Campbell, R. v White Industries Pty Ltd

IN THE FEDERAL COURT OF AUSTRALIA'

)

NEW SOUTH WALES DISTRICT REGISTRY

)	No. G229 of 1986

GENERAL

D I V I S I O N

)

IN THE MATER of the Trade Practices

Act 1974

BETWEEN:

RODNEX CAMPBELL

Applicant

m:	WHITE INDUSTRIES FTY
LIMITED AND OTHERS

I	Respondents

I	I	CORAM: matt J
i

I	: 22	January	1987
!

PLACE

: Sydney

I	MINUTES OF ORDER

On 12 August 1986 the Court ordered that the application

by way

of	interlocutory relief referred to in the application herein

I	dated 6 June 1986 be dismissed and reserved casts.
THE COURT ORDERS THAT:

the applicant pay each

of the respondent's costs

of and

incidental to the application

for interim rellef.

_ _

Note: Settlement and entry

of orders is dealt with in Order 36

of the

Federal

Court

Rules.

!	IN THE FEDERAL COURT OF AUSTRALIA	)	No. G225 of 1986
NEW SOUTH WALES DISTRICT REGISTRY	)	No. G226 of 1986
GENERAL DIVISION	)	No. G227 of 1986
1	No. G229 of 1986
I

IN THE MATTER of the Trade Practices

Act 1974, Section

45E(1)

BEIWEEN: ALLAN VICTOR MULLARKEY AND

ANOTHER

First Applicants

m:	AUSTRALIA PTY LIMITED AND
CONSTRUCTION ENGINWING
OTHERS

BETWEEN: DOUNSKA JENCAR

Second Applicant

m: RICHARD

CROOKES AND

ASSOCIATES PTY LIMITED	AND
OTHERS

BETWEEN: EDWRll JOSEPH McNAMARA

Third Applicant

m: LEIGHTON

CONTRACTORS

PTY

LIMITED AND OTHERS

BETWEEN:

RODNEY CAMPBELL

Fourth Applicant

m: WHITE

INDUSTRIES FTY

LIMITED AND OTHERS

CORAM:

Evatt J

I -

:	22 January 1987

PLACE:

Sydney

REASONS FOR JUDGMENT

On	5 May 1986 the Court, as presently constituted, in matter

G164/86, Roberts

v Murlar Ptv Limited .S Others (Roberts' case),

made

certain

interlocutory

orders

against

applicant's

employer, the first named respondent including the following:

That the first named respondent continue to employ the applicant without imposing conditions on such employment, that the applicant,

(a) resign

from

the

Australian

Building

Construction

Ehployees' and Builders Labourers' Federation;

(b) become

member of the Building Aorkers' Industrial

Union of Australia;

(c)

surrender his membership with the Australian Builders

Construction

Employees'

and

Builders

Labourers'

Federation.

The Building Workers' Industrial Union of Australia, (the BWIU or

the organization)

an organization of employees registered under

the Conciliation and Arbitration Act

1904 was named as the second

respondent in that matter, the third respondent being

an official

within the organization being its job steward at Mr Robert's then

place of work. whilst the fourth named respondent was the person

whom it was alleged gave directions on behalf of the employer to

the applicant

as to the work he was required to

do at that place

of work. In that matter, as appears from the statement of claim

filed therein, the applicant, following his dismissal from work

by the first named respondent, alleged

a contravention by the

first named respondent and the second named respondent, the

organization, of paragraph

45E(1) of the Trade Practices Act 1974

(the Act) and made application for interim orders as set out

therein.

Section 45E(1) reads:

45E.(1) Subject to this section,

a person who has been

accustomed, or is under

an obligation, to supply goods or

services to, or to acquire goods or services from,

a second

person shall not make

a contract or arrangement,

or arrive at

an understanding, with a third person (being

an organization

of employees, an

officer of such an organization, or another

person acting for or

on behalf of such an

organization or

office) if

the

proposed

contract,

arrangement

understanding contains

a provision that

i	(a)	c has	the	purpose	of	preventing	or	hindering	the
I

I	’ - first-mentioned person from supplying or continuing to

supply

any

such

goods

ervices

the

second

person

or, as the case may be, from acquiring or continuing to

acquire	any	such goods or services from the second
person;

