Australasian Meat Industry Employees' Union v Frugalis Pty Ltd

[1987] FCA 436

Re: THE AUSTRALASIAN MEAT INDUSTRY EMPLOYEES' UNION
And: FRUGALIS PTY. LTD. and MOREX MEAT AUSTRALIA PTY. LTD.
No. QLD Q6 of 1987
Industrial Law - Statutes
19 IR 386

COURT

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY
INDUSTRIAL DIVISION
Pincus J.(1)

CATCHWORDS

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.

Conciliation and Arbitration Act 1904, ss.33, 109 and 122

HEARING

BRISBANE

#DATE 4:8:1987

Counsel for the Applicant: Mr D.R. Hall

Solicitors for the Applicant: Messrs. Poteri Woods & Co.

Counsel for the Respondent: Mr R. Mack

Solicitors for the Respondents: Messrs. Michael Quinn & Co.

ORDER

The application for an interlocutory injunction be dismissed.

There be no order as to costs.

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

JUDGE1

This is an application by the Australasian Meat Industry Employees Union against two respondents seeking orders which are fully set out in an application which has been filed. An example of the orders sought is sufficient, namely the first order, that the first respondent take all necessary steps to permit members of the applicant to resume work at the Mary Valley Abattoir as ordered by Commissioner Caesar on the 28th day of July 1987.

1. 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.

2. Mr Day goes on to say that the management of the abattoir passed in 1984 to the second respondent and negotiations took place as to the terms and conditions upon which labour would be employed, resulting in an agreement, which is before me, dated the second day of April 1984. The agreement is in the following terms:
   
   

"In order to allow work to commence at the above premises, the following has been agreed:-

1. That until a determination by the courts of which Award the Abattoir is to work under, the Abattoir is to work under the Queensland Meatworks Industrial Agreement Award. The 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 affidavit complains of various breaches of the award which are not of any present relevance, but admits that there was substantial compliance with it until about June 1987.

1. Mr Day says that on 4 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.

2. However, the second respondent, the affidavit says, refused to comply with that intimation and, despite the availability of members of the applicant for work, the plant remained substantially idle. On 16 June 1987, there was a further hearing before Mr Commissioner Caesar, and he made a direction which is as follows:
   
   

"I hereby direct that Morex Meat Australia Pty. Ltd. open it's (sic) Maryvalley Abattoir and abide by the terms and conditions of the agreement signed on 2 April 1984 by Mr M.R. Doube on behalf of Morex Meats Australia Pty. Ltd. and to continue to work in accordance with the terms of that agreement."

1. 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 members were dismissed from their employment.

2. On 22 July a board of reference recommended that the four employees be continued in their 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.

3. The affidavit explains that on 28 July 1987, the matter came back before Mr Commissioner Caesar and that the first and second respondents claimed that in fact and in law the first respondent was the employer. Mr Commissioner Caesar made an order which is the basis of the proceedings before me.

4. The order which is exhibit E to the affidavit in question concluded as follows:
   
   

"Until that question is decided, I can see no solution to the problems existing at the plant and I intend therefore to stand this matter aside to call on an 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 application I order that work resume at Mary Valley and that work continue in accordance with the direction of this Commission made on 9 July 1987. I further order the Union to take all steps necessary to obtain a return to the status quo which existed at that date at both the Mary Valley and Roma works of Morex Pty. Ltd. It follows that the company is to take whatever steps necessary to facilitate the carrying out of this order by the Union.

The question of reinstatement, as recommanded (sic) by the Board of Reference, of the four employees subject to the notification of the company in C. No. 6587 of 1987 which I am standing aside, will be dealt with by the Commission at an appropriate time after the resumption of the work in accordance with this Order has taken place."

1. There is also an affidavit by Mr G.R. Sutton, the Central District Secretary of the applicant union which I 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 an intention of complying with the order made by the Commission.

2. 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.

3. The circumstances are such that, if I have the power to order compliance with Mr Commissioner Caesar's order, I should in my opinion do so. Mr Hall of counsel for the applicant, in his helpful argument, made some remarks with reference to that subject. He said, in effect, that the court's power arises under s.109(1)(b) of the Conciliation and Arbitration Act 1904, which empowers the Court to enjoin an organisation or person from committing or continuing a contravention of this Act or the regulations, and he referred to Part VA, which transfers the jurisdiction of the Court there mentioned to this Court. The contention which Mr Hall advanced was that my jurisdiction is enlivened by s.109(1)(b) read in conjunction with s.122, which reads:
   
   

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

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 s.122 and therefore a breach of the order. He very candidly, however, drew my attention to the circumstances that there formerly was a provision, s.109(1)(a), which specifically empowered the grant of such relief as is presently sought, and invited my consideration of the question whether the repeal of that provision had any effect upon the interpretation of s.109(1)(b).

