Concrete Constructions Pty Ltd v The Plumbers & Gasfitter

Re: CONCRETE CONSTRUCTIONS PTY LIMITED; CONCRETE CONSTRUCTIONS (NSW) PTY
LIMITED; SABEMO PTY LIMITED; LEIGHTON CONTRACTORS PTY LIMITED; CIVIL & CIVIC
PTY LIMITED; WHITE INDUSTRIES LIMITED; JENNINGS CONSTRUCTION LIMITED; BARCLAY
BROS PTY LIMITED and JOHN HOLLAND CONSTRUCTIONS PTY LIMITED
And: THE PLUMBERS AND GASFITTERS EMPLOYEES' UNION OF AUSTRALIA; GLEN
BATCHELOR; ROLAND ROBSON; ALEXANDER SOMERVILLE; DONALD CAMPBELL and PAUL
WAKEHAM
Nos. NSW G51, G54, G55, G57-G60 and G64 of 1987
Trade Practices - Practice and Procedure
18 IR 68

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Wilcox J.

CATCHWORDS

Trade Practices - Secondary boycotts - Bans imposed upon items of work to be performed by building sub-contractors - Loss occasioned to head contractors - Applications for interlocutory injunctions - Whether purpose of bans was to cause loss to head contractors - Persons involved in the imposition of the bans - Dominant purpose for which conduct is engaged in -- Exercise of discretion - Mandatory order.

Practice and Procedure - Return of subpoenas - Objection to production of documents on ground of self-incrimination - Subpoena addressed to officer of body corporate - Availability of this ground in relation to incrimination of the body corporate - Possibility of prosecution of officer for criminal conspiracy - Whether offence of criminal conspiracy extends to agreements to perform acts not themselves criminal.

Trade Practices Act 1974, ss. 45D, 76, 78, 80.

Conciliation and Arbitration Act 1904, ss.4, 33, 119.

HEARING

SYDNEY

#DATE 13:3:1987

Counsel for the Applicants: Mr A B Shand QC with Mr D Cowdroy

Solicitors for the Applicants: Westgarth Baldick

Counsel for the First Respondent: Mr R Kenzie QC with Mr M Moore and Mr S Marshall

Counsel for the Second Respondent: No appearance

Solicitors for the Respondents: R L Whyburn & Associates

Counsel for the Applicants: Mr J L Trew QC with Mr B Oslington QC and Mr M F Holmes

Solicitors for the Applicants: Allen Allen and Hemsley

Counsel for the Respondents: Mr R Kenzie QC with Mr M Moore and Mr S Marshall

Solicitors for the Respondents: R L Whyburn & Associates

Counsel for the Applicant: Mr J L Trew QC with Mr B Oslington QC and Mr A Ashburner

Solicitors for the Applicant: Freehill, Hollingdale & Page

Counsel for the First, Third and Fourth Respondents: Mr R Kenzie QC with Mr M Moore and Mr S Marshall

Counsel for the Second Respondent: No appearance

Solicitors for the Respondents: R L Whyburn & Associates

Counsel for the Applicant: Mr J L Trew QC with Mr B Olsington QC and Mr A Ashburner

Solicitors for the Applicant: Freehill, Hollingdale & Page

Counsel for the Respondents: Mr R Kenzie QC with Mr M Moore and Mr S Marshall

Solicitors for the Respondent: R L Whyburn & Associates

Counsel for the Applicants: Mr J L Trew QC with Mr B Camilleri

Solicitors for the Applicants: Colin Biggers & Paisley

Counsel for the Respondents: Mr R Kenzie QC with Mr M Moore and Mr S Marshall

Solicitors for the Respondents: R L Whyburn & Associates

Counsel for the Applicant: Mr A B Shand QC with Mr D Cowdroy

Solicitors for the Applicant: Westgarth Baldick

Counsel for the Respondents: Mr R Kenzie QC with Mr M Moore and Mr S Marshall

Solicitors for the Respondents: R L Whyburn & Associates

ORDER

NSW G51 of 1987

Upon the applicants giving to the Court the usual undertaking as to damages THE COURT ORDERS THAT:

1. The first respondent, its servants and agents, and the second respondent be restrained, pending further order of the Court, from maintaining, giving effect to or enforcing any ban hitherto imposed on the provision of goods or services by Matthew Hall Pty Limited, Wormald International (Australia) Pty Limited or Nisbet & Durney (Contracting) Pty Limited to or for the building being constructed by the applicant known as Grosvenor Place, at corner George and Grosvenor Streets, Sydney.

2. The first respondent by itself, its servants and agents, and the second respondent be restrained from:

(a) aiding, abetting, counselling or procuring any person or persons to engage in the conduct referred to in order (1);

(b) inducing or attempting to induce a person or persons, whether by threat, promises or otherwise, to engage in the aforesaid conduct;

(c) being in any way, either directly or indirectly, knowingly concerned or party to an agreement to carry out the aforesaid conduct; or

(d) conspiring with any other person or persons to engage in the aforesaid conduct.

3. The first respondent cause to be delivered by 12.00 noon on Tuesday, 17 March, 1987 a letter addressed to each of the companies named in order (1) hereof informing each of those companies that the first respondent has now lifted, and will not in future seek to maintain, give effect to or enforce, any bans imposed before 13 March 1987 on the provision of goods or services by the addressee of that letter to or for the building referred to in order (1).

4. The costs of this application be the applicants' costs in the principal proceeding.

AND THE COURT DIRECTS THAT:

(I) Exhibits CC1, CC2 and CC3 be handed out to the solicitors for the applicants upon their undertaking to return the same to the Court if required.

(II) Exhibits CC4 and O be handed out to the solicitors for the respondents upon their undertaking to return the same to the Court if required.

(III) Exhibit D be returned to the Industrial Registrar of the Conciliation and Arbitration Commission.

(IV) The principal proceedings be listed for directions at 9.30 a.m. on Thursday, 26 March, 1987.

NSW No. G54 of 1987
Upon the applicant giving to the Court the usual undertaking as to damages THE COURT ORDERS THAT:

1. The first respondent, its servants and agents, and the second respondent be restrained, pending further order of the Court, from maintaining, giving effect to or enforcing any ban hitherto imposed on the provision of goods or services by Matthew Hall Mechanical and Electrical Engineering (Pty) Limited, J.M. Hargreaves & Son Pty limited or Bernard Hastie

(NSW) Pty Limited to or for the building being constructed by the applicant at 473 Victoria Avenue, Chatswood.