(b)

has

the

purpose

preventing

hindering

the

first-mentioned person from supplying or continuing to

supply any such goods or services to the second person

except subject to a condition (not being

a condition to

which the supply of such goods or services by the

first-mentioned

person

the

second

person

has

previously been subject by reason of a provision of

contract existing between those persons)

to the

persons to whom, as to the manner in which,

or as to the

terms on which, the second person may supply

any goods

or services; or

purpose

preventing

hindering

the

first-mentioned person from acquiring or continuing to

acquire any such goods or services from the second

4 person except subject

to a condition (not being a

condition to which the acquisition of

such goods or

services by the first-menfioned-person from-the second person has previously been subject by reason of a contract existing between those persons) as to the

persons to whom,.as to the manner in which, or as to the

terms on which, the second person may supply any goods

or services.

“Services” are defined in the Act

as:

4 .

"Services" includes

any rights (including riuhts

in relation

to, and interests

in, real or personal property),

benefits,

privileges or facilities that are, or are to be, provided,

granted or conferred in trade or commerce, and without

limiting

the

generality

of the

foregoing,

includes

the

rights, benefits, privileges or facllities that are, or are

to be, provided, granted or conferred under

(a) a contract for or in relation to

(i) the performance of work (including work of a professional nature), whether with or without the supply of goods;

(ii) the provision of, or of the use or enjoyment of facilities for, amusement, entertainment, recreation or instruction; or

(iii)

the

conferring

rights,

benefits

privileges for which renumeration is payable in the form of a royalty, tribute, levy or similar exaction;

(b) a contract of insurance;

(c)	a contract between a banker and a customer of the

banker entered into in the course of the carrying on

by the banker

of the business of banking; or

(d)

any contract for or in relation to the lending of moneys,

but does not include rights or benefits

being the supply of

goods or the performance of work under

a contract of service;

When the matter was called on for the hearing of the application

for interim orders there

was no

appearance by the first named

respondent employer. Even though the hearing of the interim

application extended beyond one day, at no stage was the first

named respondent represented before the Court.

The alleged facts leading up

to the applicant's dismissal from

work in that case were that at all relevant times the applicant

had

been a member

the

Australian

Building

Construction

Employees

and

Builders

Labourers'

Federation

(the BLF); that

E .

was not a

member of the BWIU nor did

he wish to become a member

of that organization; that on 28 April 1986 he was directed to attend at the first respondent's office at Rydalmere and there spoke with the fourth named respondent and asked by him to sign

an application form to become

a member of the

BWIU. After

signing the said form, the applicant was asked to surrender his

BLF ticket and was told that if he did not hand that ticket over,

he would not have his job with the first named respondent. This

he refused to do and was then dismissed. Other details

of the

circumstances surrounding that applicant's dismissal are fully

set out in the ex

tempore reasons for

judgment given on 5 May

1986 (not yet reported).

At the conclusion of the evidence,

Mr Aothman of Counsel, who

appeared for the BWIU, submitted that accepting for the purposes

of argument the facts as disclosed in the affidavits and the

particulars set out

in the statement

of claim, any "services"

which

the

first

named

respondent,

the

employer,

had

been

accustomed

acquire

from

the

applicant,

were

but

performance of work under a contract of service and that that

being so ,

were by definition (see

5.4 of the Act) excluded from

the meaning of "services"

in s.45E(1).

Mr Oslington QC, who with

Mr Haylen

appeared

for

Roberts,

argued

that

the

word

"services" is given

a very wide and Inclusive meaning

and after

lengthy submissions persuaded the Court that there was, on those

facts,

an arguable case to

presented to the Court by the

applicant at the hearing of the matter, particularly as regards

paragraph (c) of s.45E(1), that the "services" alleged to have

been acquired by the employer respondent from the applicant and

the acquisition of which had been prevented by the alleged

arrangement between the employer and the

BWIU went beyond the

mere performance of work under

a contract of service. It is

stressed that the Court on that interlocutory application did not

have the advantage of hearing evidence from or submissions

generally from the respondent employer.

