a dispute as to the meaning of a relevant clause of the award.  There was a further conciliation conference with Commissioner Grimshaw on 14 June, at which he found that the May terminations were valid and that the respondent would have to comply with a preference clause in the award in re-employing labour.  On 15 June, there was a further mass meeting at which an officer of the union, Brian Crawford, gave a report on the proceedings before Commissioner Grimshaw.  A further meeting on 16 June, attended by about 180 members, resolved that members would only return to work upon the basis of the existing interim award and if all members who had been dismissed were re-employed.  On 23 June, in a telephone conversation, Mr Hughes said that the respondent would not refuse to re-employ any of its former employees.

9. A further meeting was held on 24 June 1995.  Between 180 and 200 people attended.  Mr Jensen recommended that they return to work.  The recommendation was accepted.  On Monday, 26 June all members presented for work.  Mr Jensen also attended, but was refused admission.  He said that the respondent offered work to about 100 or 150 members but refused work to union delegates and honorary officials.  Those who were offered work accepted.  Subsequently, Mr Jensen was told that the respondent called a meeting on that day to discuss the proposed enterprise agreement.  On 27 June Mr Jensen was informed that seven new employees had commenced at the meatworks, that they were not members of the union, had no medical clearances and no initial training.  Mr Jensen, with a Mr McPhee, went to the works but was not admitted.  Mr Jensen was subsequently told that Mr Parker, the respondent’s manager, had indicated that any person who did not want to work with the seven new employees could leave.  He also said that those former employees who had not been re-employed would not be re-employed in the future.

10. Mr Jensen subsequently heard of a meeting on 28 June which voted strongly in favour of a trial enterprise agreement.  On Thursday, 29 June he attended a meeting of about 155 members.  They resolved that they were prepared to discuss enterprise bargaining, but only in consultation with the union, and that they were presently prepared only to work under the interim award.  Union officials informed Mr Hughes of that position.  He was then in Rockhampton.  He said that there would be no work offered until members were willing to work under the new enterprise agreement.  The picket line was re-established.  Notice of protected action was given shortly thereafter, and industrial action commenced at all of the respondent’s meatworks on 3 July.  This action lasted for approximately one week.

11. On 4 July there was a conciliation conference before Commissioner Grimshaw.  The Commissioner “terminated the protected action”.  The union recommended that all workers at Fitzroy River go back to work.  Members at other sheds apparently did so.  Mr Jensen had a conversation with Mr Hughes in which the latter said that the respondent would re-employ all former employees.  On 5 July, a meeting was held at the gates.  Mr Jensen advised members of the terms of the Commissioner’s order and read it out.  A resolution was adopted, rejecting the recommendation.  On Saturday, 8 July there was another mass meeting at which a recommendation was made that members return to work.  That recommendation was accepted, and members returned to work on 10 July.

12. On that day, Mr Jensen attended at the meatworks.  Some members complained about having to work under an enterprise agreement.  They believed that such an agreement was about to be introduced.  They said that they weren’t being allowed to work under the terms and conditions of the interim award.  Mr Jensen said that:-

    At this point in time members made a decision that they would not go to work under the enterprise agreement terms.

13. Mr Jensen asserted:-

    It became apparent that the award was not being applied and that Parker and Burns were attempting to implement by stealth their proposed enterprise agreement which had not been agreed.

    No basis was given for this conclusion.

14. On Tuesday, 11 July Mr Jensen attended a meeting at the meatworks in company with Mr Crawford.  This was the meeting chaired by Mr Haycroft.  I have recorded the outcome of that meeting.  Mr Jensen alleged that on 12 July, Mr Hughes “attempted to start the trial enterprise agreement which involved working 10 hour days.  Saturdays were to be ordinary time and there was no overtime.  The trial also included a 40 hour week and no tally system, even though the day work rates were based upon the tally”.  He asserted that the “kill floor” refused to start work in protest, and then offered themselves for work under the interim award.  They did not work again until Monday 24 July.  A further meeting was conducted on 19 July at which Mr Crawford read out the orders of the Commission.  This included a “return to work” order.  A motion was carried that the members reject the order and await the outcome of an appeal.  Nobody presented for work on that day, and the picket line was reformed.