2. The first respondent by itself, its servants and agents, and the second respondent be restrained from:

(a) aiding, abetting, counselling or procuring any person or persons to engage in the conduct referred to in order (1);

(b) inducing or attempting to induce a person or persons, whether by threat, promises or otherwise, to engage in the aforesaid conduct;

(c) being in any way, either directly or indirectly, knowingly concerned or party to an agreement to carry out the aforesaid conduct; or

(d) conspiring with any other person or persons to engage in the aforesaid conduct.

3. The first respondent cause to be delivered by 12.00 noon on Tuesday, 17 March, 1987 a letter addressed to each of the companies named in order (1) hereof informing each of those companies that the first respondent has now lifted, and will not in future seek to maintain, give effect to or enforce, any bans imposed before 13 March 1987 on the provision of goods or services by the addressee of that letter to or for the building referred to in order (1).

4. The costs of this application be the applicants' costs in the principal proceeding.

AND THE COURT DIRECTS THAT:

(I) Exhibits S1 and S2 be handed out to the solicitors for the applicants upon their undertaking to return the same to the Court if required.

(II) The principal proceedings be listed for directions at 9.30 a.m. on Thursday, 26 March, 1987.

NSW No. G55 of 1987
Upon the applicant giving to the Court the usual undertaking as to damages THE COURT ORDERS THAT:

1. The first respondent, its servants and agents, and the second respondent the restrained, pending further order of the Court, from maintaining, giving effect to or enforcing any ban hitherto imposed on the provision of goods or services by Nisbet & Durney

(Contracting) Pty Limited, Impact Air Pty Limited or Fire Protection Pty Limited to or for the building being constructed by the applicant at 127 Walker Street, North Sydney.

2. The first repondent, its servants and agents, and the second respondent be restrained, pending further order of the Court, from maintaining, giving effect to or enforcing any ban hitherto imposed on the provision of goods or services by Crawford and Samuel Pty Limited, Impact Air Pty Limited or Tyao Pty Limited to or for the building being constructed by the applicant at 56-70 Phillip Street, Sydney.

3. The first respondent, its servants and agents, and the second respondent be restrained, pending further order of the Court, from maintaining, giving effect to or enforcing any ban hitherto imposed on the provision of goods or services by Matthew Hall Mechanical and Electrical Engineering (Pty) Limited, Wormald International (Australia) Pty Limited or J.M. Hargreaves & Sons Pty Limited to or for the building being constructed by the applicant at corner Barrack and York Streets, Sydney.

4. The first respondent, its servants and agents, and the second respondent be restrained, pending further order of the Court, from maintaining, giving effect to or enforcing any ban hitherto imposed on the provision of goods or services by Bruce & Sowter Pty Limited or O'Donnel Griffin (a division of ANI Corporation) to or for the building being constructed by the applicant known as Telecom Plaza at 314-322 Pitt Street, Sydney.

5. The first respondent by itself, its servants and agents, and the second respondent be restrained from:

(a) aiding, abetting, counselling or procuring any person or persons to engage in any of the conduct referred to in orders (1), (2), (3) or (4);

(b) inducing or attempting to induce a person or persons, whether by threat, promises or otherwise, to engage in any of the aforesaid conduct;

(c) being in any way, either directly or indirectly, knowingly concerned or party to an agreement to carry out any of the aforesaid conduct; or

(d) conspiring with any other person or persons to engage in any of the aforesaid conduct.

6. The first respondent cause to be delivered by 12.00 noon on Tuesday, 17 March, 1987 a letter addressed to each of the companies named in orders (1), (2), (3) and (4) hereof informing each of those companies that the first respondent has now lifted, and will not in future seek to maintain, give effect to or enforce, any bans imposed before 13 March 1987 on the provision of goods or services by the addressee of that letter to or for the building referred to in the relevant order.

7. The costs of this application be the applicant's costs in the principal proceeding.

AND THE COURT DIRECTS THAT:

(I) Exhibits L1, L2, L3, L4, L5, L6, L7, and L8 be handed out to the solicitors for the applicant upon their undertaking to return the same to the Court if required.

(II) The principal proceedings be listed for directions at 9.30 a.m. on Thursday, 26 March, 1987.

NSW G57 of 1987
Upon the applicant giving to the Court the usual undertaking as to damages THE COURT ORDERS THAT:

1. The first respondent, its servants and agents, and the second, third and fourth respondents and each of them be restrained, pending further order of the Court, from maintaining, giving effect to or enforcing any ban hitherto imposed on the provision of goods or services by Wormald International (Australia) Pty Limited, Brown & Moodie Pty Limited or Randwick Plumbing Pty Limited to or for the building being constructed by the applicant know as AMP Tower 2 at Bondi Junction.

2. The first repondent, its servants and agents, and the second, third and fourth respondents and each of them be restrained, pending further order of the Court, from maintaining, giving effect to or enforcing any ban hitherto imposed on the provision of goods or services by Environ Mechanical Services Pty Limited, Impact Air Pty Limited or Crawford and Samuel Pty Limited to or for the building being constructed by the applicant known as the Zenith building at Chatswood.

3. The first respondent, its servants and agents, and the second, third and fourth respondents and each of them be restrained, pending further order of the Court, from maintaining, giving effect to or enforcing any ban hitherto imposed on the provision of goods or services by Nisbet & Durney (Contracting) Pty Limited, Thos. Clark & Son Pty Limited or Guardian Fire Protection Company to or for the building being constructed by the applicant known as the OTC building at Elizabeth Street, Sydney.

4. The first respondent, its servants and agents, and the second third and fourth respondents and each of them be restrained, pending further order of the Court, from maintaining, giving effect to or enforcing any ban hitherto imposed on the provision of goods or services by John R Keith Pty Limited or Environ Mechanical Services Pty Limited to or for the building being constructed by the applicant known as the MBF building at Bathurst Street, Sydney.

5. The first respondent by itself, its servants and agents, and the second, third and fourth respondents and each of them be restrained from:

(a) aiding, abetting, counselling or procuring any person or persons to engage in any of the conduct referred to in orders (1), (2), (3) or (4);

(b) inducing or attempting to induce a person or persons, whether by threat, promises or otherwise, to engage in any of the aforesaid conduct;

(c) being in any way, either directly or indirectly, knowingly concerned or party to an agreement to carry out any of the aforesaid conduct; or

(d) conspiring with any other person or persons to engage in any of the aforesaid conduct.

