Australian Federation of Construction Contractors v Australian Building Construction Employees' and Builders Labourers' Federation

CATCHWORDS

Industrial

law

- application

deregister

industrial

organization of employees - application

for

leave

discontinue

Minister

for

Employment

and

Industrial

Relations - relevant

considerations

- discontinuance of

proceedings by consent.

Federal Court

Australia Act

1976, Order

2 2 , rule

2 of

Rules made thereunder.

AUSTRALIAN FEDERATION OF CONSTRUCTION TONTRACTORS AND ORS. v . THE ArJSTRALIAN BUILDING CONSTRUCTION EMPLOYEES' AND BUILDERS LABOURERS' FEDERATU

V No. 23 of 1981

Coram: Evatt, Sheppard and Morlmq JJ.

Dated: 19 December 1983.and 18 July 1984

Sydney

IN THE FEDERAL COURT OF AUSTRALIA

)	V No. 23 of 1981

VICTORIA

DISTRICT

REGISTRY

) )

DIVISION

INDUSTRIAL

)

BETWEEN:

AUSTRALIAN FEDERATION OF CONSTRUCTION

CONTRACTORS AND OTHERS

Applicants

THE AUSTRALIAN BUILDING CONSTRUCTION

EMPLOYEES' AND BUILDERS LABOURERS'

FEDERATION

Resoondent

JTJDGES MAKING ORDER

Evstt. Sheppard and Morllnq JJ.

DATE OF ORDER	: 19 December 1983
WHERE YADdl	: Sydney
TYE COTTFT C)RDEP.S TH?.T

'1.Leave

given

the

3ppllcant.

the

Honourable

Ralph

Willis,

the

Minister

of Stqte

fgr

Employment

and

Industrial Relations. to dLscont1nue t h e proceedings agalnst the respondent.

L A 1 1 questions of costs arlsinq

as the result

of the

qrant of

such leave and the withdrawal of the Minlster

from the proceedings be reserved.

L L e a v e be reserved

to any party to make such appllcation

in relation to those costs as he

or it may be advised.

18 Ju ly 1984

Sydney

Application discontinued by consent

No order made.

IN THE FZDEEXL COURT

OF AUSTRALIA )

)

NO. V23 of 1981

VICTORIA	DISTRICT	REGISTRY	)
)

DIVLSJQX

INDUSTRIAL

The HONOURABLE RALPE WILLIS (who

sues as Munster of State for

Employment and Industrlal

Relations) and OTHERS

Applicant

The AUSTRALIAN BUILDING

CONSTRUCTION EMPLOYEES

' AND

BUILDERS LABOURERS

' FEDERATION

Respondent

CORAM:

Evatt, Sheppard and Morling, JJ.

DATED: 19

December 1983

REASONS FOR

JUDGMENT

THE COURT: The hearing of evidence in this applicatlon for the cancellatlon of the repstration of the respondent as an

organizatlon under the Conclllatlon and Arbltratlon

Act 1904

ccmmenced on 8 November 1982. Evidence continued untll Narch.

1983. Evldence w2s given in respect of a varlety of Incldents

whlch occurred ln N.S.W., The Australlan Capltal Territory and

Nestern Australia.

The Court sat in Melbourne, Sydney and

Perth.

The oral evldence extended over 3,000 pages of

transcript; there are numerous exhlblts themselves	involving
many hundreds of pses.

On 16 >larch 1982 the Court, on

the applicatlon of all

appllcants, adlourned che proceedings wlth llberty to the parties to apply. The sarllcatlon was consented to by the

respondent- Ths parpose L T the adjournment was to enanle the

- L -

Fart les

con fe r

unde

t he

cha l rmansh ip

o f

M r .

V o s t l ,

r e t l r e d c m m l s s l o n e r

o f

t h e

Australian

Conc l l l a t lon and

A r b l t r a t l o n C o m l s s l o n , t o a s c e r t a l n w h e t h e r

some

agreement

c o u l d b e r e a c h e d w n l c h m l g h t b r i n g m d u s t r l a l 2 e a c e l n t o

t!-e

S u l l d l n g

a n d

c o n s t r u c t l o n

I n d u s t r y

l n

Aus t ra l la .

The

subsequen t

h l s to ry o f

t h e

m a t t e r

1 s

r e c o r d e d I n t h e

t r a n s c r l p t s

o f

t h e

p r o c e e d l n g s

o f

t h e

C o u r t

f o r

2 1

March

1983,

Aprl l

1983,

16 May 1983

and

October

l a s t .