15. A mass meeting on 24 July was attended by approximately 130 members.  Mr McPhee, on behalf of the union, reported on the outcome of an application to stay Commissioner Grimshaw’s order.  He also advised that the matter had been set down for hearing before a Full Bench on 28 and 29 July.  Mr Jensen recommended that members return to work as the applicant had heard rumours that non-union labour was to be employed.  The meeting voted on the recommendation, the result being a tie.  Mr Jensen again strongly recommended that members return to work.  About twenty to thirty members then presented for work, and the majority subsequently followed.  Some were permitted to start immediately, whilst others were told that they would be contacted when needed.  Some members were neither employed nor told that they would be contacted.

16. In cross-examination, Mr Jensen said that the applicant and the respondent subsequently reached an agreement pursuant to which there are currently extended shifts and no tallies at the Fitzroy River meatworks.  This agreement has now been in place for about four years.

17. Walter James Curran was an official of the applicant at all relevant times.  He said that in about 1992, negotiations commenced, designed to develop a national award for meatworkers, including wage increases.  In June 1993 there was a claim for a 9 per cent wage increase for Queensland workers.  Enterprise bargaining proceeded slowly.  He alleged that the respondent was “particularly intransigent and adopted what I regarded as an ideological strategy in opposition to the claim”.  There was some difference of opinion in the appellant’s ranks as to tactics, including as to the desirability of industrial action, particularly against the respondent.  It was perceived that the respondent was aiming to remove the tally system and at “casualizing” the industry.  I take the latter reference to be to the employment of labour on a casual basis.

18. In 1994, the Industrial Relations Reform Act 1993 (Cth) came into operation, allowing for protected action, provided that employees complied with the provisions of the Act. In September 1994 the applicant established a national negotiating committee to take charge of the dispute in Queensland. A bargaining period was initiated and claims made. The respondent retaliated by imposing minimum tallies at Fitzroy River. Agreements were reached with other employers. Mr Curran considered that during 1994, the respondent was faced with potential financial difficulty relating to plant maintenance. He thought that the respondent was interested in reducing labour costs and wished to exclude the union or reduce its presence at work sites. It seems that Mr Curran, who was based in Victoria, was particularly concerned to ensure that Mr Hughes’ approach to industrial relations was not successful. Mr Hughes also caused concern by challenging the applicability of the relevant award to workers at Fitzroy River. As a result of his challenge, the union sought an interim award, which was granted in March 1995. I will discuss this award at a later stage.

19. Mr Curran said that the respondent maintained minimum tallies and slow chain speed from November 1994, throughout the period of dispute.  It also stood down employees at Fitzroy River for an additional day for each day of stoppage.  On occasions during 1995, Mr Hughes stated that he had prepared a proposed enterprise agreement, but he did not produce it until late in June of that year.  Mr Curran formed the view that Mr Hughes was looking for an opportunity to undertake the mass dismissal of employees.  Mr Hughes’ tactics were apparently successful to the extent that the applicant reduced its claim to a 6 per cent increase.  It also agreed to negotiation on a “shed by shed” basis.  Mr Curran alleged that in exchange for those concessions, Mr Hughes had agreed to raise the tally “and apply the award”.  On 11 May, the national negotiating committee resolved that Mr Hughes be urged to honour the undertaking and that if he did not do so, there should be further stoppages (ex 15).  The Fitzroy River workers were very anxious to take industrial action because, as it was said, they had borne the brunt of Mr Hughes’ tactics for longer than some of the other sheds.  The applicant was, however, anxious to maintain uniform action at all of the respondent’s sheds.  Mr Curran said that he did not regard the taking of industrial action, whether protected or unprotected, as being misconduct and that in 1994, the laws relating to protected action were still relatively new, suggesting that they were not fully understood. 