6. The first respondent cause to be delivered by 12.00 noon on Tuesday, 17 March, 1987 a letter addressed to each of the companies named in orders (1), (2), (3) and (4) hereof informing each of those companies that the first respondent has now lifted, and will not in future seek to maintain, give effect to or enforce, any bans imposed before 13 March 1987 on the provision of goods or services by the addressee of that letter to or for the building referred to in the relevant order.

7. The costs of this application be the applicant's costs in the principal proceeding.

AND THE COURT DIRECTS THAT:

(I) Exhibits C1, C2, C3 and C4 be handed out to the solicitors for the applicant upon their undertaking to return the same to the Court if required.

(II) The principal proceedings be listed for directions at 9.30 a.m. on Thursday, 26 March, 1987.

NSW No. G58 of 1987
Upon the applicants giving to the Court the usual undertaking as to damages THE COURT ORDERS THAT:

1. The first respondent, its servants and agents, and the second respondent be restrained, pending further order of the Court, from maintaining, giving effect to or enforcing any ban hitherto imposed on the provision of goods or services by David J Morris Contracting Pty Limited, Matthew Hall Mechanical and Electrical Engineers Pty Limited or Nisbet & Durney Pty Limited to or for the building being constructed by the applicant at Victoria Cross, North Sydney.

2. The first respondent by itself, its servants and agents, and the second respondent be restrained from:

(a) aiding, abetting, counselling or procuring any person or persons to engage in the conduct referred to in order (1);

(b) inducing or attempting to induce a person or persons, whether by threat, promises or otherwise, to engage in the aforesaid conduct;

(c) being in any way, either directly or indirectly, knowingly concerned or party to an agreement to carry out the aforesaid conduct; or

(d) conspiring with any other person or persons to engage in the aforesaid conduct.

3. The first respondent cause to be delivered by 12.00 noon on Tuesday, 17 March, 1987 a letter addressed to each of the companies named in order (1) hereof informing each of those companies that the first respondent has now lifted, and will not in future seek to maintain, give effect to or enforce, any bans imposed before 13 March 1987 on the provision of goods or services by the addressee of that letter to or for the building referred to in order (1).

4. The costs of this application be the applicants' costs in the principal proceeding.

AND THE COURT DIRECTS THAT:

(I) Exhibits W1 be handed out to the solicitors for the applicants upon their undertaking to return the same to the Court if required.

(II) The principal proceedings be listed for directions at 9.30 a.m. on Thursday, 26 March, 1987.

NSW No. G59 of 1987
Upon the applicant giving to the Court the usual undertaking as to damages THE COURT ORDERS THAT:

1. The first respondent, its servants and agents, and the second respondent be restrained, pending further order of the Court, from maintaining, giving effect to or enforcing any ban hitherto imposed on the provision of goods or services by Wormald International (Australia) Pty Limited or Absolir Pty Limited to or for the building being constructed by the applicant at 130 Pitt Street, Sydney.

2. The first respondent by itself, its servants and agents, and the second respondent be restrained from:

(a) aiding, abetting, counselling or procuring any person or persons to engage in the conduct referred to in order (1);

(b) inducing or attempting to induce a person or persons, whether by threat, promises or otherwise, to engage in the aforesaid conduct;

(c) being in any way, either directly or indirectly, knowingly concerned or party to an agreement to carry out the aforesaid conduct; or

(d) conspiring with any other person or persons to engage in the aforesaid conduct.

3. The first respondent cause to be delivered by 12.00 noon on Tuesday, 17 March, 1987 a letter addressed to each of the companies named in order (1) hereof informing each of those companies that the first respondent has now lifted, and will not in future seek to maintain, give effect to or enforce, any bans imposed before 13 March 1987 on the provision of goods or services by the addressee of that letter to or for the building referred to in order (1).

4. The costs of this application be the applicants' costs in the principal proceeding.

AND THE COURT DIRECTS THAT:

(I) Exhibits J1, J2 and J3 be handed out to the solicitors for the applicants upon their undertaking to return the same to the Court if required.

(II) The principal proceedings be listed for directions at 9.30 a.m. on Thursday, 26 March, 1987.

NSW No. G60 of 1987
Upon the applicant giving to the Court the usual undertaking as to damages THE COURT ORDERS THAT:

1. The first respondent, its servants and agents, and the second respondent be restrained, pending further order of the Court, from maintaining, giving effect to or enforcing any ban hitherto imposed on the provision of goods or services by John R Keith Pty Limited or Tyao Pty Limited to or for the building being constructed by the applicant at 1 Pacific Highway, North Sydney.

2. The first respondent by itself, its servants and agents, and the second respondent be restrained from:

(a) aiding, abetting, counselling or procuring any person or persons to engage in the conduct referred to in order (1);

(b) inducing or attempting to induce a person or persons, whether by threat, promises or otherwise, to engage in the aforesaid conduct;

(c) being in any way, either directly or indirectly, knowingly concerned or party to an agreement to carry out the aforesaid conduct; or

(d) conspiring with any other person or persons to engage in the aforesaid conduct.

3. The first respondent cause to be delivered by 12.00 noon on Tuesday, 17 March, 1987 a letter addressed to each of the companies named in order (1) hereof informing each of those companies that the first respondent has now lifted, and will not in future seek to maintain, give effect to or enforce, any bans imposed before 13 March 1987 on the provision of goods or services by the addressee of that letter to or for the building referred to in order (1).

4. The costs of this application be the applicants' costs in the principal proceeding.

AND THE COURT DIRECTS THAT:

(I) Exhibits BB1, BB2 and BB3 be handed out to the solicitors for the applicants upon their undertaking to return the same to the Court if required.

(II) The principal proceedings be listed for directions at 9.30 a.m. on Thursday, 26 March, 1987.

NSW No. G64 of 1987
Upon the applicant giving to the Court the usual undertaking as to damages THE COURT ORDERS THAT:

1. The first respondent, its servants and agents, and the second respondent be restrained, pending further order of the Court, from maintaining, giving effect to or enforcing any ban hitherto imposed on the provision of goods or services by G.J. Melis Pty Limited, Wormald International (Australia) Pty Limited or Wildridge & Sinclair Pty Limited to or for the building being constructed by the applicant at 33 Railway Crescent, Burwood.

