Magman International Pty Ltd v Westpac Banking Corporation

[1991] FCA 41

JUDGMENT No. t.! ...... / ....- ?L

JN THE FEDERAL COURT OF AUSTRALIA	) )
VICTORIA DISTRICT REGISTRY	) No VG 367 of 1990
)
GENERAL DIVISION	1

BETWEEN: MEAT AND ALLIED T w

FEDERATION OF AUSTRALU

(Applicant)

m:  AUSTRALASIAN MEAT INDUSTRY
EMPLOYEES' UNION

(Respondent)

Goram: Ryan J

Date: 20 February 1991

place: Melbourne

REASONS FOR JUDGMENT

The applicant has sought pursuant to liberty to apply reserved on 21 December 1990 and renewed on 14 January 1991 for orders restraining the respondent until 20 February 1991 (when a motion for interlocutory relief has been fixed for hearing), from imposing, giving effect to or enforcing any ban on the provision by any person of labour to any of Gilbertson Group Services Pty Ltd, R.J. Gilbertson Pty Ltd, and McPhee Export Meats Pty Ltd where any such ban has the purpose and would have or be likely to have the effect of contravening s.41D(lA) of the Trade Practices Act 1974.

conditions outlined in what has been called "Accord Mark VI" be
The evidence discloses that the respondent ("the AMIEU"),

an organisation of employees, has, since about the last quarter

of 1990, pursued a demand that a package of wages and working

extended to its members. In support of that claim there was a stoppage of work by members of the AMIEU in Victoria, Queensland and New South Wales on 19 October 1990 followed by further stoppages in the ensuing months. Some of those stoppages were isolated in the sense that they were confined to a particular establishment, whereas others such as those on 29 October 1990 and 16 and 19 November 1990 affected several establishments. On the last mentioned date there was a stoppage of work at about nine separate establishments.

The evidence as it stands permits an inference to be drawn that the stoppages were part of a "National Campaign" directed and implemented by officials of the AMIEU. For example, it has been deposed that on 5 October 1990, a M r Esplin, an organiser for the AMIEU, told employees of one abattoir that "a campaign will be run by the National Office". Similarly, it has been deposed that AMIEU delegates at Gilbertson Group Services advised management that they had received instructions from the

AMIEU Head Office to tell members that there would be a strike	on 26 and 29 October. In respect of the latter date, an AMIEU
delegate at Townsville is said to have advised that there would be a "national stoppage" of which details could be obtained from the AMIEU State Office.
On 31 October 1990 a ML- Hannan, the Federal Secretary of the AMIEU, appearing for the Union in the Australian Industrial Relations Commission, was recorded on transcript as saying "we did reconsider our situation and the Federal Executive of the Union did determine a course of action by carrying a resolution to the effect that the industrial action that was planned around the ACTU claim would be deferred". On 2 November 1990 a newsletter published by the Queensland Branch of the AMIEU recited that:

"As a result of the coordinated and determined industrial campaign which was supported by all members employed in the processing industry (except one small shed) the (applicant) and the employers are now in total disarray and the employers are making overtures to the union for peace."

In similar vein, Mr Curran, the Victorian State Secretary of the AMIEU, wrote a letter dated 14 November 1990 to other State Secretaries of the Union in which he said that he was "now even more convinced that the call for industrial action is essential".

On the next day, the evidence suggests the AMIEU plant president at Beenleigh advised management that a direction had been received from the Federal Secretary of the AMIEU which members had voted to follow and that there would be a 48 hour

stoppage on 16 and 19 November 1990.

On 29 November 1990, a newsletter emanating from the Victorian Branch of the AMIEU reported "some success in this (ACTU) campaign".

In December 1990, a newsletter issued by the Federal Council of the AMIEU contained the following statements:

"Federal Council calls on the Federal Executive to inform the Inquiry that the Union will be calling on the membership to take industrial action to secure their just entitlements and need for industrial action. Federal Council calls on the membership to conduct their dispute in a manner where they can exert the greatest pressure on employers over a period of time and they must not be intimidated by threats of legal action. We must seek to agitate within the policy and claims of the ACTU.

Federal Council warns members not to act in a manner which will attract legal action to be used successfully against us.

By adopting the ACTU claim, the Federal Executive recognised the need for industrial actlon. At the request of Deputy President Riordan, they delayed a national stoppage to allow negotiations to take place between the Union and MATFA.

The week after 17th October, members in Queensland and Victoria took industrial action in support of the ACTU claims.

Following the industrial actlon, MATFA scurried to the Industrial Relations Commission and Riordan arranged a hearing and discussions were held between the parties. The Federal ~xeiutive

agreed not to take any industrial action supporting the ACTU
claim so discussions could continue.''