Accordingly, in all the circumstances the Court, being satisfied that the balance of convenience was clearly in the applicant's

favour, made the above interim orders on

5 May 1986. Perhaps it

should be presently noted that the BWIU

in that case had not led

any evidence to support

a submission made by Mr Rothman that the

granting of the said interim orders could well lead

to industrial

problems at the particular building site at which the applicant

was employed or

at any such site to which the applicant might be

sent to work pursuant to any order of the Court.

Roberts' case came on for hearing before Pincus

J, commencing 12

August 1986.

Judgment, dismissing the application was given on

22 August 1986 (not yet reported).

Further, it was notorious that some

few weeks before 5 May 1986,

the

BLF

had

been

deregistered

pursuant

Commonwealth

legislation (Acts

No. 6 and 7 of 1986 (Cwlth)) and, as a

consequence of the said legislation, was unable

to represent its

members on building sites throughout various parts

of Australia

including New South Wales and Victoria

or be

a party to any

federal award, or

represent those members before the Federal

Arbitration Commission. Legislation having similar consequences

within New South Wales and Victoria was enacted by both the New

South Wales and Victorian Parliament.

It was also notorious that at that time several members of the only to resign from the then unregistered association but also refused to join the BWIU. Further, it was notorious that the

policy of

“no ticket-no start“ was strictly adhered to

by all

unions

the

building

industry

in those

States

and

that

employers generally in the building industry

in those States

followed such

a policy.

A further consequence of the enacting of

the said legislation and regulations made thereunder was that

thereafter the work which was formerly covered by the BLF was

allocated to (inter alia) the BWIU leading to

a new Award

covering work formerly covered by the Building Construction earlier Award had been binding on the BLF,being handed down by

the Federal Arbitration Commission on

25 June 1986, effective on

and from

16 May 1986 (see Print

G 3455).

It is clear in my view that the expressed reasons for granting

the

said

interim

orders

Robert’s case

had

been

either

misunderstood of deliberately misrepresented by the BLF and its

8 .

officials, it being immediately claimed by the

BLF

and those

officials that the Court had ordered reinstatement of

BLF

member who had been dismissed by his employer for refusing to

join the

BWIU

and that all members who had been

so dismissed

should

a result of that decision be reinstated by their

respective employers.

This then was history immediately before the filing in this

Court of five applications, including the four particular matters

shown in the heading hereof, on

6 June 1986.

In each

of the above-listed four matters the applicants in their

original statement of claim alleged a

contravention of s.45E(1)

of the Act by their respective employer, each being

a corporation

within the meaning

of the Act and the

BWIU and the Master

Builders Association for the State where each employer employed each respective applicant.

The additional fifth application filed on

6 June 1986 was matter

No. G228f86, Siddons

v Kern Konstructions Pty Limited and Others,

wherein Mr Siddons alleged

a similar breach of s.45E of the Act

by his employer, Kern Konstructions Pty Limited, the

BWIU and the

Master Builders' Association of

New South Wales.

The five matters were listed on

16 June 1986 for the hearing of

the applicants' application for interim orders. Mr Oslington QC

with Mr Wheelhouse, appeared for

all applicants and Mr Tobin QC

with Mr Rothman and Mr G. Harris, appeared for the BWIU. Mr

Callaghan of counsel appeared for the Master Builders Association

of New South Wales,

a named respondent in all matters other than

G225

J 06.

Additionally, in G225106, Mullarkey and Another v

Steven Crabb and Others (Mullarkey's case), Mr Uren QC with Mr

Lawrence appeared for the State of Victoria and for Mr Crabb, the

then

Minister

for

Industrial

Relations

the

Victorian

Government; whilst Mr Trew QC with Mr Vickery appeared €or the applicants' employer, Constructions Engineering Australia Pty

Limited; Mr Dejula, the employer's representative who terminated

the applicants' employment and for the sixth respondent, the

Master Builders Association of Victoria;

In matter

G226/06,

Jencar v Richard Crookes and Associates Ptv Limited and Others

(Jencar's case), Mr McDevitt of counsel appeared for the first

named respondent, the applicant's employer, and for Mr Barry

Murphy and Mr Jack Campbell, respectively the employer's Regional

Manager and foreman; In matter G227106, McNamara

v Leishton

Contractors Ptv Limited (McNamara's case), Mr

Holmes of counsel

appeared for the first named respondent, the applicant's employer

and its project manager, Mr Simon Oliver; In matter G220/86,

Siddons

v Kern Konstructions Pty Limited and Others (Siddons'

case), Mr Ashburner of counsel appeared for the first respondent

employer; in matter G229106, Campbell

v White Industries Pty

Limited and Others (Campbell's case), Mr McCarthy and Mr Lamprati appeared for the first named respondent employer and Mr Phi1

Mouton

and Mr Ron Moses respectively the employer's project

manager and foreman.