20. Mr Curran said that he understood Mr Hughes to have undertaken on 21 April to “raise the minimum tally”, depending upon the availability of stock.  In the course of cross-examination, he indicated that Mr Hughes had offered to do all in his power to achieve an increase in tally, subject to the availability of stock.  Mr Curran said that for reasons peculiar to the economics of the industry, management would choose either minimum or maximum tally, rather than any intermediate position.  His attention was drawn to the resolution of the national negotiating committee dated 21 April (ex 14).  It was pointed out to him that although the resolution emanated from the meeting at which Mr Hughes allegedly gave his undertaking, it made no reference to it.  Mr Curran’s explanation of this was unconvincing.  The following exchange is informative:-

    (Mr Herbert) And it was central to the resolution of that situation, from what you say, that Mr Hughes had given an undertaking, unequivocal undertaking, that he would move to a maximum tally, and yet a central feature of an agreement like that wasn’t even put in the resolution that was put to the employees?

    (Mr Curran)  I am sorry, I never said Mr Hughes gave an unequivocal undertaking.  I never said that.  And I’ve answered your question, and I will answer it again for you.  Mr Hughes, in the discussions, made it clear that he would restore maximum tally to the works, including Rockhampton, and in respect to the comment that you alleged to Mr Hannon about ten weeks, I explained to you why that would have said, and that Mr Hughes agreed and understood, it was understood that it was a proviso.  Anybody in the industry knew, it wasn’t a mandate to say that you’re going to get maximum tally day in and day out.  Provided the livestock were available, then Mr Hughes would do all in his powers to see that that would be accomplished.  That it what was done, and when this resolution would have been put to Rockhampton, I would have expected the people who were on the national committee, or at the works, would have related what the intent from the discussions were, from questions that would have been asked, and not to set anything in motion other than to get this going so you could start the way forward.

21. Mr Curran had previously said that the purpose of the resolution was “an attempt to have an agreement for us to proceed around the headings that had been negotiated.”  It seems curious in the circumstances that there should have been no reference to raising the tally.  Mr Curran agreed that in 1995, the appellant’s plan was to concentrate its resources on what was described as a “spearhead campaign” against the respondent.

22. Ross Michael Richardson was an official of the applicant and a member of the national negotiating committee during 1994 and 1995.  Mr Richardson said that he had directed that a fax dated 18 May 1995 (ex 18) be sent to Mr Hughes at either the respondent’s Dinmore plant or its Bremer River plant, enclosing a copy of the resolution dated 11 May, 1995.  The letter refers particularly to the question of minimum tally and proceeds as follows:-

    The position of the union remains unchanged in that the status quo must remain in place before any enterprise bargaining can proceed and that includes the application of the awards in the manner that applied prior to the present dispute.

    We are now in dispute with you over a number of award clauses which you have blatantly refused to apply in the correct manner, and by that I mean the manner in which they were applied for many years leading up to this dispute. 

    I would appreciate your urgent response and agreement to these issues and advise that unless we receive confirmation that, (1) the awards will be correctly applied and, (2) that AMH will act on increasing its production, thereby allowing the present employees to earn a livable wage and put an end to the disruptive industrial environment which is being caused by trying to starve the workers into submission, then the attached resolution of the combined negotiating committee may be activated.

1. The attached resolution revealed an intention to call on members to stop work for a week unless Mr Hughes gave an immediate undertaking to honour his “commitments” and a resolution to take whatever industrial action might be necessary to achieve an enterprise agreement with the respondent. Mr Hughes denied ever receiving this letter, by fax or post. It was faintly suggested that the letter and accompanying resolution might constitute notice of industrial action. They cannot do so because there is no indication of the starting date of the proposed action as required by subs 170PH(3) of the Act.

