Epitoma Pty Ltd v Australasian Meat Industry Employees Union

[1984] FCA 202

Re: EPITOMA PTY. LIMITED
And: THE AUSTRALASIAN MEAT INDUSTRY EMPLOYEES' UNION; JACK O'TOOLE; DICK
ANNEAR; NELSON WILLIAMS
NSW G205 of 1984
Trade Practices
2 FCR 439 / (1984) ATPR para 40 - 469 / 54 ALR 713

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Gray J.(1)

CATCHWORDS

Trade Practices - boycott on overseas trade and trade within a Territory - interim injunction - existence of industrial dispute - defence that conduct related to conditions of employment - acting in concert - dominant purpose - balance of convenience - no injunction to restrain legitimate conduct - futility of injunction - no injunction to assist illegal conduct.

s.45D Trade Practices Act 1974

Beecham Group Ltd. v Bristol Laboratories Pty. Ltd. (1968) 118 C.L.R. 618

Burwood Cinema Ltd. v Australian Theatrical and Amusement Employees'

Association (1925) 35 C.L.R. 528

R v Lowery and King (No.2) (1972) V.R. 560

R v Matusevich and Thompson (1976) V.R. 470

R v Harding (1976) V.R. 129

R v Evans and Gardiner (No.1) (1976) V.R. 517

Barton v Armstrong (1976) A.C. 105

Wribass Pty. Ltd. v Swallow (1979) 38 F.L.R. 92

Tillmanns Butcheries Pty. Ltd. v Australasian Meat Industry Employees' Union (1979) 42 F.L.R. 331

Nauru Local Government Council v Australian Shipping Officers Association (1978) 34 F.L.R. 281

Trade Practices - Secondary boycott - Interim injunction - Existence of industrial dispute - Defence that conduct related to conditions of employment - Acting in concert - Dominant purpose - Balance of convenience - No injunction to restrain legitimate conduct - Futility of injunction - No injunction to assist illegal conduct - Trade Practices Act 1974 (Cth), s. 45D.

HEADNOTE

Held: (1) Conduct may be engaged in "in concert" notwithstanding that one of the parties engaging in it is acting under coercion or duress.

R. v. Lowery and King (No. 2) (1972) V.R. 560; R. v. Matusevich and Thompson (1976) V.R. 470; R. v. Harding (1976) V.R. 129; R. v. Evans and Gardiner (No. 1) (1976) V.R. 517, applied.

Barton v. Armstrong (1976) A.C. 105, referred to.

(2) To engage in conduct for the purpose of preventing the operation of an abattoir and thereby to require the applicant to accept an industrial award is to engage in conduct the dominant purpose of which is substantially related to the conditions of employment of employees and therefore conduct within s. 45D(3)(b) of the Trade Practices Act 1974 (Cth).

The legislature intended to exclude from the operation of s. 45D conduct engaged in "in pursuit of" improvements in terms and conditions of employment.

(3) If s. 45D(3) were not applicable because the applicant's employees had been terminated and ceased to be employees, the court's discretion would be exercised against the applicant where to grant relief would be to prevent the application of the "policy" of s. 45D(3)(b).

(4) On the balance of convenience, the economic loss to the applicant had to be weighed against the industrial objectives of the trade union.

(5) In any event, the grant of an injunction would have been futile, for the respondents could, subsequent to its grant, engage in the same conduct for the purpose stipulated by s. 45D(3).

(6) An injunction should also be refused because of the applicant's failure to register as a foreign company.

Nauru Local Government Council v. Australian Shipping Officers Association (1978) 34 F.L.R. 281 (dictum of Northrop J.) followed.

HEARING

Sydney, 1984, July 3, 6, 9, 16. #DATE 16:7:1984

APPLICATION.

Application for interlocutory relief.

I. Barker Q.C. and N. Hutley, for the applicant.

M. Tubbs, for the respondent.

Cur. adv. vult.

Solicitors for the applicant: Stephens Jaques Stone James.

Solicitors for the respondent: Morris May.

G.F.V.

ORDER

Application dismissed.

JUDGE1

The Application in this proceeding is dated 27th June 1984, and was filed with the court on 28th June. On 3rd July, the Applicant's Application for interlocutory relief came on for hearing before me. Mr. Barker Q.C., with Mr. Hutley, appeared for the Applicant. Mr. Tubbs of Counsel appeared for the First and Second Respondents. I was told that the Third and Fourth Respondents had not been served with any documents in the proceeding, but Mr. Barker indicated that relief was sought against them on an ex parte basis.

The relief sought in the Application is in the following terms:

"1. A declaration that in breach of section 45D(1A) of the Trade Practices Act, 1974 the first respondent in concert with the second, third and fourth respondents has engaged and is continuing to engage in conduct for the purpose, and having or likely to have the effect of preventing or substantially hindering the applicant from engaging in trade or commerce in the Northern Territory, and between Australia and places outside Australia.

2. A declaration that in breach of section 45D(1A) of the Trade Practices Act, 1974 the second, third and fourth respondents in concert with the first respondent and with each other have engaged in conduct for the purpose, and having or likely to have the effect or preventing or substantially hindering the applicant from engaging in trade or commerce in the Northern Territory, and between Australia and places outside Australia.

3. An order that the respondents and each of them be restrained by themselves their servants or agents from imposing giving effect to or enforcing any ban on the provision by any person of goods or services to the applicant at the Point Stuart Abattoir where any such ban has the purpose and would have or be likely to have the effect of preventing or substantially hindering the applicant from carrying out works of construction maintenance or repair of the Point Stuart Abattoir or from slaughtering stock, or from selling such slaughtered stock and by-products.