I	I
L

10.

Appearances having been taken in,all matters, the Court suggested that the application for interim orders in the then five matters could be heard together. "his was objected to by the respective

respondents but each indicated that they were quite happy to have

such applications for interim orders heard each following the

other with all parties' counsel in attendance, but on the clear

understanding that the evidence

in one case was not

to be used as

evidence in any other unless consented to.

the belief that

this would have

an overall effect

of shortening each matter, that

procedure was adopted.

It is convenient at this stage to point out that early during the

hearing of the applications Mr Siddons in matter

No. G228/86,

through his counsel, withdrew his application for interim orders

for reasons which need not be stated. Accordingly, that matter

was then stood over for further directions.

At an early stage Mr Oslington indicated that the applicants were

not

seeking

interim

orders

against

Master

Builders

Association of New South Wales. Mr Callaghan then sought leave,

which was granted, that

e be excused at will, indicating that

-. .

-- -

. .

wished to put final submissions to the Court as to the proper construction of s.45E(l).of the Act.

I	This he did on 12 August

I	1986.
I I
i
I	I
I

11.

W e n the first matter

was called on for hearing on 16 June 1986,

Mr Uren immediately submitted that the Court had no jurisdiction

to hear the application against his clients as the Act did not

apply to the Crown in right

any

of the States or any

instrumentality or

any agent of the State of Victoria (see s.2A

of the Act and Bradken Consolidated Ltd

v Broken Hill Proprietarv

CO Limited

(1979) 145 CLR 107). Mr Oslington then withdrew the

;

claim against Mr Crabb and the State

of Victoria indicating that

formal notice

of discontinuance in that regard would be filed.

1	This in fact was done on	16 June 1986. Despite such withdrawal
I

Mr Uren sought leave to appear with

Mr Lawrence as amicus curiae.

!	After	hearing	submissions	in	this	regard	the	Court,	being
I

satisfied that any orders against the employer respondent

in that

case may well affect the rights of the State of Victoria and

Crabb, granted such leave (see Sharkey	& CO Ptv Limited v Fisher
(1980) 50 FLR 130).

Affidavit and oral evidence was led in each of the four matters.

In all, the hearing of the evidence

in all four matters occupied

some nine days

up until the morning

of 4 July

1986.

On the

afternoon of

3 July 1986 Mr Oslington

had

indicated

that

overnight

applicants

intended

prepare

an amended

application in each of- the -four matters-.- At -the conclusion

the evidence on 4 July, discussion took place between Counsel and

submissions, the parties having been made aware sometime before

that owing to its commitments, the Court would not be able to

the

Court

future

programming

for

the

hearing

I . . -

12.

further sit in the matter until early in August.

Mr Oslington

then indicated that

he had reduced the applicant's submissions on

the matter of principle to writing which were then handed up. He

then commenced to speak

to his written submissions. At that

stage Mr Uren reminded the Court that there had been some

discussion on 3 July of amending the application in each of the

matters and that

did not wish to prepare further written

submissions during the adjournment in July if the application as

filed was to be amended. Amended applications apparently had at

that stage not been completely engrossed

so the Court permitted

Oslington

address.

Oslington

finished

his

oral

submissions shortly before 1.00pm when the Court adjourned for

lunch. On resuming at 2.15pm

Mr Oslington sought leave to file

an amended statement of claim in each of the four matters which

were

accepted

after

was

indicated

that

the

respective

respondents had

no objection.

Paragraph 6 and 12 of the	amended	statement	of	claim	in
Mullarkev's case reads:

The first

respondent

(employer)

has

been

accustomed

acquire services from the applicant.

PARTICULARS:

. _

. _ .

The	applicant was employed by the first respondent for

approximately 12

months prior to April 1986 to perform work

as a builder's labou'rer (for the first respondent during that

period. (Emphasis added).