2. The first respondent by itself, its servants and agents, and the second respondent be restrained from:

(a) aiding, abetting, counselling or procuring any person or persons to engage in the conduct referred to in order (1);

(b) inducing or attempting to induce a person or persons, whether by threat, promises or otherwise, to engage in the aforesaid conduct;

(c) being in any way, either directly or indirectly, knowingly concerned or party to an agreement to carry out the aforesaid conduct; or

(d) conspiring with any other person or persons to engage in the aforesaid conduct.

3. The first respondent cause to be delivered by 12.00 noon on Tuesday, 17 March, 1987 a letter addressed to each of the companies named in order (1) hereof informing each of those companies that the first respondent has now lifted, and will not in future seek to maintain, give effect to or enforce, any bans imposed before 13 March 1987 on the provision of goods or services by the addressee of that letter to or for the building referred to in order (1).

4. The costs of this application be the applicants' costs in the principal proceeding.

AND THE COURT DIRECTS THAT:

(I) Exhibits JH1, JH2 and JH3 be handed out to the solicitors for the applicants upon their undertaking to return the same to the Court if required.

(II) The principal proceedings be listed for directions at 9.30 a.m. on Thursday, 26 March, 1987.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. See also Order 37 rule 2(3).

JUDGE1

Applications have been made for interlocutory injunctions in eight separate proceedings, involving a total of nine applicants. The eight applications have been heard together, all evidence being treated as admissible in respect of all applications to the extent of its relevance.

The parties

In each proceeding reliance is placed upon s.45D of the Trade Practices Act 1974, together with certain common law causes of action. Although each case must be examined separately there are features common to all. In one matter there are two applicants, Concrete Constructions Pty Limited and Concrete Constructions (NSW) Pty Limited. The former company is the holding company of the latter company, a trading company which carries on business as a building contractor. The holding company has been added as an applicant in an attempt to bring the case within sub-s.(1A) of s.45D; of which more later. Apart from this holding company, all of the applicants are building contractors presently engaged in the construction of multi-storey buildings within the metropolitan area of Sydney: Sabemo Pty Limited, Leighton Contractors Pty Limited, Civil & Civic Pty Limited, White Industries Limited, Jennings Construction Limited, Barclay Bros Pty Limited and John Holland Constructions Pty Limited. In each case the contractor has engaged sub-contractors to install specialised services -- such as domestic plumbing, air conditioning and fire protection systems -- the installation of which requires the labour of qualified plumbers. For simplicity I will use the term "plumbing sub-contractor" to include all of these sub-contractors. Plumbers, being members of the Plumbers and Gasfitters Employees' Union of Australia ("the PGEU"), have been engaged by each of the plumbing sub-contractors -- not by any of the applicant head contractors -- to carry out the work required by their respective sub-contracts.
The PGEU, the first respondent in each of these proceedings, is an organization of employees registered under the Conciliation and Arbitration Act 1904.
Institution of the PGEU campaign
On 19 June 1986 the Federal Executive of the PGEU adopted a report from the General Secretary of the organization proposing the preparation and service upon employers in the building construction industry of a log of claims. The evidence does not disclose when the log of claims was formulated but it was apparently in existence by 23 July 1986 when the Federal Executive resolved "to embark on a national campaign in the Building and Construction Industry for improvements to wages, conditions, hours and other terms of employment". In relation to the organization of the campaign the resolution included the following:

"3. That stop-work-meetings of all members be held in each State within three weeks to allow the members the opportunity to consider a report and endorse the Federal Executive recommendation.

4. That a 'Log of Claims' be presented to these stop-work-meetings for adoption by the rank-and-file membership of the Union.

5. That the campaign be organised on the principle of guerilla tactics. This means imposing maximum pressure on the employers with the minimum possible effects on the membership.

6. That the Federal Executive monitor the campaign in the Building and Construction Industry and the Federal President and General Secretary are authorised to call a Special Executive Meeting if considered necessary."

Stop work meetings of PGEU members were held on 7 August 1986 in Newcastle and Wollongong and on 8 August 1986 in Sydney. According to information supplied to Miss Inaam Tabbaa, Executive Officer - Industrial Relations of the Master Builders Association of New South Wales, similar meetings were held in other places in Australia at about the same time. With one exception, each meeting voted to support the Federal Executive resolution of 23 July.
In the light of the decisions taken at these meetings the Federal Executive decided to proceed with the campaign. At a meeting held on 18 August 1986 it resolved as follows:

"(a) The campaign be co-ordinated centrally and comrades Rutherford and Davis be authorised to maintain a central record of the bans imposed by the Union throughout the course of the dispute.

(b) That Head Office prepare material on developments in the campaign for distribution to both the PGEU membership, other Unions and the general community (ie: preparation of leaflets, posters, stickers etc).

(c) That special attention be given by the Branches to building trade union and broad community support for the policies and positions of the PGEU.

(d) That the General Secretary is authorised to initiate negotiations on the Union's log of claims with the M.P.A., M.B.A. or any other employer organisation considered relevant.

(e) That in the initial stages of the campaign negotiations be held with the major national developers in the building industry with a view to reaching agreement on the Union's log of claims as soon as possible; i.e. Herscu, Lend Lease, Westfields, Gandel Group, Multiplex.

(f) That all Branches be kept informed of developments in the campaign nationally to allow officials to advise the general membership on progress with the dispute.

(g) That in addition to serving the Log of Claims on national developers claims be made on the following national builders on a priority basis: - Lewis Constructions - Jennings

- Leightons

- Multiplex

- Civil & Civic

- Costains

- Sabemo

(h) That a list of national plumbing employers be prepared to allow the Union to serve them with the Log of Claims on a priority basis.

(i) That each State Branch is authorised to impose bans on developers. Builders and Plumbing Employers that operate in a particular State only, is (sic) support of the Unions (sic) 'Log of Claims' and the outcome of negotiations with these employers be reported to the Head Office co-ordinators."

Miss Tabbaa deposes that she has been informed by various members of the Master Builders Association of New South Wales and by members of three sub-contractors' associations, the Master Plumbers and Mechanical Contractors Association of New South Wales, the Fire Sprinklers & Pipe Fitters Association and the Airconditioning and Mechanical Contractors Association that, commencing on about 19 August 1986, the PGEU served copies of a log of claims upon members of those four associations. The log of claims dealt with four matters: wages, superannuation, working hours and award conditions. On 25 August 1986 Mr A H Mussert, Secretary of the Plumbing Employers Industrial Secretariat -- an association which represents the master plumbers of Victoria, New South Wales, Tasmania and South Australia and the Airconditioning and Mechanical Contractors Associations of those same four States -- wrote to Mr G R Crawford, General Secretary of the PGEU, rejecting the log of claims. Mr Mussert expressed the opinion that the claims were in breach of the Principles of Wage Indexation laid down by the Australian Conciliation and Arbitration Commission and that they were contrary to the Prices and Incomes Accord entered into between the Federal Government and the Australian Council of Trade Unions ("ACTU"). The letter went on:

"Naturally, should you be of the view that your claims are sustainable in the context of the Wage Indexation system, then we would expect you to present those claims to the Commission for its consideration.