4. An order that the respondents and each of them by themselves their servants or agents be restrained from aiding, abetting, counselling or procuring a person to engage in the conduct set out in paragraph 3 above.

5. An order that the respondents and each of them by themselves their servants or agents be restrained from inducing, or attempting to induce, a person, whether by threats, promises or otherwise, to engage in the conduct set out in paragraph 3 above.

6. An order that the respondents and each of them by themselves their servants or agents be restrained from being in any way, directly or indirectly, knowingly concerned in or party to the conduct set out in paragraph 3 above.

7. An order that the respondents and each of them by themselves their servants or agents be restrained from conspiring with others to engage in conduct set out in paragraph 3 above.

8. An order for interlocutory relief in terms of paragraphs 3 to 7 above.

9. Damages.

10. Costs.

11. Such further or other relief as the Court deems just."

It may be seen that the claim is confined to allegations made of conduct prescribed by section 45D(1A) of the Trade Practices Act 1974.

The Applicant relied upon three affidavits of Peter Brian Benjamin, the managing director of the Applicant. The first of these affidavits was sworn on 25th June 1984, and the other two were sworn on 3rd July 1984. The Applicant also relied upon two affidavits of James Maclean, one sworn on 26th June 1984 and the other on 5th July 1984. The Applicant tendered several documents produced by certain of the Respondents on subpoena. Mr. Benjamin gave oral evidence and was cross-examined extensively by Mr. Tubbs on 3rd, 6th and 9th July 1984. In addition, the First and Second Respondents relied on two Affidavits of Robyn Bloch, both sworn on 9th July 1984.

It must be noted that, the evidence being in this state, any finding of fact which is expressed in these Reasons for Judgment is not in any way intended to be a final determination of the facts. Pursuant to section 80(2) of the Trade Practices Act 1974, the court has power to grant an interim injunction "where in the opinion of the court it is desirable to do so". The discretion thereby given is to be exercised in accordance with the principles established for dealing with applications for interlocutory statutory injunctions in Beecham Group Ltd. v Bristol Laboratories Pty. Ltd. (1968) 118 C.L.R. 618 at page 622. See World Series Cricket Pty. Ltd. v Parish (1977) 16 A.L.R. 181 at pages 185-7, 193-4 and 200, and Victorian Egg Marketing Board v Parkwood Eggs Pty. Ltd. (1978) 33 F.L.R. 294 at page 311 per Brennan J. These principles require that the court first consider whether the applicant has made out a prima facie case, in the sense that if the evidence remains as it is there is a probability that at the trial of the action the plaintiff will be held entitled to relief. If such a prima facie case is made out, the second enquiry is as to the balance of convenience. Accordingly, any findings of fact which I express are in no sense intended as a forecast as to the ultimate result of the case.

The Applicant is a company incorporated in New South Wales. On 10th May 1984, it entered into a contract for the purchase from the Northern Territory Development Land Corporation of a property known as the Point Stuart Abattoir. This is located east of Darwin in the Northern Territory. The total purchase price expressed in the contract is $1,250,000.00. Although settlement of the contract is overdue, it has been delayed because of a contention by the Applicant that the vendor is unable to provide vacant possession. Details of the occupancy of certain living quarters by former employees of the Applicant appear below.

The property concerned had previously been operated as an abattoir by another company, which had gone into receivership. The Applicant purchased the property with the intention of operating it as an abattoir for the slaughter of buffalo and cattle destined for export. Pursuant to the contract, the Applicant entered into possession of the property on 10th May 1984, for the purpose of carrying out works designed to upgrade it. Certain works, costing approximately $750,000.00 have been carried out since 10th May 1984, with a view to satisfying standards imposed by the Department of Primary Industry under the Export (Meats) Regulations of the Commonwealth of Australia, and by the European Economic Community for the import of meat into its member countries. These works are not yet completed. They have been carried out, at least in part, by employees of the Applicant who previously worked at the abattoir, and who are or were members of the First Respondent. The First Respondent is a trade union of employees in the meat industry. The employees concerned were engaged for the purpose of construction works, with a view to their subsequent engagement in the operation of the abattoir itself.

The Applicant has undertaken negotiations with respect to the supply of buffalo and cattle for slaughter at the abattoir, and with respect to the export and sale of the resulting meat. For the purposes of this Application, I treat it as established that the Applicant has committed itself to purchase between 28,000 and 30,000 head of stock from the Northern Australian Cattle Co. Pty. Ltd. for processing at the abattoir. I also treat it as established that the Applicant has received a commitment from Hans-Peter Klughardt, a director of H.P.K., a German concern, for the purchase of all or most of its output in 1984. Export to the European Economic Community is dependent upon inspection and approval of the abattoir by an E.E.C. representative. It was intended that this should take place on 25th June 1984, but, because of events which have occurred, that has not taken place. In addition, the Applicant had either an offer from or a contract with P. & S. Siegel Pty. Ltd., a Victorian company, for the purchase of 600 tonnes of buffalo meat to be exported to Taiwan. That offer or contract has disappeared, as a result of events which are set forth below.

The Applicant intended to commence production, in a limited way, on 11th June 1984, and to go into full production as soon as possible thereafter. Full production would have meant the slaughtering, processing and packing of between 250 and 300 beasts per day. Because of climatic conditions, it is possible only to operate the abattoir until the commencement of the wet season, which is expected in December.

Before the Applicant entered into possession of the abattoir, Mr. Benjamin spoke to a Mr. Finn, apparently a member of the First Respondent, who had been works delegate at the abattoir when it was operated by the previous company. He told Mr. Finn that the Applicant intended to operate under a contract system, and asked Mr. Finn to meet him at the Mindil Beach Casino and to bring figures for wages earned at the abattoir under the previous company. Mr. Finn did not supply these figures, but Mr. Benjamin obtained them from elsewhere. He used them to calculate rates for the proposed contract system.