Whilst the other statements of claim

v ry marginally as to length

of previous work, the substance of paragraph

6 does not vary.

l .'

The amended statements of claim set out further particulars of

other alleged services. These appear

paragraph 12 of the

statement of claim in Mullarkey's case and in paragraph

7 in the

I .

other matters. Paragraph 12 (or 7) reads:

Further, prior to 23 April

1986, the first respondent made

arrangement or came

to an understanding with the second

respondent andlor the third respondent which contained a

provision for the purpose or purposes which included the

purpose of preventing or hindering the first respondent from

acquiring and continuing

to acquire the services from the

applicants except subject

to a condition

(which was not a

condition to which the acqulsition of such services had

previously been subject to) that the

applicants:

(i) resign

from

the

Australlan

Building

Construction

Employees and Builders' Labourers' Federation;

(ii) become a member

of the second respondent.

PARTICULARS

A The

particulars of the said services are:

(a)	the right, benefit or privilege of having a free

selection in

the class of persons to perform work

without reference to membership or non-membership

of	any particular trade union, organisation or

federation;

the right, benefit or privilege of accepting an

offer by a person to enter into

a contract of

service

without

reference

tohat

person's

membership

any

particular

t ade

union,

organisation or federation;

the right, benefit or privilege--'af- retaining in

employment a person

without

reference

that

person's

membership

non-membership

any

particular trade union, organisation or federation;

the right, benefit or privilege of not having to

terminate or suspend

'a person from employment

because

that

person's

membership

non-membership

any

particular

trade

union,

organisation or federation;

14.

the right. benefit or privilege of not having to

requlre persons employed to become

a member of

particular trade union andlor resign membership	of
a trade union, organisation or federation.

This paragraph as paragraph 7

is repeated in each of the other

three amended statements of claim, the only variation being the

date in April	1986 prior to which the alleged arrangement etc was
made.

i	Mr Uren then addressed	the Court in support of his written
l

submissions up until

4.30

pm when the matter was stood over

part-heard until

8 August 1986.

When the matter resumed on Friday,

8 August 1986 Mr Wheelhouse,

in the absence

of senior counsel

f o r the applicant, sought leave

to further amend the statement

of claim in all matters, copies of

which had only some minutes before been handed to the respective

parties. Objection was taken by all parties to the filing

of the

further

amended

statements

claim

that

stage

of the

proceedings.

was

uggested

least

some

of the

respondents, if not all, that if accepted it would be necessary

that each matter be re-opened

order that further evidence

might be called. After hearing argument the Court adjourned

- __-

. .

- -.

the request of Mr Wheelhouse so that he might seek instructions.

!	When the Court resumed at 11.30am, Mr Oslington who was part heard in another Court and who had been granted short leave of
i	absence therefrom stated.

. .

15.

I have been told Your Honour there

is some difficulties with

the amendment. May

I simply say this Your Honour, that the

amendment only seeks to accommodate that which Mr Uren

addressed on the last occasion.

The	Court thereafter during 8 August heard submissions from all

parties as to whether the further amended particulars of claims should be received at that stage of the respective proceedings

before adjourning the matter to Monday,

l1 August 1986.

On 11 August 1986

Mr Levine QC with Mr Rudge announced his

appearance for the applicants in each of the four matters. The Court, during the forenoon, heard submissions from

M Levine and

counsel for some of the respondents in respect

of the filing of

the further amendments. On resuming at 2.15pm

Mr Levine stated:

M R LEVINE:

Your Honour, on Friday on behalf of each of the

applicants,

application was made to your

Honour to file a pleading described as

a further

amended statement of claim. There has, as

understood it

on Friday and today, taken place

argument as to whether

or not your Honour should

allow the amendment or

amendments sought to be

made as constituted

that

document.

instructions are to inform your Honour that the

application to amend is withdrawn-

m m:

Costs, your Honour?

HIS HONOUR:

I will reserve costs. That is to say, we are

back to the application as formerly filed and the

. ._

statement of claim that was filed

in court on 4

July 1986	which is called the amended statement
of claim.

M R LEVINE:

That is right. Our present position is, your

Honour,

that

the

applicants

seek

relief,

interlocutory relief; and their case is as set

out

and

pleaded

the

document

hitherto

described as the amended statement

of claim on 4

July.