I t 1 s

summarised

a t pp.

3391

- I

3 3 9 2

c f t h e t r a r l s c r i p t f o r

3 1

October

1983. .

1 2 DecemDer

I 9 8 3

t h e

m a t t e r

was

a g a l n l n t h e

l l s t .

t h a t d a y t h e Y l n i s t e r

S t a t e

far

Employment

and

I n d u s t r i a l

X e l a t i o n s

s o u g h t

l e a v e

t o

d i s c o n t m u e

t h e

p r o c e e d l n g s .

d l d

so because Eke r e sponden t

has

o f f e red an unde r t ak lng

t o

Its

f u t u r e

c o n d u c t .

The

under tak lng

has

b e e n

o f f e r e d

c n d e r t a k l n g

t o

e a c h

t h e

applicants

m c l u d l n g t h e

Xnls te r

and t o

t h e

C o u r t .

I t

1 s

n o t

a c c e p t a b l e

t o

a n y

applicant

o t h e r

t h a n

=.?e I4 ln l s t e r .

The rernalnlng applicants, vho

comprlse a ::'mmex sf employer

o rganlsa t lons

l n

t h e

bullcilncj

l x d u s t r y ,

cne l r

Counse

desc r lbe

che

ande r t ak lng

as :

"meanlngless ,

uncer-caln,

unenforceable

and

whol ly anacceptab le ."

Dur lnc

tne

course

the argument

wnlch

took

place

on 1 2 I)ecember

1963

d l f f l c u l t l e s were

raised. oy sembers or'

tne

Cour t

-boat

t::e

Court accepting

?'le cnde r tnk lng .

T!.c

first

q u e s t l o n

t o be

de-cermind

l s 'whethcr

the

Cour

should

accep t It .

l=.t:?er

txan

set

lt o u t

i n

t h e s e

r e a s 0 r . s

have

appended a copy of r;he under tak lng

them.

have

- 3 -

appended copies of the three attachments referred

to In it.

For present purposes they

are suffrciently described

Ln paras.

3 , 4 and 7 of the undertaking itself.

An undertaking to the Court is glven rn lieu of an

injunctlon and, if broken, is treated as the equlvalent of

an order for

the purpose of enforcement; Thomson Australia

Holdings Pty. Llmlted

v . Trade Practlces Commisslon (1981) 37

A.L.R. 66 at p. 7 6 .

The malority of The Hlgh Court 1n that

case added (ibid.

) :

"As an undertaklng 1 s glven In lleu of an

ln]unctlon and is enforceable m llke

manner, the principles

which govern the

grant of an ~n~unctlon

by a court must

guide it in decldlng whether It should

accept an undertaklng."

The Court 1 s always concerned to ensure, so far as

lt can, that Its orders are certaln and provlcie clearly for

what parties affected

by them are bGund to

-10 or refrain

frcn doing. Since undertaklngs are enforceable ln the same

way as orders

the same attentlon ts <ne t-llxs of an

undGrtaxlng

0:fzred

to the Courz 1s requlred 2 s 19 t:Is case 135 an order.

L LS

1 s so wnether the undeztaklng 1 s sccepzasle :a

:he

clalmazt 13 the zroceedlngs

->r

nct.

- 4 -

he accepts It 1 s a matter for him.

He 1 s not concerned

with the same ccnslderatlons

as are we.

iiavlng consuiered the terms

of the undertaklng we

are satisfled that

It shculd not be accepted as an

undertaklng to the Courc.

It 1s too uncertaln.

:<e do not

give decalled. reasons for thls concluslon. It 1 s sufflclent to draw attention EO ?ara. 1. It may have been one thlcg lf it had sazd:

..l.

L~ comply wlth Its obligatlons as an

organisatlon of employees regiscered under

the Act."

Ninds may differ on thls questlon.

5ut the vlce of the

undertaking In its present form

1s In che use of the words,

the sane terms as other organlzations

of employees

reglstered undsr the Act."

The 'Zuestion is what meenlng does the undertaklnq :lave especlally taklng Into account tne

iiords last quctei.

One posslble neanlng 1 s that tne responasnt

wlll only be

in breach of that ;,art cf tne undercwlng If any breaches

of the act committed by iz are rare sxtenslve c)z more

serlous than Dreaches

committed ty other reslstered

organlzatlona. Tnere are about

150 orgaixzatlons of

employees reglsterei.