The essence of the proposed contract system was that a company would be formed in which each of the Applicant's employees who were to operate the abattoir would hold shares. Those employees would cease to be employed by the Applicant, and become employed by the proposed company. The Applicant would pay to the proposed company monies calculated upon the number of beasts slaughtered on a particular day, at rates which varied between labourers, boners and slicers, and slaughtermen. The proposed company would then make payments to the employees. From the point of view of the employees, the advantage of this scheme was said to be that payments of remuneration to them could be spread over an entire year, instead of being paid in larger amounts during a limited season; it was considered that, although no reduction in overall liability for income tax would result, deduction of group tax would be decreased. From the point of view of the Applicant, certain costs of employing labour which it would otherwise have borne would be transferred to the contracting company.

On 21st May 1984, Mr. Benjamin met with Mr. Finn and two other employees of the Applicant. They discussed payment under the contract system. On the figures proposed by Mr. Benjamin, labourers would earn up to $105.00 per day, and slaughtermen up to $1,872.00 per week. It was proposed that the abattoir operate on a six day week for between 8 and 10 hours per day. Mr. Finn declared that he was not prepared to work for less than $2,500.00 per week, and would not negotiate on this. On the following day, Mr. Benjamin met the Applicant's employees at the abattoir. Mr. Finn again refused to work for less than $2,500.00 per week, and resigned. He urged other employees to do so. Mr. Finn's resignation was accepted.

In late May 1984, there was at least one other meeting between Mr. Benjamin and all or most of the employees at the abattoir. At all times, Mr. Benjamin made it clear to the employees that the Applicant would operate under a contract system, and that this was not a point about which he would negotiate.

At a meeting on 3rd June 1984, Mr. Benjamin produced a typewritten proposal for a contract system, containing figures from which rates could be calculated. This document was signed by a number of employees; others expressed their agreement with it.

In the meantime, the First Respondent was concerning itself with the question of award coverage in the meat industry in the Northern Territory. The evidence before me on this aspect of the matter is limited. It does appear that the First Respondent is pursuing, in the Australian Concilation and Arbitration Commission, settlement by award of an industrial dispute between it and a number of meat producers in the Northern Territory. The Applicant is not a party to that dispute. It is uncertain whether the steps necessary under section 49 of the Conciliation and Arbitration Act 1904 for the making of an award into a common rule throughout the Territory have been or will be carried out. The proceedings appear to have been delayed by attempts by the First Respondent to have disqualified from hearing the matter the member of the Commission charged with that responsibility.

On or about 25th May 1984, the Second Respondent, who is the Federal secretary of the First Respondent, sent a telegram to Mr. Benjamin. This telegram appears to proceed on the mistaken assumption that Mr. Benjamin was an officer of the company which had previously carried on the abattoir, and which is now in receivership. Its text is as follows:

"The A.M.I.E.U is concerned at your failure to respond positively to our attempts to introduce equitable conditions of employment at your meat processing establishment.

The A.M.I.E.U. is prepared to enter into an agreement to be registered with the arbitration commission to cover the particular requirements affecting your operation.

The union would appreciate your early response for an interim agreement to apply until such time as the proceedings before the Conciliation and Arbitration Commission are concluded."

On 29th May 1984, Mr. Benjamin sent to the Second Respondent a telegram in response to the above telegram. This read as follows:

"Dear Sir re your telegram 25/5/84 in response to your telegram I wish to advise. 1. On the contrary the agreement reached with union members is far more equitable than has previously existed and it has the consensus of approval stop 2. I am surprised and disturbed at the allegations made in your telegram stop could you please advise source and details of information which has been provided"

During the first week in June 1984, certain employees of the Applicant attended a meeting at the Bark Hut, a hotel between Darwin and Point Stuart. The meeting was also attended by the Fourth Respondent, the acting branch secretary of the Queensland branch of the First Respondent. That meeting voted in favour of the reinstatement of Mr. Finn as works delegate. Mr. Williams told the meeting that a black-ban had been put on the Applicant's abattoir, along with certain other abattoirs in the Northern Territory, and that the reason for the black-ban was the seeking by the union of a standard award. When the results of this meeting were reported to Mr. Benjamin, he declined to recognize Mr. Finn as works delegate. He telephoned the Second Respondent who invited him to Sydney to discuss the matter on Friday 15th June. The Second Respondent also suggested a meeting with other officials of the First Respondent in the Northern Territory. This meeting was to take place off the premises of the Applicant's abattoir, so that Mr. Finn could attend, as Mr. Benjamin had refused Mr. Finn access to the abbatoir. The Second Respondent stated that the Fourth Respondent had authority to negotiate on behalf of the First Respondent, and made it clear that what was sought was a standard award, with a tally system, based on the Queensland Meat Industry award. Mr. Benjamin complained about the calling of a ban when the abattoir was not even in production and when members of the First Respondent were being employed in construction work. He did say that he would be happy to attend the suggested meeting.