No attempt has been made so far to adduce evidence on behalf of the AMIEU to rebut the inference which I have been invited to draw that the stoppages to which I have referred were part of a national campaign directed and implemented by officers of the AMIEU.

The first of the recent events which have prompted the present application for interlocutory relief was that members of the AMIEU employed by R.J. Gilbertson Pty Ltd at North Altona, after a stopwork meeting on 31 January 1991, resolved to cease work on that day and not return until the first shift on Tuesday, 5 February 1991. That action was said to have been prompted by the company's refusal to increase wages in line with the ACTU claim. There is heresay evidence to the effect that:

"Members of the AMIEU employed by R.J. Gilbertson Pty Ltd and Gilbertson Group Services Pty Ltd are exasperated by the refusal of these employers to enter into negotiations for the payment of the claim made upon the employers known as the 'ACTU Accord Mk V 1 Claim' and to negotiate an Agreement pursuant to 8.115 of the Act. "

Secondly, members of the AMIEU employed by Gilbertson Group Services Pty Ltd at Brooklyn resolved, also at a meeting on 31 January 1991, to go on strike for 48 hours being Friday, 1 February and Monday, 4 February 1991, and to resume work on 5 February. There is no direct evidence as to what prompted that action but shortly after it was decided upon, Mr Hartshorne, the AMIEU Works Delegate, told Mr Smith, the Works Manager, that "the Delegates had concerns in regards to problems employees were having with Work Care certificates" and that "the AMIEU members sought to know the position of Gilbertson Group Services with respect to the ACTU Accord Mk VI." As well as that already referred to, there is hearsay evidence that "members of the AMIEU employed at Gilbertson Group Services Pty Ltd were exasperated that their employer was not making WorkCare payments to injured workers because of technical deficiencies in medical

certificates".

Thirdly, after a meeting of the AMIEU Shop Committee at McPhee Export Meats Pty Ltd ("McPheeN) on 31 January 1990, the Works Manager of that company, Mr Bailey, was told that there would be no work from midnight on Thursday, 31 January to midnight on Friday, 1 February, and from midnight on Sunday, 3 February to midnight on Monday, 4 February. Mr Bailey was told that the reason for the stoppage was that McPhee was in arrears

in making payments of contributions to the Meat Industry Employees Superannuation Fund. Although Mr Bailey, later on 31 January, told the AMIEU delegate, Mr Deuis, that the arrears would be paid that day, Mr Deuis replied that "the decision (to strike) has already been taken". There is hearsay evidence similar to that already recounted that AMIEU "members employed at McPhee Export Meats Pty Ltd as at 31st January 1991 were exasperated that their employer was two months in arrears in paying its contributions and its employees contributions to the Meat Industry Employees Superannuation Fund".

The action in which the interlocutory relief is sought arises under s.45D(lA) of the Trade Practices Act which provides :

"Subject to this section, a person shall not, in concert with another person, engage in conduct for the purpose, and having or likely to have the effect, of preventing or substantially hindering a third person (not being an employer of the first- mentioned person) from engaging in trade or commerce-

(a) between Australia and places outside Australia;

(b) among the States; or

(C) within a Territory, between a State and a Territory or

between two Territories."

It is said that the effect of the whole of the evidence, to

part of which I have referred, is to raise a serious question to

be tried as to whether the AMIEU in concert with certain of its

officers and members has engaged in conduct for the purpose, and having the effect, of hindering various export meet processing companies from engaging in trade and commerce with overseas countries. It is sufficient for present purposes to indicate that I am satisfied that the evidence in its present state and the inferences available from it raise a question of that nature. It would be inappropriate for me, in the circumstances of the present application, to detail the strengths and weaknesses of that evidence, or to indicate whether I would myself draw the inference for which the applicant contends.

However, it is urged by Mr Bromberg of Counsel for the AMIEU that the ultimate question which arises for resolution on this application is not seriously arguable because there is manifestly available to the AMIEU the defence afforded by s.45D(3) of the Trade Practices Act. That sub-section provides:

"(3) A person shall not be taken to contravene, or to be

involved in a contravention of, sub-section (1) or (1A) by
engaging in conduct where-

(a) the dominant purpose for which the conduct is engaged in is substantially related to-

(i)  the remuneration, conditions of employment, hours of work or working conditions of that person or of another person employed by an employer of that person; or

(ii) an employer of that person having terminated, or	taken action to terminate, the employment of
that person or of another person employed by that employer; or

(b) in the case of conduct engaged in by the following persons in concert with each other (and not in concert with any other person), that is to say-