A11 no doubt behave ln markeely

difisrent ways. Thls ;n

?art .ill1 Se dus to the

different

l.-.cds-,rles 13 ; g h l ~ i : ti-elr members are encaged,

ck.e 2lfferer.t

.3robl;TLs whlch csnfrant thelr

executl7:es

and rnemoers and.

a hosc of ocaer naz tc l - s .

If It were suqqested that zhere

ha2 Seer! a breacn of yara. 1, how could one sver

c?,?cermlne

satlsfactorlly wne;her

that was so or ngt? The ]erdstlck

1 s almply too vsque

and. uncertaln.

Of course,

- 5 -

the undertaking

may be intended to mean somethlng

dlfferent

to that whlch we have postulated. Bat

If so, that meanlng

has escaped us. If it 1s lntended to mean somethmg

dlfferent, that only highllghts the dlfflculty whlch there

is in the Court's acceptance of what	the respondent has
off ered.

During the hearing there

was discusslon with Counsel

for the respondent

In which it was suggested that the wording

of para. 1 mlght be altered to make clear

what was meant.

Since the adlournment we have been informed

by the solicitor

for the respondent that no change	to the wordlng of the
par-graph 1 s possible.

Apart from the meaning of the

words used ln para.

there needs to be consldered the terns of

para. 2 .

This

obliges the respondent to have regard

"to the pollcles of

the trade union movement

and Its (the respondent's) collectlve

com.ltment to such pollcles." That puts a quallflcatlon on

the obllgatlon lmposed

by para. 1 whlch lxreases the

uncertainty of the coctent of the obligatlon

In para. 1.

Para. 2 seems to envisage that there may be clrcumstances

whlch the respondent wlll

not be obllqed to comply with para.

1 notwithstanding that It will nevertheless be In breach of

obllgations lmposed upon

lt by the Act under whlch

lt 1 s

registered. Apparently, ~f -ihe pollcles of the trade uni3r.

movement run counter

to the provisions

of the Acn, the

provlslons of para. 1 are not to apply.

For the reasons we have given

we decline to accept

the undertaking whlch has been offered. Nevertheless,

we are

- 6 -

stlll asked to

grant the Minister leave

to discontlnue the

proceedlngs. The application 1s not opposed by the rernalnlng appllcants nor by the respondent. Ordmarily, the Court wlll

grant a party leave to dlscontlnue proceedings brought

5y Dun

2rovlded it 1s satisfled that appropriate orders have been nxie Ln

relatlon to costs and that no injustlce

wlll be caused the

other party by the bringing of fresh proceedings

If the Court

1s of oplnlon that it would be unlust

that fresh proceedings

be brought. Nornally the Court would not be lnterested ln

dolng ok:?erwlse than glvlng effect

to an appllcation

f o r

leave to discontlnue	where no other party to the proceedlngs
opposed it.

We have paused to

conslder, however, the clrcumstances

of the present case., It

seems to us that an applicatlon under

section 143 of the Act

for the cancellation

of the reglstration

of an organlsatlon mvolves questrons of publlc policy. There

1s a question In our mmds whether an appllcatlon for leave

to dlscontlnue such a proceedlnq is governed by the

orSilna=y

rules to which we have referred. The evldence

which we have

so far nad ln the matter ralses,ln our oplnlsn, Sericus

natters for zonslderatlon. Ne have not heard =ne respondenc's

cas? and the appllcants' case 1s stlll mcomplete, so our

statement 1 s made tentatlvely.

It by no means represents any

concluded

vlew about the evldence we have heard. But

lt 1s our

tentative vlew concernlnq that evldence whlch nas made us

pause CO conslcer whether we shoulc? not lnvestlqate the

questlon of whether

conslcieratlons of public pollcy mlght

mllltate aqamst OUT accedlng to the Minister's appllcatlon.

- 7 -

Yavlnq reflected on

the matter we have declded

that we should accede to it. In the adminlstratlon of the Act as a whole, the Xlnlster plays a substantlal part. He

was obviously intended by the legislature to

rrresent che

2ubllc lnterest in many situations. Such a

sitilatlon 1 s an

application under sectlon 1 4 3 itself, the sectlon speclf1call:J provlding that the Nlnister may make an appllcation pursuant

thereto.

If the Mlnlster, havmg instltuted such an

applicatlon, wlshes to wrthdraw

It, It would seem, even If

publlc policy conslderations may be taken into

account, that

he, representlnq as he does che public

interest, should be

allowed to act as he wlshes.