...

In the circumstances we request that you discontinue those bans and limitations which you have imposed in support of your claims and, in the interests of the Industry and your members, withdraw the Log of Claims."

Upon various dates, commencing in the last week of August 1986, work bans were imposed at jobs being undertaken by the present applicants. The detail of the imposition of the bans assumes some importance in the submissions made to me and I will return to it. In particular, having regard to submissions made about the applicability to these cases of the defence provided by s.45D(3) of the Trade Practices Act, it will be necessary to examine the question whether any person other than the PGEU, its officers, and employees of the particular sub-contractor acted in concert in the imposition of bans upon work to be performed by that sub-contractor. For present purposes it is enough to refer to the general pattern of operations. The bans did not immediately halt the work on any project. They did not even halt the work of any plumbing sub-contractor on a particular project. In each case the bans were imposed only upon selected items of work. For the moment the sub-contractor was able to keep working, although perhaps with some difficulty, and it therefore continued to need the services of its plumber employees. But the bans were such that, as time went on, they must become more troublesome. The work which could be performed in advance of the banned items would be completed. Eventually the effect of the ban would be to bring to a standstill the operations of the sub-contractor. Moreover, the bans would increasingly affect the work of other trades on the project, preventing the completion of the building by the head contractor.
The proceedings in the Conciliation and Arbitration Commission
As might be expected, the imposition of bans led to proceedings in the Conciliation and Arbitration Commission. It is not necessary to set out all of the detail. But I should outline the history of those proceedings, for two reasons. Firstly, those proceedings throw some light upon the nature of the bans. Secondly, the relief sought by the present applicants is discretionary relief. Taking the view, as I do, that the bans have been imposed in support of genuine industrial claims -- whether or not they be justifiable -- it appears to me to be relevant to the exercise of that discretion to consider whether there is any prospect of the underlying dispute being resolved in the Commission.
On 2 September 1986 Ludeke J, on the application of the Fire Sprinkler Contractors' Association, directed the PGEU to lift all bans and limitations imposed in support of its log of claims. On the same day that Association applied to the Commission for the insertion in the Sprinkler Pipe Fitters' Award of a clause prohibiting the PGEU, its officers and members, being a party to, or concerned in, conduct that, amongst other things, hindered, prevented or discouraged the performance of work in accordance with the award. That application came before Ludeke J on 8 September 1986 when counsel for the applicant association tendered a schedule setting out bans, limitations and restrictions said to have been imposed by members of the PGEU. The schedule included three of the bans the subject of complaint in these proceedings. The accuracy of the schedule was not challenged. Indeed the industrial officer representing the PGEU said that he did not contend that the bans were not in effect. The application was granted.
On 22 September 1986 three applications, to vary in similar manner certain other awards, were made to the Commission on behalf of various employers. Those applications were heard and granted by Deputy President Riordan on 25 September 1986.
Three employer groups, the Master Builders Associations of New South Wales and of Victoria and the Fire Sprinkler Contractors' Association, made applications on 16 October 1986 for certificates under s.33(5) of the Conciliation and Arbitration Act. Section 33 applies to cases in which, by the terms of an award, conduct that would hinder, prevent or discourage -- among other things -- the performance of work in accordance with the award is prohibited. The section provides for an inquiry by a Presidential Member of the Commission into any complaint of breach of such a term. Section 33(7) empowers a Presidential Member, where the conduct is still continuing notwithstanding that the Presidential Member has taken all steps that appear to him to be appropriate for bringing about its early cessation, to make and file a record to that effect. The significance of that step is that thereafter proceedings for a penalty may be taken under s.119 of the Act.
The applications under s.33 were before Deputy President Riordan on a number of occasions. It was said on behalf of the applicants to those proceedings, without dispute by the representatives of the PGEU, that there were approximately 44 sites affected by bans on work falling within the Sprinkler Pipe Fitters Award, Australia-wide, and a total of 48 sites -- 22 in New South Wales -- affected by bans on work under plumbers' awards. At one stage, on 7 November 1986, the proceedings were adjourned to allow the Federal Executive of the PGEU, which was then meeting, to consider the position. Upon resumption, the union representative announced that the Executive "has resolved to continue its campaign". That announcement was in accordance with the minutes of the Federal Executive, which are in evidence. The minutes of the meeting of 7 November record that, having considered the outcome of the ACTU Special Unions Conference held the previous day and the dispute concerning the PGEU log of claims, the Executive resolved, inter alia, to:

"(a) Continue the National Campaign in support of general improvements to members wages and conditions.

(b) That bans imposed in support of the campaign be progressively extended, to apply on Federal and State Government projects."

Some of the employer associations decided to raise the stakes. On 10 December 1986 the Master Builders Association of New South Wales, the Master Plumbers' Association, the Mechanical Contractors Association of New South Wales, the Air Conditioning and Mechanical Contractors Association of New South Wales and the Fire Sprinklers Contractors Association of Australia wrote to the Secretary of the New South Wales branch stating that, as at that date, "our records indicate that your union has placed bans on the following projects:". There followed a list of 25 projects; including 12 out of the 14 projects which are the subject of the present application. The letter went on:

"These bans have been imposed for either of 2 reasons:

In support of your union's campaign for reduced working hours, overaward payments, etc.; In retaliation against the reduction in wages paid to PGEU members. We formally advise you that unless your union has produced evidence to us by 12.00 noon on Thursday, 11th December, 1986 that you have advised the Australian Conciliation & Arbitration Commission that all bans on all of the above projects have been lifted, employers on the above projects will exercise their rights under the suspension clause of the various Awards.

Any further projects affected since this list was compiled will be subject to the same conditions as outlined in this letter. Suspensions will remain in force until such time as your union has formally and unconditionally lifted all bans on all the above sites."

There is no evidence of any response to that letter.