(i)  an organization or organizations of employees, or an officer or officers of such an organization, or both such an organization or organizations and such an officer or officers; and

(ii)  an employee, or 2 or more employees who are employed by the one employer,

the dominant purpose for which the conduct is engaged in
is substantially related to-

(iii) the remuneration, conditions of employment, hours of work or working conditions of the employee, or of any of the employees, referred to in sub-paragraph (ii); or

(iv)  the employer of the employee, or of the employees, referred to in sub-paragraph (ii) having terminated, or taken action to terminate, the employment of any of his employee^.^

It seems clear from the evidence, as I understand it, that the dominant purpose for which the employees at the various meat processing plants took part in stoppages of work was substantially related to their own remuneration and conditions of employment. Prima facie, therefore, those employees attract the defence afforded by ~.45D(3)(a)(i) notwithstanding that they have engaged in the relevant conduct in concert with the AMIEU and some of its officers, as well as with each other. However, an organization, like the AMIEU, has to bring itself within paragraph (b) of s.45D(3). Assuming for the purposes of the argument that the conduct in which the AMIEU engaged was in concert with one or more of its officers and with the employees of a particular meat processing company, the dominant purpose for which the AMIEU and its officers engaged in the conduct must

conditions of employment of one or more employees of that same	have been substantially related to the remuneration or
company.
The operation of s.45D(3)(b) in circumstances somewhat similar to the present was considered by Wilcox J in Concrete constructions Ptv Ltd v Plumbers and Gasfitters Em~lovees' Union (1987) 15 FCR 31. His Honour observed, at 57:

"However, it is said that, upon the evidence, the defence under aubs(3) is lost because the parties to the relevant concert included in each case persons other than the employees of the particular subcontractor upon whose activities bans were imposed. This argument is put at two levels. F~rst, it is said that the relevant conduct has to be regarded as the whole of the activity which culminated in the imposition of particular bans, that is as including the various decisions of the federal executive of the PGEU, the decisions taken at the stop work meetings of members held in early August 1986 and the decisions of the 200 job delegates in early December 1986. Even if the decisions of the executive be treated as conduct of the organisation itself, it is said that the decisions made at mass meetings of other persons, even if all were PGEU members, cannot be regarded as conduct of the organisation. And, of course, participation in those meetings extended well beyond those employed by the relevant particular subcontractors."

His Honour then considered the second level of the argument which is not available on the facts of the present case, and expressed the view that "there is a distinct prospect that the 'first level' case will succeed". He then proceeded to discuss the defence afforded by s.45D(3) saying, at 58:

"In relation to the second issue under 845D(3) the respondents are, in my opinion, upon firmer ground. The defence under par (b) of that subsection requires that 'the dominant purpose' of the conduct be 'substantially related to' the remuneration, conditions of employment, hours of work or working conditions of employees of a particular employer. I aoorehend that conduct subetantiallv related to the remuneration. etc of emolovees of 4 ~prticular emulover does not lose its character as such merely because similar claims are concurrentlv beina made, and oressed bv similar conduct. aaainst other emolovers," (emphasrs added)

That passage was considered in a context almost identical to the present by Pincus J in peat and Allied Trades Federation of Australia (Old Division) union of EmDloverS v Australasian pleat Industrv Union of Em~lovees (Oueensland Branch1 (1989) 90

ALR 175. His Honour there adverted to the application of

s.45D(3)(b) and said, at 179:

"The applicants' case is that in consecruence of the Pull Bench decision to which I have referred, the respondents brought about mtoppages in a number of abattoirs in each of Queensland and south Australia. The employees involved in such itoppages were employed by a number of employers and therefore, on the face of it, para (b)(ii), quoted above, makee the 'legitimate industrial action' defence inapplicable here."

Pincus J then quoted the words to which I have added

emphasis from the judgment of Wilcox J in the Concrete

~onstructions Case and continued, at 180:

"Applying that view to the present case would achieve the result that there was separate conduct by the respondents in respect of each abattoir in concert with employees at that abattoir. That analysis does not fit the facts alleged well; the inference the applicants desire to have drawn from the evidence is that the respondents determined upon and brought about contemporaneous stoppages at a number of abattoirs and if they did so, it is hard to see how one could avoid the conclusion that they acted in concert with employees at all the various abattoirs involved in such stoppages."

His Honour had earlier acknowledged, at 178, that on the construction which he adopted at s.45D(lA) and (3):

"the relevant provision makes much ordinary industrial action, such as strikes arranged or coordinated by union, ~ r i m a facie unlawful as long as it-involves preventing dr hinderiG export or interstate trade or comnerce. The only exception to that proponition which appears likely to b6 of iignificance in practice is that, on the applicants' argument, the industrial action may be protected if it is confined to employees of one employer. It ia not the case that the statute saves from its operation industrial pressure which is not 'directed to overturning the decision of a properly constituted industrial tribunal' or otherwise of a kind which this court might regard as a pursuit of a 'legitimate industrial objective', to use the applicants' language."