2. Mr Richardson said that the letter originated from the Brisbane office of the applicant.  He referred to ex 19, an extract from the office posting book, which suggests that the letter was posted to Mr Hughes.  Mr Richardson said that he also requested that the letter be faxed to Mr Hughes.  The only copy of the letter which has been produced bears fax markings which, to my mind, suggest that such copy was faxed from the Central District office of the applicant at 12.45 pm on 18 May.  Mr Richardson said that a copy was probably faxed from Brisbane to Rockhampton, but that would not account for these fax markings.  The applicant has not provided a “clean” copy of the letter or any copy bearing fax markings suggesting transmission from a fax machine at the Brisbane office.  The only version held at the Brisbane office is in the form of the exhibit.  No transmission report is available.  Mr Richardson said that at the relevant time, the applicant’s machine did not generate such a report.  No cover sheet has been produced of the kind generally transmitted as part of a fax transmission.  Mr Hughes said that such a letter, if received by the respondent, would have been referred to him.  Given Mr Hughes’ denial of receipt of either the letter or the fax transmission, and the irregular circumstances to which I have referred, I am not prepared to find that any such letter or fax was sent to Mr Hughes or the respondent.

3. Another aspect of the letter and the accompanying resolution are of interest.  In paragraph 2 of the letter and in paragraph 2 of the resolution, reference is made to increasing production to “above minimum tally”.  There is no reference to maximum tally.  Mr Richardson was of the view that the letter referred to a level between minimum and maximum.  This is inconsistent with Mr Curran’s evidence that in the industry, a decision to move to above-minimum tally would necessarily mean maximum tally. 

4. In cross-examination, Mr Richardson was also asked about a letter to Mr Hughes, dated 3 May (ex 20).  The letter reads relevantly as follows:-

   As you are aware, we have elected our negotiating committee at Fitzroy River and are in the process of formulating an enterprise agreement. 

   We have had three meetings with the local management and our committee has had some productive ideas put forward.  We have organized further meetings for our committee to discuss these ideas.  Our members are keen to progress to a position of at least earning a respectable wage.

   To achieve this, we would request that, as a sign of good faith, the company progressively increase the kill level and boning room tally between minimum and maximum tallies as per the award.

   The membership would view this as a positive sign from the company as an indication of their willingness to enter into a mutually beneficial enterprise agreement.

5. This appears to be a little inconsistent with a belief on the part of those sending the letter that there had been a firm undertaking by Mr Hughes to raise tallies upon the formation of a negotiating committee.  The letter came from “The On-Plant Negotiating Committee AMH Fitzroy River Works”, and it seems reasonable to infer that such a body would have been kept aware of the state of negotiations between the applicant and the respondent, particularly as its own election was allegedly in discharge of the applicant’s obligation given in exchange for Mr Hughes’ undertaking.  Mr Richardson agreed that by 3 May, the relevant people would have been aware of the undertaking allegedly given by Mr Hughes.  The next witness gave an explanation of ex 20 to which I will refer in a moment.

6. The witness, John Patrick Curran, had been employed at Fitzroy River for about twenty years prior to July 1995.  In 1995, he was the applicant’s works secretary at that meatworks and was a member of the enterprise bargaining committee.  There were about six meetings of that committee between 1994 and mid-1995.  In the course of its deliberations, Mr Hughes made it clear that the respondent wanted flexible working hours, no tally system and work days of up to ten hours.  In about April 1995, Mr Curran heard that Mr Hughes had agreed to lift the minimum tally “and go back to normal production levels within six weeks on the basis of an agreement with the union”.  He understood that the union had agreed to negotiation on a “shed-by-shed” basis.  He said that Mr Hughes did not keep his end of the bargain and did not lift the tally.  Early in May 1995, Mr Curran was told by Mr Darren McPhee that the national negotiating committee had decided on a stoppage if the tally was not raised.  He said that employees at Fitzroy River were angry that Mr Hughes had not kept his end of the bargain.  They understood that there was to be a stoppage to be decided upon at a meeting on one Friday in May, to commence on the following Monday, and to last for a week.  He understood that at the meeting on 19 May, Mr Jensen advised against any stoppage because it would be unprotected.  The meeting, however, decided upon a one-day stoppage on that day and that they would return to work on the following Monday.  The plant was then cleaned up, and the employees finished work.  During the following week, Mr Curran received a letter terminating his employment.  He has not returned to Fitzroy River.  At some time in June, he was contacted by a representative of the respondent.   He was told that there was to be a meeting, and that if it went according to plan, there might be work thereafter.  Mr Curran attended the meeting.  This was the meeting at which the vote on the enterprise agreement was equally split. 