A document was subsequently prepared, apparently by one or more of the employer associations which signed the letter of 10 December. The document was headed "Message to Members of the PGEU". The document read in part:

"At midday yesterday, Wednesday 10th December, 1986, your Union was put on notice that if it did not advise the Arbitration Commission by noon today that it had lifted all bans, Employers would implement the Suspension Without Pay clause in the Awards. Your Union has failed to meet our deadline. You will be instructed to carry out work in areas that you have banned and should you refuse to carry out such work, you will be immediately placed on suspension. Any members of the P.G.E.U who are suspended will not be able to resume work until all bans imposed in N.S.W. by your union, in this current campaign, are lifted.

If you work as directed you will not be suspended. We remind you, however, that once you are suspended for refusal to carry out normal work, it will not be your decision but that of the P.G.E.U. and the union membership as a whole, that will decide on your resumption due to the proviso that all bans must be lifted."

The evidence, details of which will be set out in due course, shows that most of the sub-contractors engaged by each of the present applicants handed a copy of this document to each of their plumber employees and, after giving to them a chance to read the document, instructed them to carry out work which they understood to be banned by the PGEU. Upon each of those employees refusing this instruction, each was suspended.
During the course of the proceedings before Deputy President Riordan announcements were made from time to time on behalf of PGEU members in various parts of Australia that all bans and limitations in those parts had been lifted. As I follow the record of proceedings in the Commission, by mid-December 1986 bans and limitations had been disclaimed in Queensland, Tasmania, South Australia and the Northern Territory. However, there was no disclaimer in relation to New South Wales -- other than in certain regional centres -- Victoria, Western Australia or the Australian Capital Territory.
On 17 December 1985 there was a further lengthy hearing during which the representative of the PGEU informed the Commission that recently -- apparently during the preceding few days -- there had been "two large meetings of job delegates, in excess of 200 job delegates at those meetings, who carried decisions unanimously to continue their campaign in accordance with the Federal Executive recommendation". At the conclusion of this hearing Deputy President Riordan announced that he would make and file a record under s.33(7). It is clear from his detailed reasons, delivered two days later, that the Deputy President took that step with reluctance and only because he felt that he had no alternative. I quote from those reasons:

"The continued existence of bans and limitations on work has not been denied at any stage of the proceedings. The PGEU has freely and quite openly conceded that it has imposed various bans and restrictions on the performance of work in support of its campaign for additional wages and a reduction in hours of work. Although it should be stated that it has not conceded the existence of particular bans.

These claims are clearly outside the current principles of wage fixation and are also inconsistent with the policy of the Australian Council of Trade Unions (ACTU). It is worth noting that the PGEU participated in the conference which arrived at the ACTU policy. The necessity for a form of centralised wage fixation with defined principles is accepted by all but a tiny minority of Australian trade unions and their members. The bans and limitations have been in place in varying degrees for several months. The employers have pressed their previous application for the making of a formal record of finding in respect of the conduct by the PGEU and its members and the issue of a certificate under Section 33 which were deferred on 10 November, 1986 ... so that every conceivable effort could be made by all interested persons to achieve a resolution. ...

All efforts have failed to achieve a cessation of the conduct in contravention of the relevant clauses in the respective awards. In addition to conceding that its campaign of industrial action persists, the PGEU has clearly indicated its intention to continue this campaign in the future. The PGEU has rejected all suggestions to have its dispute resolved either by this Commission in accordance with current principles or by the Australian Council of Trade Unions on an industry basis. The representatives of the PGEU in the proceedings of 17 December were unable to suggest any other appropriate step that I could take to bring about an early cessation of the various bans and limitations. The union's advocate did suggest that I should order the employers to confer with the union representatives with all bans and limitations in place but this would be quite inappropriate and most unlikely to achieve any positive result. There are no other steps apparent to me that might be taken to achieve such a cessation.

All efforts have failed to achieve a cessation of the bans and work limitations which are causing difficulties in the building and construction industry. These efforts have included various proceedings before this Commission, and private conferences arising from them, and a conference between the PGEU, the ACTU and the employers arranged by the Minister for Employment and Industrial Relations. All suggestions have been rejected by the PGEU.

As there are no grounds to believe that the present campaign will cease except by the employers conceding the claims which would be contrary to current principles of wage fixation, as well as the policy of the Australian trade union movement, there is no other course properly available to me other than to issue the certificate for which the employers have been applying for a considerable time.

In these circumstances I propose to make a record that the PGEU and its members are engaged in conduct in contravention of the relevant clauses in the respective awards and that I have taken all steps which are appropriate to achieve a cessation. The Industrial Registrar will be advised accordingly."

Deputy President Riordan persisted in the New Year with his attempts to resolve the matter. On 20 January 1987 he presided at a private conference of the affected parties when he presented to them a six point recommendation. The proposals were:

"1. Removal of all bans and limitations on the performance of work by P.G.E.U.

2. The lifting of all suspensions and stand downs and the reinstatement for members of P.G.E.U. of all rights, benefits and privileges affected.

3. The P.G.E.U. to submit all of its claims to the A.C.T.U. for processing as part of claims by all building unions pursuant to the projected new principles of wage fixation.

4. The P.G.E.U. members to receive forthwith:

(a) 2.3% wage adjustment

(b) the adjustment flowing from the current National Wage Case

(c) superannuation adjustment payment

(d) the restoration of paid rates award concept.

5. Employers to undertake not to pursue any prosecution and the P.G.E.U. not to reimpose bans for the time being.

6. This conference to stand adjourned for one month during which time the proposed conferences under the auspices of the A.C.T.U. to occur with report back to this Commission."