If the Mlnister subsequently

wishes to be heard in

the matter he may "intervene in the

public interest;"see subsection 106

( 1 ) of

the Act. We wish

to make lt clear,however,that we are leavlnq open

the questlon

of whether, in the event of an appllcant other than the

Ninlster wishmq to discontlnue proceedings

of thls kind,

leave to dlscontlnue wlll involve an appllcant demonstrating

that there are no puDlic policy conslderatlons

mlch rnllitate

against the grant

of the appllcatlon. We leave for the future

tne question of whether that would	be a relevant conslderatlon
or not.

Althouqh we are not prspared to zcce?t the underta.<;cg

offered ay the respcn?enk as an unciertakmg to the Court, : .e

Ere ?repared formally to note as

m undertaklng qlven t3

the ap?ilcants includlnq the Ylnlster.

It may nave relevance

for these proceedlnqs wnlch the remalnlng appllcants deslze to

prosecute.

It may z l s o have relevance 1

any other proceedlngs

of thls k m d are mstltuteci l n the future by the .Ymister or

- 8 -

any other party.

Ke glve leave to the

Munster t o dlscontlnue

the proceedings against tne respondent. We reserve all

questlons of costs arlslng as a

result of the grant of

that leave and the withdrawal of the Minlster

from the

proceedinqs.

Leave IS reserved to any ?arty to

nake

such applicarlon m relation to those costs as ne or	1t
may be advised.

It 1s next appropriate to

give directlons as to

the future hearing of the matter.

That 1 s something which

we wlsh now to dlscuss wlth Counsel.

UNDERTAKING

WkEREAS:

Tk,e respondent:

( I )

recognlseb

That

such

reg!s;ritlon

creates

dutles

and

rerpons:‘.Ll:les

r ezs i e red o rgan l sa t l cns

m?:-

a112 TO ctr!se

t b e

n-%eanr provided

by The ACT for the preve?r.on znd

se:?!emeqt

lndusrrlal s!spu;es

and

other;lse

refrain

from

conocci

preventing

or hlnderlng

the

a c h l e v e r e q t of

the o b ~ e r r s

of ?ne kc: and

(2)

a f f l r n s

:?S

desire

and

lntenaon

to par?lclpate rn The preve”tl.cn

and

setr lernent of

such aisputes :R

a c r o r i s n c e wLlh :he

ACT.

THE RESPCNCZNT TEEREFORE:

HEXESY UKDERTAKES TO :he Fecerz!

Court

Aus?ral,a a d t o rhe

a p d i c a n t s as

follows:

To comply W I Z > 1% ob1:garlons

In :ne same

Terms

x + e r

0rganisa:lons

of ernoioyees reglsie-ed uncer the

.Act.

In corn?:j:ng

wi th 17s obllga::ons,

?be organ:saT:on

wl l i necessarllv

k v e r e g a r d

t o

;he

?ollc;es

of ?he

trade

unlon

movemen:

and

ITS

collective csnm::ment

TO sucn pol~c.~s.

4. The organ:satlon, as an expression of 11s c o m m i t m e n t , r e a i f l r r s Its preparedness ts give the undertakings m t e rms of the Memorandum

Understandlng

entered

into

between

the

Natlonal

!naus;:lal

Conszuctlon

Council

and

the

organ1sat:ons

the

bulldlng

and

ccxxuc t :on i ndus t ry (A t t achmen t

2).

compIy wlrh

Its

obligations

an organlsat ion reglsrered under

the Act

and

the

t e rms

the

Memorendum

of Understanding, tne

organisa i lon

agrees

tha t

developing

agreements,

policies,

and

guidelines for the

Improvement

of 1ndust:laI relatlonshlps

the

ouilaing

and

construction

Industry,

the

p r lme

ob jea ives

t3 Se

consldered are:

(a)

set t le

award

dlsputes

in a manner

conslstenr

wlth

:he

economlc

s t ra teg ies

the

Federa l

Government

and

t o

improve the efflclency	and	stabl1l:y	of	the	building	and
construcaon industry;

(5)

ehmlnate

the

lncldence

of wldesoread

industrlai

action

support

clalms

for

increased wages or better conaitlons

employment,

and

mlnimise

the

level

industriai

d1sputat:on

over o ther Issues;

(c)

To achleve

wages

anc conaltlons T I x t a r e

f a i r

and

equ l t ade

h a v i n g

r e g x d

t o

t h e

s t a t e

?he

economy

and

the

c1rCumstances	preva:ling	~n th,e	jul loing	and	ccnsxuct ion
industry;

(d)

, To

introduce an allowance. and to adjust existlng allowances in

accordance

with

past practice, m recognltlon

the

substant la l

changes

wnlch

are

implemented

w , h n rhe

industry by this Agreement;

(e)

meet

regularly

consider

emerging

and

recurrlTg

indusxlal

relations problems; and

-2-

(i)	To ma~n:aln c:spuTe se?:llng	procedures, w d X : m 3 r w e ;h?
operarlon of ;hose orocedures.