7. With regard to the wording of ex 20, Mr Curran said that it was worded in that form to avoid further inflaming the situation.  In cross-examination, he said that his understanding of Mr Hughes’ undertaking as to the tallies had been that they would be gradually increased from minimum to maximum over a period of six weeks.

   Respondent’s Witnesses

8. Leslie William Parker was the plant manager at Fitzroy River.  He said that on 7 June 1994, 118 boners and slicers, including Mr Mackay, were terminated for refusing to work.  All other employees then took strike action in support of them, and the plant was closed.  The applicant invited the respondent to re-employ the terminated workers upon the applicant’s indicating that it would not support any member who acted in disregard of union policy and rules.  Negotiations and correspondence ensued, resulting in re-employment and the statement by Deputy President Maher to which I have previously referred.  The terminated employees were required to apply for re-employment, and every employee was required to acknowledge receipt of a copy of Deputy President Maher’s statement and of the adoption by the union of the terms of settlement referred to in that statement.

9. During the period from June 1994 to May 1995, there were ten periods of strikes at Fitzroy River, each of them purportedly protected action pursuant to the Act. On 12 May, the plant union president, Darren McPhee, requested permission to hold a mass meeting. Before any such permission was granted, the meeting took place. It was initially a meeting of boning room employees, but they were later joined by slaughter floor employees. Employees did not return to work immediately after the meeting. Union representatives sought to speak to Mr Parker and his assistant, Mr Burns, but they refused to speak to them whilst employees were not working. Employees then returned to work. Mr Parker subsequently met with union representatives. Mr Hughes also participated by telephone. Mr McPhee said that the stoppage had occurred because the company would not move to increase employees’ earnings. Mr Hughes said that if they were “fair dinkum”, he would come to Rockhampton and spend two days with them, discussing the matter.

10. Between 15 and 18 May, Mr Parker heard rumours that there was to be notice of a one-week stoppage over tally levels and that the notice would be given late on Thursday so as to prevent the respondent from cancelling the kill on Friday.  This implies that with enough notice, the respondent would not kill on the Friday, and that the applicant would aim to give minimum notice of industrial action to prevent the respondent from so acting.  Carcasses of beasts killed on Friday would normally be boned on the following Monday, after being kept in cold storage over the weekend.  It is not entirely clear whether stopping the kill would avoid further economic pressure on the respondent or increase economic pressure on employees by reducing their incomes.  It may be that both aspects were involved.  On the evening of Thursday, 18 May Mr Parker arranged for a security guard to watch the company’s fax machine during the evening and to inform him of any notice of stoppage given by the union.  No such notice was received.  On 19 May, Mr Parker heard that employees had held a meeting early in the morning.  As a result of something that he heard about this meeting, he contacted Mr Hughes, who told him to stop the kill.  Subsequently, Mr Jensen told him that he had tried to get the employees to return to work, but that they had refused.  Mr Darren McPhee said that he had also tried to bring about that result.  Employees left the plant at 9.30 am. 

11. On Sunday, 21 May Mr Hughes told Mr Parker not to allow employees to start work on the following day as he was considering alternative courses open to him.  Later on that day, Mr Hughes told Mr Parker that employees were to be terminated.  On Monday, 22 May Mr Parker spoke to Mr Jensen, who advised him that Mr Hughes had told him (Jensen) on Friday that the workers who had stopped work were to be terminated.  Mr Parker then saw a large group of people walk into the plant, approach Mr Burns and have a discussion with him.  Mr Jensen subsequently told him that the workers were offering themselves for work and that they had only left work on Friday in protest.  Mr Parker said that they should have considered the consequences before they stopped work and that they now had a problem.  There was a subsequent conversation involving Mr Hughes, Mr Parker, Mr Jensen, Mr McPhee and Mr J Curran.  Mr Hughes said that those who had taken part in the stoppage were terminated, that those who were absent from work on Friday for a legitimate reason would be offered jobs and that he would talk to the union about the future of those terminated.  Letters of termination were then prepared.  As the chillers were full, staff members commenced boning and were subsequently joined by employees from other plants. 