This meeting took place at the Mindil Beach Casino on 7th June 1984. The Third and Fourth Respondents were there, as well as Mr. Finn. Mr. Benjamin took with him six of the employees of the Applicant. The Fourth Respondent stated that he had authority to negotiate on behalf of the First Respondent. The terms he proposed were that the Applicant employ all of the previous employees of the abattoir, that it pay more money to those employees, and that it operate under an award, rather than a contract system. The Fourth Respondent pointed out that under an award system, based on productivity, if 300 beasts were slaughtered and processed per day, boners, slicers and slaughtermen should be paid $7,300.00 per week. Mr. Benjamin complained that this was unrealistic, and some of the employees expressed the view that the contract which the Applicant had offered was satisfactory to them. They invited the Fourth Respondent to attend the abattoir and talk with the employees. The Fourth Respondent replied that a decision had been taken by the Federal executive on behalf of the majority of members of the First Respondent. He proposed, as an alternative to payments in excess of $7,000.00 per week, an increase in the labour force. He made it clear that his calculations were purely on the number of beasts processed. He made it clear to Mr. Benjamin that the ban had been imposed because the First Respondent was seeking an award system. He threatened that all affiliated unions would be called in through the Trades and Labour Council to support the First Respondent's action. Some argument took place over the accuracy or otherwise of a press release. The Fourth Respondent then invited Mr. Benjamin to negotiate with the Second Respondent and again threatened co-operation by other unions in the ban. Mr. Benjamin protested that he was being given no choice but to accede to the demands made on the Applicant, and threatened to stand down employees. The Fourth Respondent again invited negotiation. Mr. Benjamin stated that he would make arrangements for the Applicant to become a member of the Meat and Allied Trades Federation, and that that body would negotiate for the Applicant. The Fourth Respondent did not wish to negotiate with that body. Mr. Benjamin also referred to the hearing before the Conciliation and Arbitration Commission and to his expectation that an award would be made to operate in the Northern Territory some time this year. The Fourth Respondent indicated that the First Respondent wished to negotiate an award with the Applicant immediately, regardless of the proceedings in the Conciliation and Arbitration Commission. The meeting broke up without a solution having been achieved.

On his return to the abattoir from that meeting, Mr. Benjamin attempted to telephone the Second Respondent in Sydney. Having failed to do so, on 8th June 1984, he sent a telex to the Second Respondent. This telex purported to contain an account of the meeting at the Mindil Beach Casino. At times, its language is abusive; it was certainly not conciliatory. Mr. Benjamin declined to have any further discussions with the Fourth Respondent. The telex also informed the Second Respondent, as was the fact, that Mr. Benjamin had stood down all employees at the abattoir until further notice. By this, Mr. Benjamin meant that he had declined to offer any work or pay to any of the employees.

Subsequently, Mr. Benjamin did speak to the Second Respondent by telephone, and repeated that he did not wish to have any further dealings with the Fourth Respondent. The Second Respondent suggested that Mr. Benjamin come to Sydney to have discussions with him. Mr Benjamin declined on the ground that he had a construction program on at the abattoir and was too busy. He invited the Second Respondent to come to the abattoir and discuss the situation with the employees. This invitation the Second Respondent also declined on the ground that he did not have the time.

Shortly thereafter, on a date which is not given, a meeting of employees at the abattoir took place. A report was given to the employees of the meeting with the Fourth Respondent at the Mindil Beach Casino. Certain employees told the meeting that they had been advised by the First Respondent that all members of the First Respondent were not allowed to work until negotiations had been completed; if they did work, their tickets would be in jeopardy and they would not get a job anywhere in Australia.

A couple of days after the meeting with the Fourth Respondent at the Mindil Beach Casino, Mr. Benjamin spoke to the Third Respondent, the acting Federal President of the First Respondent. The Third Respondent repeated that the First Respondent wanted an award based on the tally system in the Northern Territory immediately; he threatened that the industry would be closed down if this were not achieved. Mr. Benjamin complained about the figure of $7,000.00 per man per week. The Third Respondent agreed that the figure was high and suggested that the labour force be increased by 100 to 120 people. Mr. Benjamin asked where these persons would be housed, and the Third Respondent suggested the addition of any army hut or barracks. Mr. Benjamin complained about increases in production costs, saying that they were already the most expensive production costs in the world. The Third Respondent stated that the union required a fair day's pay for a fair day's work. Mr. Benjamin referred to the figure of $1,800.00 per week. The Third Respondent stated that the employees were having to work too hard for this figure and that more people should be brought in to bring the cost per head down. Some discussion took place over the willingness of persons to work in an isolated place for lesser sums. Mr. Benjamin again referred to the possibility of an award of the Conciliation and Arbitration Commission. The Third Respondent said some things which were critical of the Commission and the Meat and Allied Trades Federation. He finished by inviting Mr. Benjamin to Sydney to talk with Mr. O'Toole.

On 11th June 1984, Mr. Benjamin met the employees of the Applicant at the abattoir. He asked whether they were prepared to work. Some of the employees stated that they were prepared to work but were unable to do so because the First Respondent had directed them not to. Some complained of threats that they would not be able to work anywhere in Australia, and others complained of threats of violence to them if they were seen to have worked. Mr. Benjamin told the employees that they had 72 hours in which to make up their minds whether they would return to work or leave. At a further meeting with employees on 12th June, Mr. Benjamin repeated this ultimatum. One employee announced that he was going to work and handed around a copy of his resignation from membership of the First Respondent. The others repeated that they wished to work but felt themselves unable to do so. On 13th June, a final meeting was held, at which Mr. Benjamin gave the employees the final choice of resuming work or leaving. Some chose to resume work. Approximately 22 said that they would not be returning to work. Mr. Benjamin asked them to pack their belongings and make arrangements to leave the company property. It has not been possible to complete the construction works on the abattoir by the use of those who returned to work. Those who refused to work have not left, but continue to occupy living accommodation and to use ablutions facilities on the site. The Applicant has taken proceedings in the Supreme Court of the Northern Territory to evict these persons. Judgment in those proceedings was given on 3rd July 1984, and the persons concerned were given a period of six weeks from that date to vacate the premises.