The PGEU Federal Executive considered that recommendation at a meeting held on 29 January 1987 but resolved to reject it. On the following day, 30 January, Deputy President Riordan presided over a private compulsory conference called by him and attended by all members of the Federal Executive and by representatives of all relevant employer groups. No agreement was reached at that conference. There are not at the present time any proceedings before the Commission which might be expected to resolve the dispute.
The bans affecting the applicants: Concrete Constructions
Concrete Constructions Pty Limited, the first applicant in matter G.51 of 1987, is the sole shareholder in Concrete Constructions (NSW) Pty Limited, the second applicant in that matter. The former company has subsidiaries in all States and Territories in Australia and it derives its income from their trading activities. At the present time building work is being undertaken by subsidiaries in New South Wales, Queensland, Victoria, Western Australia and the Australian Capital Territory. One of those projects is the construction by Concrete Constructions (NSW) on behalf of Grosvenor Place Pty Limited of a multi-level office building at the corner of George and Grosvenor Streets, Sydney. Concrete Constructions (NSW) has let three plumbing sub-contracts on this job: to Matthew Hall Pty Limited for airconditioning, to Wormald International (Australia) Pty Limited for fire protection services, and to Nisbet & Durney (Contracting) Pty Limited for the installation of domestic plumbing services. Work on the project commenced on 7 May 1984 and, at the present time, it is approximately 90% complete as to structure and approximately 50% complete as to services.
Mr Glen Batchelor, the second respondent in matter G.51 of 1987, is the Assistant Secretary of the New South Wales Branch of the PGEU. On 27 August 1986 he handed to Mr F G Ryerson, the Senior Project Manager of Concrete Constructions (NSW), a copy of the log of claims which had been adopted by the PGEU Federal Executive. At that time he told Mr Ryerson that "there has been a mass meeting on the site of the members. There is a copy of our log of claims and the bans are in place until we get it".
Upon that same day Mr Batchelor saw the site representatives of each of Matthew Hall and Wormald. He handed to each of them a copy of a sheet of paper upon which there were listed, under the name of each of the three sub-contractors, several items of work required to be completed by that sub-contractor. Mr Batchelor told each of the representatives that the document was "a list of black bans on the job" and that they had been imposed in support of the log of claims. Mr Batchelor also left a copy of this document at the site office of Nisbet & Durney.
It appears that, from 27 August to 11 December 1986, each of the plumbing sub-contractors continued on the job, doing work not included on the list. On 11 December the site representative of each plumbing contractor asked each of his company's plumber employees to work in the banned areas. Each employee refused. Each was then suspended. As a result the work included on the banned list remains undone, preventing each of the sub-contractors from completing its work. Mr Ryerson says that one effect of the bans has been to cause much work to be done out of sequence, resulting in additional expense. He claims that the project is now 43 days behind its critical path and that the stage has now been reached where all plumbing related work is essential to enable the completion of the building. Each day that the bans continue, he says, will result in the completion date of the building being extended by a day. The cost of extension of the job is $42,000 per working day.
There is also evidence, in the form of an affidavit sworn by Mr P W L White, a director of each of the applicant Concrete Construction companies, of the imposition of bans and work limitations upon two buildings being constructed in Melbourne by the Victorian subsidiary of Concrete Constructions, Lewis Construction Company Pty Limited. In one case the bans are said to have been in force since 27 August 1986, in the other since 9 February 1987. Each of the bans is said to have been imposed by the PGEU but no detail is given as to the method of imposition. In each case it is said that the bans are affecting the completion of their work by various plumbing sub-contractors.
Sabemo
Sabemo Pty Limited, the applicant in matter G.54 of 1987, is engaged in the construction of a building in Victoria Avenue, Chatswood. The company has retained three plumbing sub-contractors: Matthew Hall Mechanical and Electrical Engineering (Pty) Limited for fire protection systems, J M Hargreaves & Son Pty Limited for domestic plumbing and Bernard Hastie (NSW) Pty Limited for airconditioning and mechanical ventilation. Bernard Hastie has further sub-contracted the mechanical ventilation work to Brown & Moodie Pty Limited.
On 5 September 1986 Mr Roland Robson, a PGEU organizer who is the second respondent to the Sabemo Application, came to the site. In the presence of the PGEU site delegate he told Mr W L Dolman, the Sabemo site manager, "We're here to let you know we're placing bans on all hydraulic work on this project". Mr Robson then dictated a list of items, which Mr Dolman wrote down. They included items from all three sub-contracts. At the time Mr Robson informed Mr Dolman that other sites would also have bans.
On 8 October 1986 Mr Dolman was informed by the Hargreaves site foreman of further bans. Over the following few days he had telephone conversations with several people in the PGEU State office. The detail does not matter. It is apparent from the evidence of those conversations that the details of the banned work on this job were recorded at that office.
Although the direct evidence relates only to the Hargreaves employees, it appears that on or about 11 December 1986 each of the sub-contractors on this job instructed its employees to carry out banned work and, upon their refusing, suspended their employment. Since that date no plumbing work has been done. Mr Dolman has calculated that his company's losses due to the bans, to 13 February 1987, exceed $1,437,000. He says that losses since that date are running at over $100,000 per week.
Having regard to an issue raised in submissions as to the purpose of the bans -- in particular, the party at whom they were aimed -- it is desirable to note the terms of a conversation between Mr Dolman and Mr Robson on 5 January 1987. This was the first working day after the Christmas break. Mr Dolman rang to find out the position. During the conversation, Mr Robson said to him: "If your company doesn't make a contribution your job is fucked like the others. If you want to do something about it get Guido to give me a ring". Mr Guido Orsatti is the construction director of Sabemo.
Leighton
Leighton Contractors Pty Limited, the applicant in matter G.55 of 1987, has four jobs affected by bans: 127 Walker Street, North Sydney; 56-70 Phillip Street, Sydney; corner Barrack and York Streets, Sydney; and Telecom Plaza, 314-322 Pitt Street, Sydney.
At 127 Walker Street there are three plumbing sub-contractors: Nisbet & Durney, domestic plumbing, draining and fire hydrant services; Impact Air Pty Limited, mechanical services; and Crestani Fire Protection Pty Limited, fire sprinklers. On 15 September 1986 Mr Rick Welland, the PGEU site delegate, told Mr B G Greig, the general foreman for Leighton on this job, that "bans are being imposed on work at this site". He dictated a list of items to Mr Greig.
On that same day, Mr Welland spoke to the Nisbet & Durney project supervisor, Mr T R Beencke. He said to Mr Beencke: "We have just had a meeting on site called by the union organizer, Alex Somerville. There have been bans imposed on the site of which the builder has been notified". He gave Mr Beencke details of the bans, as they involved his company.
On 10 December Mr Welland again spoke to Mr Greig. He said that the bans on the site were being increased "because of the likelihood that the plumbers are going to be stood down for not removing their bans". He gave details of the affected items of work. Upon the following day Mr Beencke handed each of the plumbers employed by his company a copy of the employer groups' letter of 10 December and the "Message to Members of the PGEU". He asked them to do banned work. They refused and were suspended. As a result all domestic plumbing on the site was banned. The evidence of Mr W D J Stinson, the Leighton Project Manager on this job, is that the loss incurred by his company to 9 February 1987 as a result of the plumbing bans is $307,000 and that this loss is increasing at the rate of $36,000 per week.
The situation at 56-70 Phillip Street, Sydney is rather similar. On 3 September 1986 Mr Alex Somerville, who is the second respondent to the Leighton Application, came to the site. He spoke to Mr Terry Smith, the PGEU site delegate. Two days later Mr Somerville told Mr David Cochrane, the Leighton Project Manager on this job, that he had had "a meeting with the union members on site and the union is placing bans on the site in support of our log of claims". He gave details of bans affecting the work of all three plumbing sub-contractors on the job. During the next two months Mr Cochrane had conversations with both Mr Smith and Mr Somerville in attempts to procure the removal of the bans but to no avail. Mr Somerville insisted that the bans would not be lifted or moved. On 11 December 1986 Mr T A Crawford of Crawford and Samuel Pty Limited, the domestic plumbing contractor on the job, asked all of his company's employees to undertake banned work. They refused and were suspended. The evidence does not reveal whether the other plumbing sub-contractors took a similar course but Mr Cochrane says that all bans remained in place and that the loss thereby occasioned to Leighton, as at 9 February 1987, was $326,000 and rising at about $21,500 per week since then.