16.

HIS HONOUR: And the applicants submissions are

put by Mr

Oslington on

4 July?

MR LEVINE:

That is right, your Honour.

HIS HONOUR:

do not know whether Mr Wheelhouse added to

those other than to seek leave to file the

amended statement of claim.	I do not think	he
did.

MR WINE:

In any event, your Honour, the position is this:

that	no further submissions are to be made on

behalf of the applicants in support of that case. made hitherto; and in the light of what your

Honour has just said as to costs,

I have nothing

further to say; and with no disrespect either to

the court, and it

is not to be taken in any

disparaging way of the applicants for whom

I have

appeared this morning, but

I would seek your

Honour’s leave to withdraw with

my junior, and my

clients will be represented by

attorney, Mr

Isaksen, for the balance

of these proceedings.

Thereafter and on the following day,

12 August 1986, Mr Trew, Mr

McDevitt, Mr Callaghan, Mr Holmes, Mr Rothman and Mr McCarthy put

submissions on behalf of their respective clients opposing the

granting of any interim orders. The Court then invited the

solicitor for the applicants to put any submission in reply

orally,

indicating

that

was

not

intended

grant

adjournment to enable such submissions to be reduced to writing.

The applicants pressed for such an adjournment. After hearing

the

solicitor

for

the

applicants

the

Court

refused

that

application stating:

HIS HONOUR: In the matters presently before the Court,

Nos

G225, 226, 227 and 229 of 1986 I reject the

application that the matters be adjourned to

enable the applicants

to await the transcript

that either

Mr Oslington or Mr Wheelhouse, who

are otherwise engaged this week, can read the

transcript

and

make

written

submissions

17.

reply. I reject

hat

application

the

circumstances.

Without

detailing

hose

circumstances at this stage it

is not proper, in

my view, that the matter should be delayed any

further as I am of the firm view that the court

should

indicate

its

decision

to the

application

for

interlocutory

relief

the

various matters and

I feel sure there is nothing

that can be put in reply which would cause the

court to change that view.

In all the circumstances, in each

of the matters

where each

the respective applicants seeks

interlocutory

relief

against

nominated

respondents I am of the

view

that

interlocutory relief sought in each respective

matter should be refused for varying and various

reasons.

I will publish full reasons in each

matter together with orders as to costs.

An essential condition for

a breach of

s.45E to have been

committed is that

a person must have been accustomed, or under an

obligation, to supply or acquire goods or services to or from a

second person.

The two persons in these matters, as pleaded,

were the employer as the first person and the employee as the

second

and

the

allegation

was

that

such

employer

acquired

services from the employee.

It is clear that the performance of work under

contract of

service is excluded from the meaning of "services" within

s.45E.

It will be seen that paragraph

6 of all the amended statements of

- .

claim have the performance of work as the particulars	of	the
services acquired by the first respondent employer.

All applicants being employed under a contract of service thus allege that the services the employers have been accustomed to

1s.

acquire from the applicant are the performance of work. This is

not a service within the definition of "services"

the Act

because it has been expressly excluded from that definition (see

s.4).

Thus paragraph 6 of each amended statement of claim does

not support a cause of action alleging

a breach of s.45E.

Turning then to paragraph

12 (or 7 ) .

First, it is extremely

unlikely that any of paragraph

12 (or

7 ) services are in fact

services within the meaning of the Act. They do not fit within

the language

the statute. In my view, the elements of the

performance of work under

a contract of service, such

as the

initial offer to work is

an integral part of the performance of

work and should not be treated separately

so as to constitute

service distinct from the performance of work.

I I

Secondly, assuming that any of the said services constituted

service within the meaning of the Act, they are not services

which, according to the language of the statute, the employer had

been accustomed to or under

obligation to acquire from the

employee. For example, the right, benefit or privilege of having

free selection in the class

of persons

to perform work is

derived from the general law and not acquired from the applicant.

I	For this reason the said services in paragraph	12	(or 7 ) of the
I

amended statement of claim are in

view not services acquired

by the employer from the applicant. In this regard

I agree with

and adopt the reasons

of Pincus J in Roberts

v Murlar Pty Limited

Others at p 20 of his roneoed reasons for judgment delivered on

22 August 1986.

Further, it is alleged

by each of the applicants that there was

an arrangement or understanding between their respective employer

and the BWIU. That arrangement, so the argument goes, prevented

the alleged services being acquired from the applicant by the

employer unless the applicant became a member of the BWIU.