Mr. Benjamin has received complaints, not only from employees of the Applicant, but also from an employee of a company which purchases hides. These complaints are to the effect that threats have been made that anyone who works will be black-banned at all abattoirs in Australia, and will be the subject of assaults.

Since the dismissal of the employees, further telex messages have passed between the Second Respondent and Mr. Benjamin. On 13th June, Mr. Benjamin advised that he was unable to keep an appointment to see the Second Respondent on 15th June 1984 "due to extensive commitments". On 14th June 1984, Mr. Benjamin invited the Second Respondent to come to Darwin "to discuss the matter with not only your own members but also the operators of the abattoirs concerned". On 15th June, the Second Respondent regretted cancellation of the conference fixed for that day, advised of his availability on 21st June, and suggested that Mr. Benjamin concentrate on settling the dispute as it affected the Point Stuart Abattoir. On 22nd June, the Second Respondent advised four further dates on which he would be available for negotiation. It appears that there was a further telephone conversation between Mr. Benjamin and the Second Respondent on 21st June 1984. This was followed by a lengthy telex from Mr. Benjamin rejecting a proposal to operate the Queensland Meat Industry award in the Northern Territory, renewing the invitation to the Second Respondent to visit Point Stuart to "see at first hand the nature of our industry in the Northern Territory and for discussions with the workforce", and stating that Mr. Benjamin would be prepared to go to Sydney for negotiations if the bans were lifted.

The Applicant complains that it is unable to complete the construction of the abattoir, to procure its inspection, and to operate it. It is thereby deprived of substantial revenue. As a consequence of the Respondents' ban, and an associated picket line, employees of Petromart Pty. Limited, a distributor of fuel, are refusing to deliver fuel to the Applicant at the abattoir. Save that the picket line is regarded as a picket line of the First Respondent, and that members of the Transport Workers Union employed by Petromart Pty. Limited are refusing to cross it, there is no evidence as to the precise identity of the persons constituting the picket line.

On these facts, a prima facie case is established that the Respondents, in concert, engaged in conduct for the purpose, and having or likely to have the effect, of preventing or substantially hindering the Applicant from engaging in trade or commerce between Australia and places outside Australia and within the Northern Territory. What is also clear from these facts is that there is in existence an industrial dispute of a very basic kind between the First Respondent and the Applicant. It was urged on me that I should not take this view, because of the expressed willingness of the Applicant's employees to work under a contract system, and their alleged difference with the First Respondent on this issue. Both in common parlance, however, and for the purposes of the Conciliation and Arbitration Act 1904, an industrial dispute can exist upon a demand made by a trade union, without the need for concurrence by employees, members of the union, in the demands made by the union on their behalf. It has been recognized since Burwood Cinema Ltd. v Australian Theatrical and Amusement Employees' Association (1925) 35 C.L.R. 528 that an organization of employees registered under the Conciliation and Arbitration Act 1904 acts as a party principal, and not as an agent for its members, in the creation of a dispute. Nor is it to the point that the employees of a particular employer might appear to be thoroughly satisfied with the terms and conditions of their employment. One of the fundamental purposes for which trade unions exist is to prevent individual employers making bargains with their own employees as to terms and conditions of employment, which may depart from standards laid down within an industry. In many cases, standards are hard won over a long period of time, and it is understandable that a trade union will be anxious to negotiate with an employer, notwithstanding that the employer may have made a bargain directly with its own employees.

On the one hand, Mr. Benjamin is critical of the Respondents for what he sees as their unreasonable insistence on excessively high remuneration for employees under an award system. It may be that an attempt simply to transfer to the Northern Territory, and to the particular circumstances of the Applicant's abattoir, the terms of the Queensland Meat Industry award would not be appropriate. On the other hand, criticism might be levelled at the Applicant for its failure to explore with its employees all of the implications of the proposed contract system. Reliance was placed upon advice given to the employees by a Mr. Fong, an accountant. This advice, in somewhat unprofessional language, concentrates upon questions related to income tax deductions, and plainly seeks to "sell" the contract system. It may be that no adequate explanation has been given to the employees of all the consequences which may flow from severing their employment relationship with the Applicant and creating a new one with a company which is to be a mere shell. Nor does it appear from the evidence before me that sufficient information has been made available as to the effect of the expenses of administration of the proposed employing company and the payment of remuneration by it, as well as questions of sickness and injury. At all events, it is not for me to attempt to decide the rights and wrongs of the parties to this industrial dispute. I am not equipped by evidence to do so, and the settlement of industrial disputes is not the function of this Court. One thing that does appear clear to me, however, is that the dispute is one which ought to be dealt with by the Australian Conciliation and Arbitration Commission, which is equipped with the expertise and the powers to perform the function of settling the dispute, either by conciliation or by arbitration. Both sides seem to have been reluctant to avail themselves of the facilities offered by the Australian Conciliation and Arbitration Commission. In this respect, criticism of both sides is justified.