In the present case the underlying problem between the parties is the unresolved log of claims. Although the determination of those claims lies within the jurisdiction of the Commission, the PGEU has taken no steps to have the Commission rule upon them. The PGEU has preferred to use its industrial strength, and the high overhead costs associated with multi-level building construction, to achieve indirectly what it apparently thinks it cannot achieve in the Commission. Lacking the opportunity to deal with the central issue, the Commission has done what it can; but to no avail. There is no present prospect that the problem will be resolved elsewhere. What has occurred in the Commission, and the delay it has caused, provides no reason to withhold, on discretionary grounds, the relief to which the applicants are otherwise entitled.
The argument of futility starts with the observation that none of the PGEU members who decided to impose bans at particular sites is a party to any of the present applications. Consequently no order may be made to restrain any of those people from maintaining any ban. It follows, it is said, that orders against the present respondents would be futile. The bans would remain in force. Furthermore, it is said, most of the members have now been suspended. They have been told, in the "Message to Members of the PGEU" that, once suspended, they will not be re-instated until all bans imposed by the union have been lifted; so that, even if they so wished, they would be precluded in practical terms from carrying out the banned work.
There is some force in this argument. It is possible that, regardless of any order which might be made in these cases, individual members will continue to refuse to carry out the banned work, assuming that they are given the opportunity to do so. But I think that the argument attributes too little importance to the PGEU position. The evidence establishes that the various decisions on job sites stemmed directly from the activities of the union organizers. Some employees expressed reluctance to join in the bans but felt constrained by the union's position. It cannot be assumed that all the employees would maintain their attitude if they were made aware that the union no longer maintained the bans. Furthermore, it cannot be assumed that all sub-contractors would continue the suspension of their employees once the union retracted its position. The suspensions were undertaken -- in some cases extremely reluctantly -- in an endeavour to bring the bans to an early end. If the union withdrew the bans it would be in the interests of the sub-contractors to give to the employees the opportunity to reconsider their position.
The submission regarding futility does, however, point up one difficulty which has troubled me. Some s.45D cases arise out of positive actions hindering or preventing the supply of goods or services, for example, by the maintenance of a picket line denying access to a place. In such a case it is enough, in granting relief, to make an order in negative terms restraining the respondents from continuing to deny access. This is not such a case. Here the conduct complained of consists of decisions to do nothing, that is not to carry out specified work. An order restraining the present respondents from continuing to maintain that position may achieve nothing. A reversal of the present situation requires a positive decision to that effect. In the absence as parties of the members who took the decisions to impose bans no order may be made as to their conduct. However, it is open for the Court to make such orders against the present respondents or any of them, whether of a negative or a positive nature, as is appropriate to maximise the prospect that, pending final hearings, the conduct under s.45D(1) which is now complained of will not continue. It is true that positive orders, mandatory injunctions, are rarely made at an interlocutory stage. The reason, of course, is that the purpose of interlocutory orders is to maintain the parties' rights pending final hearing. That can usually be accomplished by restraining orders. But there are occasions upon which a mandatory order is necessary for that purpose.
In State of Queensland v. Australian Telecommunications Commission (1985) 59 ALJR 562 at p.563 Gibbs CJ referred with apparent approval to the following statement in Halsbury's Laws of England vol.24 para.948:

"A mandatory injunction can be granted on an interlocutory application as well as at the hearing, but, in the absence of special circumstances, it will not normally be granted. However, if the case is clear and one which the court thinks ought to be decided at once, or if the act done is a simple and summary one which can easily be remedied, or if the defendant attempts to steal a march on the plaintiff, such as where, on receipt of notice that an injunction is about to be applied for, the defendant hurries on the work in respect of which complaint is made so that when he receives notice of an interim injunction it is completed, a mandatory injunction will be granted on an interlocutory application."

The Chief Justice also referred to the statement of Megarry J in Shepherd Homes Ltd v. Sandham (1971) 1 Ch 340 at p.351 that "in a normal case the court must, inter alia, feel a high degree of assurance that at the trial it will appear that the injunction was rightly granted; and this is a higher standard than is required for a prohibiting injunction".
The case made by the present applicants is a strong one. I think it probable that they will each succeed at the trial. There is, in my mind, a "high degree of assurance". But, in any event, the mandatory order which I propose to make is intended to do no more than to make clear that the first respondent, the PGEU, is complying with the negative restraining orders which it would be usual to make.
I propose to make orders, in each case, restraining each of the respondents from maintaining, giving effect to or enforcing any ban hitherto imposed on the provision of goods or services by the particular sub-contractors -- to be specified in each order -- on particular sites. I am not prepared to make orders so wide as to include other sites, about which there has been no evidence, or no satisfactory evidence. Nor am I prepared to make orders which would preclude the imposition of a future ban. Section 45D does not prohibit all work bans; it is conceivable that there will be future conduct which does not contravene the section.
However, it is important that effect be given to the Court's orders. There ought not to be a situation of stalemate. For that reason I propose to order, in each case, that by 12.00 noon next Tuesday the union deliver to each specified sub-contractor a letter addressed to it informing it that it, the PGEU, has now lifted, and will not henceforth seek to maintain, give effect to or enforce any ban hitherto imposed on the provision of goods or services by that sub-contractor to the relevant head contractor. It will then be for the sub-contractor to decide what course to take -- whether or not to re-instate its suspended employees -- and for those employees -- if re-instated -- to decide their own attitude to the matter.
The costs of these applications should be costs of each of the applicants in their respective principal proceeding.

[1987] FCA 109

13 MARCH 1987