12. On 23 May, Mr Jensen and Mr Hughes discussed the dispute by telephone in Mr Parker’s presence.  Mr Jensen’s position was that employees were ready to go back to work on the conditions existing at the start of the dispute and to discuss enterprise bargaining.  Mr Hughes said that he did not accept this, as the applicant had been negotiating with the respondent right up to the day before the stoppage.  Mr Hughes pointed out that he had previously complained about discipline of employees who did not comply with the law relating to industrial stoppages.  The respondent subsequently advertised for labour.  A meeting of former employees took place at the gates on Friday, 26 May.  The various plant officials of the applicant and Mr Jensen then came to Mr Parker’s office.  There was a further discussion by telephone with Mr Hughes.  Mr Jensen said that Mr Richardson, the union president, had agreed that employees would not strike in future without appropriate sanction.  Mr Hughes said that he needed more than Mr Richardson’s assurances on that score.  There was a discussion about employing new employees and about the rules of picketing. 

13. On Wednesday, 31 May Mr Parker was told to prepare lists of suitable employees.  He already had this matter in hand.  Potential employees were subsequently contacted.  On 7 June, numerous applications for employment were received, although the picket line was still in place.  On 24 June, Mr Parker arranged to commence killing.  On Monday, 26 June 215 employees commenced, including Mr McCallum.  Mr Parker told people on the kill floor that they would be starting enterprise bargaining talks almost immediately.  On Tuesday, 27 June employees were accepted for the boning room.  They were also told about impending enterprise bargaining.  During that day, seven employees who had not previously been employed, started work.  Mr Parker heard rumours that there might be stoppages over their employment.  He told the boning room and kill floor employees that they had been employed during the strike, and that the company would not be terminating them. 

14. On 28 June the respondent’s proposals for enterprise bargaining were outlined at a meeting of employees.  A consultative committee was elected, and discussion ensued.  On two occasions, Mr Hughes offered to have the respondent’s representatives withdraw so that frank discussion could take place, but on each occasion, a majority of members indicated that this was not necessary, although there was no formal vote.  At the end of the meeting, there was a substantial majority in support of the proposal.  On the following day, however, union officials said that employees did not want to engage in the trial enterprise agreement and would only work under the award.  Mr Hughes said that he considered that they were on strike.  Subsequently, the respondent received notice of strike action from midnight on Sunday, 2 July until midnight on Sunday, 7 July.  This reference in Mr Parker’s affidavit should probably be to Sunday, 9 July.  As a result, staff came from other plants to process meat already in the chillers.

15. Mr Parker said that on Tuesday, 4 July the Industrial Commission determined that employees should resume work on the basis of a six week trial of the enterprise bargain.  He prepared the plant to kill on the following Wednesday, 5 July.  That day, he heard Ross Richardson on the radio, saying that the strike was not yet over and that the applicant intended to appeal against the decision.  The picket line remained in place.  Mr Parker was asked by Mr Tame to distribute copies of the Commission’s decision to the picket line.  He did this.  On 6 July, Commissioner Grimshaw ordered employees to return to work.  On Saturday, 8 July a mass meeting of employees voted to return to work under the interim award.  On Monday, 10 July the kill floor employees reported for work on the basis of the interim award.  Mr Parker tried to talk them into starting on the terms of the trial enterprise agreement.  Mr McCallum and a Mr Roots came to Mr Parker’s office and told him that they would not start the trial.  They spoke to Mr Hughes by telephone and received copies of the Commission’s orders.  They then returned to a meeting which was taking place.  On Tuesday, 11 July at a further meeting, a vote on the enterprise agreement was tied.  Mr Hughes then advised employees that work would be available for those who wanted it under the terms of the enterprise agreement, but subject to the result of the Commission hearing on the following day.  This aspect of the evidence may be of some importance.