It is also possible to be critical of the Applicant and the Respondents in other respects. The Respondents have resisted invitations to attend the abattoir and talk to the employees themselves, preferring to dictate to them from afar, although it does appear from the evidence before me that there have been frequent telephone conversations between officers of the First Respondent and employees at the abattoir. In looking at the conduct of the Applicant, it is necessary to remember that this is an application for interlocutory relief. On such an application, it would normally be rare to express findings as to the credit of a witness who is likely to be called to give evidence on the trial of the proceeding. Because Mr. Benjamin gave extensive evidence, and because I am asked to rely on his evidence in some crucial respects, I feel justified in making some comments as to his performance in the witness box. I have formed a view of Mr. Benjamin's credit which is adverse to him. In his affidavit sworn on 25th June 1984, filed in this proceeding, Mr. Benjamin swore "the abattoir is not yet operational and has been prevented from being so by the action of the A.M.I.E.U. . . ." on the same day, Mr. Benjamin swore another affidavit, which was to be filed in the Supreme Court of the Northern Territory, in proceedings in which the Applicant sought to evict its former employees, who continued to live in the quarters and to use the ablution facilities provided at the abattoir. In this Affidavit, Mr. Benjamin said that without accommodation on the land available for new workers, the Applicant could not employ workers and was effectively prevented from operating the abattoir. Notwithstanding the statement made in the last-mentioned affidavit, and his knowledge of the judgment given by the Supreme Court of the Northern Territory on 3rd July 1984, which allowed the former employees up to six weeks to vacate the living quarters, Mr. Benjamin was still prepared to swear in the witness box before me, on 6th July 1984, that the ban the subject of these proceedings was the sole reason why the abattoir could not be completed and could not operate. From this, and from other aspects of his evidence, I formed the view that Mr. Benjamin was prepared to swear to any proposition which he thought might advance the Applicant's case in some particular respect. Normally, in an Application of this kind, the court is obliged to accept the facts put forward by an Applicant at their highest, especially if they are not the subject of contradiction by other evidence. In this case, because of the views which I have formed of Mr. Benjamin's credit, where inconsistencies appear in his evidence, I am unwilling to accept in every instance the statements made which are most favourable to the Applicant's case.

If it can be said that the Respondents were reluctant to negotiate, the same can certainly be said of Mr. Benjamin, whose conduct, for this purpose, is that of the Applicant. On his own evidence, Mr. Benjamin told the Second Respondent that he (Mr. Benjamin) could not go to Sydney to negotiate as he had a construction program at the abattoir and was too busy. This was at a stage when, again on his own evidence, Mr. Benjamin had "stood down" the employees of the Applicant, who otherwise would have been engaged on the construction program. Subsequent invitations to go to Sydney and negotiate with the Respondents were also refused, at times when it must have been clear to Mr. Benjamin that the Applicant was in the position of difficulty which is the subject of this Application. It is also reasonable to infer that Mr. Benjamin's continued suggestions to the Respondents that they go to the abattoir and talk with the employees were motivated more by a desire to use the employees to persuade the union to call off its ban than by any real desire to negotiate an end to the dispute. Although the Applicant has attempted to present this case to the court as one in which the Respondents seek to disrupt and destroy an amicable relationship between the Applicant and its employees, Mr. Benjamin was prepared to cast aside those employees, even to the extent of saying that some of them would not be re-employed, when they failed to take the Applicant's part in its dispute with the First Respondent.

As I have already stated, a prima facie case is established against the Respondents of conduct of the kind proscribed by section 45D(1A) of the Trade Practices Act 1974. This finding, however, does not conclude the question whether the Applicant has made out a prima facie case that it is likely to succeed at the trial. It is necessary to look at sub-section (3) of section 45D, for the purpose of determining whether, at the trial, a defence under that sub-section is likely to succeed. In this case, the relevant paragraph of the sub-section is paragraph (b). I am satisfied that the First Respondent, which is an organization of employees for the purposes of the section, and the other Respondents, who are officers of the First Respondent, have engaged in the relevant conduct in concert with each other. For paragraph (b) to be applicable, it is also necessary that the Respondents engage in conduct in concert with an employee or employees of an employer. In this case, the relevant employer is the Applicant. It was urged upon me by Mr. Barker that I could not find that employees of the Applicant engaged in conduct in concert with the Respondents, because the employees were unwilling parties to the conduct. Reference was made to evidence of complaints by various employees of threats in respect of their future employment, and of threats of violence. Mr. Barker relied on dictionary definitions of "concert" to support the proposition that conduct in concert had to be conduct resulting from an agreement. He submitted that an agreement could not result where coercion or duress was present. I am prepared to accept that, before two persons can act in concert, there must be agreement between them. The concept of acting in concert is more familiar in the criminal law than in civil cases, and the necessity for an agreement is recognized in the criminal law. See R. v Lowery and King (No. 2) (1972) V.R. 560 at page 561 and R. v Matusevich and Thompson (1976) V.R. 470 at pages 477-8. As was said in the last-mentioned case, however, the question whether an agreement exists for this purpose is not to be answered by reference to the formal requirements of a binding contract. The Full Court of the Supreme Court of Victoria in that case held that it was possible for one person to act in concert with another, even if that other is insane. There are authorities in the criminal law in which it has been held that the existence of facts amounting to the defence of duress in the criminal law does not prevent a jury from reaching the verdict that the person subject to the duress acted in concert with another. See R. v Harding (1976) V.R. 129, and R. v Evans and Gardiner (No. 1) (1976) V.R. 517, especially at page 520, where Lush J. dealt with the distinction between a person who says "Being compelled, I agreed" and a person who says, "I did not agree". Even in the area of contracts, duress renders an agreement voidable at the option of the party who entered into it under duress, but does not render it void ab initio. See Barton v Armstrong (1976) A.C. 105, especially at pages 118-9. In that case, the Privy Council, by majority, tendered advice that a declaration should be made that the deeds in question were executed under duress and were void; the reasoning in the passage to which I have referred makes it clear that such a declaration was based upon election by the party subject to the duress to avoid the deeds.