1. Mr Hall's argument, which seems to me to have considerable strength, is that s.109(1)(b), although it does not specifically allow any injunction to be granted for breach of an order or award, does so where the breach is wilful. He said that some attention should be directed to the question whether or not that construction can stand with the changes made which resulted in the insertion of s.33 in the Act.

2. Mr Hall informed me that he was not aware of any decision of the question, but that the point has been discussed by Gray J. in Medcraft v. Federated Engine Drivers & Firemens Association of Australia and Ors., 1984 8 IR 211 at p 218. The discussion there is not conclusive, but nevertheless should be quoted. The remarks which his Honour made included the following:
   
   

"When s.109(1)(b) of the Act was first enacted, it, together with the former s.109(1)(a), was the sole express grant to a newly created court, the Commonwealth Industrial Court, of any power to grant injunctions. The court should, therefore, be reluctant to construe s.109(1)(b) as enlarging either the kinds of matters in respect of which injunctions may be granted, or the classes of 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 to criminal offences. In such cases, where no other specific provision for interim restraining orders is made, the grant of an injunction under s.109(1)(b) may be appropriate ... In my view, the power now given to this Court by s.109(1)(b) does permit the grant of an injunction where the conduct alleged constitutes a criminal offence under some provision 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 interlocutory injunction may be granted upon the principles which normally apply to such relief.

Although he argued vigorously that s.109(1)(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 be so restrained. In particular, he refused to commit himself to the proposition that an injunction would lie to restrain an employer from dismissing an 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 injunction from committing the offence of wilfully making default in compliance with the award, under s.122 of the Act. Mr Stockdale's reluctance has not made it any easier for me to reach the conclusion I have reached as to the applicability of s.109(1)(b) to a contravention of s.132A. The distinction which Mr Stockdale attempted to make between a "contravention" and a "breach" of the Act is not, in my view, a real distinction. I note that s.188(1)(a) and (b) refer to a "contravention" of various provisions of s.5. It may be that the question of an injunction to restrain a wilful 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 33), and to the specific repeal of the former s.109(1)(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.

1. Prior to the 1970 amendment, s.109(1)(a) and (b) of the Act read as follows:
   
   

"The Court is empowered -

(a) to order compliance with an award proved to the satisfaction of the Court to have been broken or not observed;

(b) to enjoin an organization or person from committing or continuing a contravention of this Act or a breach or non-observance of an award".

1. The current position with respect to construction of statutes is assisted, on one point of view, or complicated, from another point of view, by the possibility of referring to Hansard. When the Conciliation and Arbitration Bill 1970 was introduced, the then Minister for Labour and National Service made remarks which throw light upon the present problem and which seem to me to be worth quoting at some length. The Minister in his second reading speech said inter alia:
   
   

"The Bill changes the sanctions provisions, otherwise called the 'penal clauses' of the Conciliation and Arbitration Act. Sections 109 and 111 of the Act dealt with industrial 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 will be necessary for the parties to have taken advantage of the conciliation or, if necessary, arbitration of a presidential member of the Commonwealth Conciliation and Arbitration Commission."

The Minister then went on to refer to discussions which had taken place and had resulted in the legislation and continued:

"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 to see every reasonable effort made to solve disputes between management and labour by the processes of negotiation, conciliation and, where necessary, arbitration. When reasonable efforts have failed and there is strike action sanctions ought to be available."

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 lie between the parties. I believe that the existing sanctioning process which involves the use of the Court's injunction-making powers under section 109 and its power to punish for contempt under section 111, are no longer appropriate or desirable. I believe they suffer from 2 main deficiencies. Firstly, there is the immediacy of their availability. 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 is no reflection on the Court. The Court cannot concern itself with the underlying causes of matters which come before it under sections 109 and 111. Therefore, there is a provision that before a sanction can be sought, the party seeking that sanction must notify the Commission. Furthermore, the Commission will be constituted by a presidential member and he will be required to make every effort to settle the dispute that exists between the parties. Not until he has issued a certificate will it be possible to proceed in the Industrial Court."

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 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 it could be shown to the court that orders made in 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 is being swept away. In future, there will be 1 sanctions proceeding and not 2."

1. The Bill to which the Minister referred became Act No. 53 of 1970 and it was that statute which achieved the repeal of s.109(1)(a) and also deleted from s.109(1)(b) the words "or a breach or non-observance of an award." Under s.4(1) an award includes an order.

2. The main foundation of the argument, to which I am grateful to Mr Hall for having referred me, that s.109(1)(b), in combination with s.122 does not permit the court to grant injunctions for breaches for orders or awards is a historical one. It may be that, if one were to read s.109(1)(b) and s.122 literally, without reference to this history, the conclusion would have to be in accordance with Mr Hall's submission.

3. Apart from the history, however, there is a circumstance which makes one pause before adopting the literal construction, 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 the Minister in the passage I have read, then that procedure would be as applicable to breaches by the union as to breaches by an employer.

4. 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 regret - and the application will be dismissed without costs.