The evidence is that members of the BWIU would not work with non-members who were performing BWIU work. This, in effect, is

the "no tlcket-no start" principle which,

as pointed out earlier

herein, has operated in the building industry for many years and

is recognised not only by Unions but by most, if not all

employers

that

industry.

Assuming,

for argument,

such

arrangement exists, such arrangement would, in my view,

directed to the performance of work by the non-member applicant

and not the alleged services set out in the particulars filed

under paragraph 12 (or 7 ) .

For example, the arrangement does not affect the employer's free

selection in

a class of persons to perform work. The employer

can still employ any person he wishes to.,

What the arrangement

affects is the ability of that employee to actually perform work

- _.

at a building site under the contract of service.

For these reasons the Court on

12 August 1986 was of the opinion

that

the

interlocutory

mandatory

injunction

sought

each

applicant in each of the cases should be refused.

The test for

20.

granting such a mandatory injunction is set out in the judgment

Gibbs

The

State

Oueensland

v Australian

Telecommunications Commission

(1985) 59 ALR 243.

It is not

sufficient that there merely be a serious question

to be tried

but the Court needs to have a "high degree of assurance" that the

applicant will succeed before granting such an injunction, even

if the balance of convenience is in favour of the applicant.

It is unnecssary in my view to make reference to the evidence in

each

matter

directed

the

question

the

balance

convenience. Suffice it to say that that evidence is such that

the Court would not have found in the applicants' favour in most,

if not allrof the matters on the point. In this regard there was

evidence which is accepted that should the Court make orders as

asked then there was a real possibility that industrial unrest at

various building sites would follow.

Nor it is necessary that any definitive determination be made as to submissions put by the respondents in Mullarkev's case and Campbell's case that, because the building work on which the applicants in those two matters was work being performed on

behalf

the

Victorian

and

New

South

Wales

Governments

respectively, then the- section of-the A&	does not -apply (see
Bradken's case and Sharkev's case).

The applications by way of interlocutory interim relief were

rejected by the Court on 12

August 1986.

The formal orders of

the

Court

each

matter

that

application

for

interlocutory relief set out in each application is dismissed. incidental to each respective proceeding.

I certify that this and the

fw4h

preceding pages are

a true copy of the

Reasons for Judgment herein of his

Honour Mr Justice

matt

Associate

Dated:

2a-J 3&,w7,

f9s7

Counsel for the applicants in G225/86: Mr Oslington QC and	Mr
Wheelhouse.

Counsel for the lst, 3rd and 4th respondents in G225186: Mr Trew

QC and Mr Vickery.

Counsel for the 2nd respondent in G225/86: Mr Tobin QC,

Rothman and

Mr Harris.

Counsel for the State of Victoria and Mr Steven Crabb, Minister for Industrial Relations in the Victorian Government: Mr Uren QC and Mr Lawrence, as amicus curiae.

Counsel for the applicants in G226/86: Mr Oslington QC and	Mr
Wheelhouse.

Counsel for the 1st.

4th and 5th respondents in GZ26186:

McDevitt -

- .

Counsel for the 2nd respondent in G226186:	Mr	Tobin QC,	Mr
Rothman and Mr Harris.

Counsel for the 3rd respondent in

G226186: Mr Callaghan.

Counsel for the applicants

in G227f86: Mr Oslington

and Mr

Wheelhouse.

Counsel for the 1st and 4th respondents in G227186: Mr Holmes.

22.

Counsel for the 2nd respondent

in G227186: Mr Tobin QC,

Rothman and Mr Harris.

Counsel for the 3rd respondent in G227186: Mr Callaghan.

Counsel for the applicants in G229186: Mr Oslington QC and

Wheelhouse.

Counsel for the lst, 4th and 5th respondents in

G229186:

McCarthy and

Mr Lamprati.

Counsel for the 2nd respondent

in G229186: Mr Tobin QC,

Rothman and Mr Harris.

Counsel for the 3rd respondent in G229l86:

Mr Callaghan.

[1987] FCA 16

22 Jan 1987