It follows that, even if the Applicant's employees in the present case stopped work pursuant to the ban by reason of coercion or duress, they did so in concert with the Respondents. In any event, on the evidence before me, it is not possible to say that all the employees were subjected to duress. Accordingly, I am satisfied that sub-paragraphs (i) and (ii) of section 45D(3)(b) of the Trade Practices Act 1974 are applicable. It remains to determine whether the dominant purpose for which the conduct is engaged in is substantially related to one of the matters referred to in sub-paragraphs (iii) or (iv). In this respect, sub-paragraph (iii) is the relevant provision.

No suggestion has been put to me that the Respondents, in imposing the ban, were motivated by any other reason than the desire to prevent the Applicant from operating its abattoir under a contract system and to require it to accept an award with conditions for the employees which would satisfy the Respondents. In other words, it was not contended that the Respondents were acting capriciously. The submission was put to me that these considerations amounted to a general or ultimate purpose, and that the dominant purpose of the imposition of the ban by the Respondents was the shutting down of the Applicant's business. It was also suggested that the dominant purpose of the employees was to avoid the unpleasant consequences with which they had allegedly been threatened. The reasoning behind these submissions was that which found favour with Smithers J. in Wribass Pty. Ltd. v Swallow (1979) 38 F.L.R. 92 at pages 102-105. In that passage, His Honour distinguished between the motivation of the conduct and its dominant purpose. His Honour said at page 103:

"It appears to me that in the context of s. 45D the concept of the purpose for which the actual conduct was engaged in does not extend beyond the achievement of the goal which that conduct was capable of achieving. In relation to the conduct which prevented supplies of meat reaching the plaintiff that particular conduct could achieve nothing more than the cessation of Saturday morning trading in fresh meat by the plaintiff. That was the dominant purpose of the actual conduct. The wider and ultimate purpose of maintaining the work-free Saturday morning was the goal which it was hoped and intended would be promoted by achieving the purpose for which the actual conduct was engaged in."

With the greatest respect, I feel compelled to differ from the reasoning of Smithers J. in that case. The application of that reasoning would be such as to render sub-section (3) of section 45D nugatory in most, if not all cases. In any case falling within sub-section (1) or sub-section (1A) of section 45D, there must be a purpose of a kind described in those sub-sections. If this purpose, because of its proximate relationship to the conduct prescribed, is always to be regarded as the dominant purpose, there is no room for the operation of the defence set up by sub-section (3) (b). In my view, the legislature has intended to exclude from the operation of section 45D conduct which is genuinely engaged in in pursuit of improvements in the terms and conditions of employment. In a case such as this, where the employees engage in what amounts to a strike, at the instigation of their own union and its officers, who are pursuing specific concessions from the employer as to the terms and conditions of employment of the employees, the section is not intended to apply. The Parliament did not intend to create a provision which could be relied upon to support "anti-strike injunctions". The use of the words "substantially related to" supports this construction.

There seems to be little doubt that, at the trial of their proceeding, the Respondents will be able to establish that their avowed object in imposing the ban on the Applicant was to secure award conditions for the Applicant's employees. In my view, acting upon the construction of sub-section (3) (b) which I regard as the proper one, this was the dominant purpose of the conduct engaged in by the Respondents. Parties acting in concert may, of course, have different purposes. Even accepting that the employees may have had the purpose of avoiding unpleasant consequences to themselves, it will still be necessary for the court to determine at the hearing of the proceeding what was the dominant purpose of the conduct engaged in in concert. In my view, it is likely that the Respondents will be able to establish that their purpose was the dominant purpose.

Mr. Barker relied upon Ascot Cartage Contractors Pty. Ltd. v Transport Workers Union of Australia (1978) 32 F.L.R. 148 and Barneys Blu-crete Pty. Ltd. v Australian Workers' Union (1979) 43 F.L.R. 463 in support of his argument that no defence under sub-section (3) was available. It is sufficient for me to distinguish these cases by pointing out that neither of them involved industrial action by employees of the particular company against which the bans concerned were directed. In those circumstances, the application of sub-section (3) is much more difficult. Reliance was also placed upon a passage in the judgment of Bowen C.J. is Ausfield Pty. Ltd. v Leyland Motor Corporation of Australia Ltd. (No. 2) (1977) 14 A.L.R. 457 at page 460. That passage, together with a similar passage in the judgment of Deane J. in the same case at page 462, dealt with a question arising under section 51 (2) (a) of the Trade Practices Act 1974. That provision involves considerations which are significantly different from those applicable under section 45D.

Although it was not raised as an argument before me, it might be suggested that sub-section (3) (b) ceased to apply once the Applicant terminated the employment of each of its employees. It might be said that, after that time, the Respondents were no longer acting in concert with employees of the Applicant. It would be strange indeed if an applicant for relief under section 45D could improve its position in relation to such relief by terminating the contracts of employment of its employees. It may be that, if this argument has weight, the matter is better dealt with in the exercise of the Court's discretion. It seems to me that such discretion ought to be exercised against an applicant for relief if to grant relief would be to prevent the application of the policy expressed in sub-section (3) (b).

No case was put to me suggesting that the conduct of the Respondents involved their acting in concert with any person other than the employees of the Applicant. Accordingly, it is my view that the Respondents stand a good chance at the trial of the proceeding of making out a defence under sub-section (3) (b). The consequence of this is that the Applicant has failed to establish a prima facie case for relief.