16. On Wednesday, 12 July about twelve people reported to work and were employed under the terms of the trial agreement.  On Thursday, 13 July Mr Parker arrived at work at about 6.00 am and saw employees gathering outside the gate.  He spoke to them and was told that they were willing to work under the interim award.  Mr Parker said that the respondent would employ them under the trial enterprise agreement.  A picket line was then formed.  Only fifteen employees worked under the terms of the trial agreement.  On 14 July the picket line was still in place, but nineteen employees worked under the terms of the agreement.  On Monday, 17 July representatives of the applicant spoke to Mr Parker, advising that employees were prepared to work under the terms of the interim award and to negotiate an enterprise agreement.  Mr Parker responded that work was only available under the enterprise agreement.  There was a further telephone conversation with Mr Hughes in which he advised to the same effect.  Seventeen employees worked under the trial agreement on that day.  On 18 July, the Commission varied the interim award to permit the trial enterprise agreement with effect from 17 July.  About seventeen employees worked on 18 July.  On 19 July, those employees who had not returned to work were terminated.  This included Mr McCallum.  On Monday, 24 July the picket line was again in place, but only for an hour or two. 

17. Maxwell Edward Burns was the assistant plant manager at the relevant times.  He said that on 19 May 1995 he spoke to Darren McPhee after noticing that boning room employees had not gone back to work following their smoko.  He was aware that a meeting had taken place.  Mr McPhee said, “They are not having a go at you, they are having a go at us.”  Mr Burns said, “Over the 72 hours not being given?”.  I assume this to be a reference to notice of industrial action.  Mr McPhee said, “Yes”.  There was further discussion about trying to resolve the matter.  Mr Burns advised Mr Parker, who then advised Mr Hughes.  Later that morning, Mr Burns heard Mr Jensen addressing a meeting. Subsequently, Mr Jensen and Mr McPhee spoke to Mr Parker, Mr Howland and Mr Burns in Mr Parker’s office.  They said that the workers were going home in protest over the company not increasing the kill to maximum tally and that they would return to work on Monday.  Mr Jensen said that he had done everything possible to get them back to work. 

18. On 22 May there was a mass meeting of employees at the gate.  About 150 employees attempted to enter the premises.  Mr Burns told Mr McPhee that there was no work available.  Mr McPhee asked if workers had been sacked.  Mr Burns said that he had no instructions and directed them to leave.  Mr McPhee asked if there would be work on the following day.  Mr Burns said that he had not been advised of this.  The employees subsequently returned to the road.  Later that morning, there was a meeting between Mr Hughes, Mr Parker and Mr Burns, representing the respondent and Mr Jensen, Mr McPhee and Mr J Curran, representing the applicant.  It may be that Mr Hughes participated by telephone.  On Tuesday, 23 May a picket line was set up at the gate.  Negotiations continued.  On 31 May and 1 June, management discussed re-employment of identified personnel, and Mr Hughes instructed local management to telephone those people to inform them that the respondent intended to set up an enterprise agreement shortly after work re-commenced and that if they were interested, they should submit applications prior to 7 June.

19. On Wednesday, 7 June there was another meeting at the gate, following which numerous former employees came into the plant.  They said that they wanted to apply for jobs.  Mr Parker told them that they could get application forms from the office.  The group then left.  On 8 June, some of the people who had been invited to come to work did so.  On 16 June, Mr Crawford, an official of the applicant, inquired as to whether employees would be on piece-work or time-work if they started.  Mr Burns said that he would get back to him on this.  On 26 June, operations commenced with 215 employees processing about 181 head of cattle.  On 27 June, the kill level was increased.  On 28 June, management arranged a meeting with all employees at which Mr Hughes proposed a six-week trial of an enterprise agreement.  The meeting was adjourned at 11.00 am so that employees could consider the proposal.  It recommenced at 1.00 pm.  Only seven people voted against the trial. 

1. The application on his behalf must also be dismissed.

I certify that the preceding one hundred and twenty (120) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett.

Associate:

Dated:            25 May 1999

Counsel for the Applicant:

Mr S J Howells

Solicitor for the Applicant:

Nall Payne Solicitors

Counsel for the Respondent:

Mr A K Herbert

Solicitor for the Respondent:

Australian Meat Holdings (In House)

Date of Hearing:

29, 30, 31 March 1999

1 April 1999

Date of Judgment:

25 May1999