The

or;anlsat~on

agrees

to c o a n i i ~tse!f t o ?he sceclf lc

unler

;akns

In :he Agre-meni.

6 .

1he

0rgan:sarlon

recognises

Thar

the

Agreenenr

se t

oci

I n

i ? t t acnmenr 2 has not been able

TO be i u l l y irncienen:ed,

bu t

(a)

:he

organ1sat:on IS, cons:s;ent

with the rerms 0:

ine

Agreement,	c3n:lnclng	t3 confer	to r e x h s e t ? l e m e n t	cf	m e
Agreemenr

and (b) ;h= arganlsatlon

uncertakes

that

ITS comm:tnents

~n ierms oi

The Act w1ll be	the	same as other or~an l sa??ons	reglsTer-d
cncer the ~ C T .

The

undertakmgs

given by ;he

organ:sZr:on

are

supcorred

by :ne

ACT4 as $er out !n ?be

decmon

;he

ACTU

L e c u t l v e

( A t t a c a n e n t

3).

-,-

IN THE FEDERAL COURT

OF AUSTRALIA )

)	V No. 23 of 1981

VICTORIA

DISTRICT

REGISTRY

) )

INDUSTRIAL DIVISION

)

BETWEEN :

AUSTRALIAN FEDERATION OF CONSTRUCTION

CONTRACTORS AND OTHERS

Applicants

THE AUSTRALIAN BUILDING CONSTRUCTION

EMPLOYEES' AND BUILDERS LABOURERS'

FEDERATION

Respondent

CORAM: Evatt, Sheppard and Morllng JJ.

DATED:

18 July 1984

STATEMENT ON DISCONTINUANCE OF PROCEEDINGS

THE COURT: The hearing of thls appllcatlon for the dereglstration of the respondent IJnlon commenced m Melbourne ln November 1982. The hearlnu proceeded In Melbourne and

Sydney durlng the balance

the year and In Perth

February 1983. It

was

have proceeaed In Melbourne In

March of

that gear, but at the request

the parties, who

then lncluded the Minlster

f o r

Employment and Industrial

Relatlons,

was

adjourned

enable

dlscusslons

and

neTotiations to take place. There was no further hearlng of evidence In 1983. On 1 2 December 1983. the Minlster applled

f o r leave to dlscontlnue the groceedlngs

on hls part. On

L .

December 1983, we granted hlm leave accordlnqly.

The remainlnq

applicants

who

are

various

employer

orqanizatlons representlnq employers enqaqed in the bulldinq appllcation. Nelther the Court nor the parties could proceed

wlth

the hearing immedlately. It

was fixed to resume in

Melbourne on

1 May 1984. Evidence was taken in Melbourne

throuahout

that

month.

part

June

could

made

available for the hearinq. It resumed in Sydney on

July

1984. and contlnued untll 1 2 July 1984, when counsel for the

appllcants requested an adjournment

in order

to permit

foreshadowed

sppllcatlon

for

leave

dlscontinue

the

proceedlnqs to be made. The matter was adjourned untll today

for this purpose.

Thls morninq counsel for the applicants announced that

pursuant to Order 22 r.2(l)(c) of the rules

of thls Court,

ail partles

had

consented

to the

dlscontlnuance

the

proceedings wlth

the consequence that the Court's leave was

not required.

The rule in question provides:-

" 2 . ( 1 ) Sublect to sub-rule

( 2 1 a party maklnq

a clalm for rellef may

discontmue a

proceedlnq so far as concerns the whole or any part of any clalm for

rellef made by hlm

........ ........ ........ ........ ........ ...

(c)	where 3udqment has not been entered - wlth the consent of all the partles;"

5 .

Sub-rule 2 ( 2 ) has no application to the circumstances of thls case.

As we

read the rule, the parties are entltled to take

the course

announced

counsel

for

the

applicants.

obvlates the need for leave to be obtalned. Upon fillng In

Court

the notlce

discontinuance thls mornlna, the

proceedlngs came

to an end.

It 1 s therefore inapproprlate

for the Court to express any view on the propriety of the

course the partles have taken whether from the polnt of vlew

interest

public

the

otherwise.

[1984] FCA 218

19 Dec 1984