Even if I am wrong in that conclusion, I should be disposed to refuse an interim injunction upon the balance of convenience. In a case such as this, a consideration of the balance of convenience is extremely difficult. It is necessary to weigh detriment to one party against detriment to other parties of a very different kind. In the present case, Mr. Barker submits that the Applicant suffers considerable economic loss by being unable to operate its abattoir. He submits that the Respondents would suffer no loss at all from the granting of an interim injunction. If economic loss alone is considered, this argument is undoubtedly correct. If there is to be taken into account the role of a trade union in seeking to maintain standards of industrial conditions for its members throughout Australia, the picture may be not so clear. In my view, it is legitimate to take into account the industrial objectives of a trade union in a case such as this. True it is, as Mr. Barker submits, that there have been many cases decided under section 45D the facts of which could properly be characterized as amounting to industrial disputes. In most of those cases, interlocutory injunctions have been granted. It may be that, in the circumstances of those particular cases, the economic loss to those claiming relief was seen as outweighing the pursuit of industrial objectives by those against whom relief was claimed. Each case, however, must be decided on its own facts, and I cannot discern from the cases any principle of law that industrial objectives are irrelevant.

In the present case, the fact which weighs strongest against the grant of an injunction is the element of futility that would attend such an order. This futility arises for two quite separate reasons.

Firstly, it is my view that an injunction could not be granted in this case unless it contained an exclusion with respect to conduct falling within sub-section (3). An injunction containing such an exemption was granted by the Full Court in Tillmanns Butcheries Pty. Ltd. v Australasian Meat Industry Employees' Union (1979) 42 F.L.R. 331. Mr. Barker drew my attention to Victorian Egg Marketing Board v Parkwood Eggs Pty. Ltd. (1978) 33 F.L.R. 294, and to D.G. Whelan Rentals Pty. Ltd. v Australian Building Construction Employees' and Builders Labourers' Federation (1983) 46 A.L.R. 339, as cases in which injunctions were granted pursuant to section 45D in absolute terms. On their facts, however, those were cases in which it was extremely unlikely that sub-section (3) could apply. In the present case, even if I am wrong in holding that sub-section (3) (b) does apply, the possibility of its application is a very real one. The grant of an injunction restraining the Respondents from continuing the ban would not end the dispute which exists between the Applicant and the First Respondent; it would do no more than remove one symptom of that dispute. In the future, the Respondents may see fit to engage, in concert with employees of the Applicant, in conduct of a kind contemplated by sub-section (3) (b), with the dominant purpose contemplated by that provision. In my view, it would be wrong to grant an injunction which had the effect of restraining the parties from engaging in conduct expressly made legitimate by the legislation.

The second area of futility arises from the evidence as to continued occupation by former employees of the Applicant of the living quarters at the abattoir, and continued use by those persons of ablution facilities. Having regard to the remoteness of the abattoir, it appears that the Applicant needs to be able to offer living quarters to prospective employees, in order to engage them to complete the construction of the abattoir and to operate it. This was the express basis upon which the Applicant approached the Supreme Court of the Northern Territory for relief against its former employees. In re-examination, Mr. Benjamin attempted to resile from this proposition to some extent. For the reasons which I have given above, I do not accept the evidence which Mr. Benjamin gave in re-examination, when it is placed alongside the evidence given to the Supreme Court of the Northern Territory. The effect of this is that it must, at least, be extremely doubtful whether the Applicant could recommence construction works or operate the abattoir until some time after 14th August 1984, that being the date by which the living quarters must be vacated pursuant to the order of the Supreme Court of the Northern Territory. In my view, that period constitutes ample time for the parties to engage in further negotiations, either with or without the facilities offered by the Australian Conciliation and Arbitration Commission, with a view to settling the dispute between them.

There is an additional reason, in my view, for declining to grant relief to the Applicant, in the exercise of my discretion. By virtue of section 346 of the Companies Act of the Northern Territory, the Applicant was required to register as a foreign company within one month after it established a place of business or commenced to carry on business within the Northern Territory. In my view, the Applicant established such a place of business or commenced to carry on business within the Northern Territory on 10th May 1984, when it went into possession of the abattoir pursuant to its contract to purchase the abattoir. By 2nd July 1984, all that the Applicant had done was to reserve its name for the period from 22nd June 1984 to 21st August 1984, pending lodgment of the documents for registration. Those documents had not been lodged. If I were to grant an injunction, it would have the effect of lending the aid of this court to conduct by the Applicant which would amount to a contravention of the Companies Act of the Northern Territory. An injunction should not be granted with such effect. Mr. Barker sought to distinguish the decision of Northrop J. in Nauru Local Government Council v Australian Shipping Officers Association (1978) 34 F.L.R. 281. In that case, His Honour held that a prima facie case for relief had not been made out. If it had been, His Honour would not have granted an interim injunction to a foreign corporation which had failed to register in Victoria as a foreign company and had maintained a misleading registration of a business name in that state. Mr. Barker sought to say that, in that case, the conduct of the plaintiff had been deliberate, whereas in this case Mr. Benjamin's evidence disclosed that instructions had been given to solicitors to pursue registration, which had simply not been effected yet. Whilst there are differences of fact, it is my view that the principle upon which Northrop J. acted is the correct one, namely that the court should not exercise its discretion to assist an applicant to conduct business illegally. Mr. Barker also sought to persuade me that the lack of registration as a foreign company had no connection with the matters the subject of these proceedings. Failure to register as a foreign company, however, is crucial to the whole operation of a company's business. Such registration provides a facility for the service of documents if legal action is to be taken by anyone in any court in the Northern Territory. It is wrong that the Applicant should be permitted to trade without having such registration. Finally, Mr. Barker submitted that an injunction moulded so as to operate from the date on which the Applicant becomes registered as a foreign company in the Northern Territory would be sufficient. If failure to register were the only fact going to my discretion, I might have been disposed to accede to that request. In the light of the more significant factors with which I have dealt with above, it is unnecessary to consider this submission.

In the result, I dismiss the Application for interlocutory relief. I will hear Counsel on the question of the costs of this Application, and on the question whether any further directions are neccessary for the conduct of the proceeding.