Accordingly, his Honour concluded, at 183 that:

question to be tried as to whether some of the respondents took	"as to all the abattoirs, there is evidence raising a eerioue
steps to arrange for or encourage stoppage8 deposed to in the material."

To negate the existence of a serious question to be tried by invoking s.45D(3) in the present case, the AMIEU has to make good one of two propositions. The first is that the construction favoured by Pincus J in the MATFA (Old) Case was not even arguably correct. It is inappropriate for me to essay my own construction of s.45D(lA) and s.45D(3)(b) but I cannot conclude that no serious argument can be advanced in support of the construction which was outlined in the MATFA (Oldl Case.

Alternatively, I am required to be persuaded beyond any serious argument that, to paraphrase Wilcox J in the Concrete constructions Case at 58, the dominant purpose of the AMIEU's participation in the industrial action which has occurred was substantially related to the remuneration or working conditions of the employees of the particular establishment at which it occurred, and that similar action at each other establishment was merely concurrent and had dominant purpose which was likewise substantially related to the interests of employees at that other establishment. In the light of the evidence in its present state, I consider that there is a serious question to be tried as to whether the AMIEU's involvement in the relevant stoppages was coincidentally concurrent, or, as the applicant contends, was part of a national campaign to achieve an improvement in wages or conditions of employment for employees

not being employed by the one employer.

It was urged by Mr Bromberg for the AMIEU that, in assessing the balance of convenience, regard should be had to the likelihood of a successful defence being mounted under s.45D(3). However, on the present state of the evidence, that turns, as I have indicated, on whether the construction of the relevant provisions which was favoured by Pincus J in the MATFA a d \ Case should be applied. Since I have expressly declined to evaluate the strengths and weaknesses of that argument at this

stage of the proceedings, it follows that no such evaluation
should intrude on the balancing of convenience.

I was referred by Counsel for the AMIEU to the recent decision of Von Doussa J in F.T.S. Freiaht Manaaement Ptv Ltd v TransDort Workers Union of Australia (unreported, 3 April 1990) in which his Honour discussed the application of s.45D(2) of the Trade Practices Act and concluded, at 29:

"It is unrealistic to suggest that the dominant purpose for which the conduct was engaged in was not substantially related to the topics of remuneration, conditions of employment, and the alleged termination of the drivers' employment.

I accept for the purposes of the present argument that the dominant purpose of the AMIEU in engaging all of the conduct which on the evidence can be imputed to it, was related to the remuneration and conditions of employment of its members employed in export meat processing establishments. However, as I

understand the construction adopted by Pincus J in the m

@1dl Case, the defence afforded by sub-S. (3) is only available

where the dominant purpose of conduct is confined to the	remuneration or conditions of employment of employees of a
single employer against whom the conduct is directed. Accordingly, as I have already indicated, on the facts as they presently stand revealed, the defence may be available of the AMIEU being employees of the one employer, but not to the AMIEU itself. However, the relief sought by the applicant is confined to the AMIEU itself.
Another consideration urged against the exercise of the Court's discretion adversely to the present application, is that the application has been brought by an organisation of employers, and not by the individual employers who would directly benefit from injunctive relief. However, I do not regard that consideration either alone or in conjunction with other factors as inducing refusal of relief which the existence of an arguable case and the balance of convenience would otherwise make appropriate. It was apparently not a factor which weighed with Pincus J in the MATFA (Old) Case (FuDra).
Nor am I disposed to refuse interlocutory relief, even partly, for the reason that various employers members of the applicant have been prosecuting proceedings, to some extent in parallel with the present, in the Australian Industrial Relations Commission in the course of which the Commission has been persuaded to insert a "bans clause" in the relevant award. It is true, as Mr Bromberg pointed out, that only fleeting
relied on by the applicant in the present case. However, as I reference to those proceedings has been made in the affidavits
understand it, those proceedings have been concluded subject to an appeal. Accordingly, on the assumption that the techniques of conciliation and arbitration available under the Industrial pelations Act have been exhausted, I consider that the following observations of Lockhart J in Jndustrial Enter~riSeS Ptv Ltd v
Federated Storemen & Packers Union of Australia (1979) ATPR 40-
100 at 17,996 apply a fortiori to the present case:

"These are but acme of the matters which must lead to the rejection of the contention of the respondents. But there are more substantial reasons than these, one being that the Act specifically prohibits conduct such as that mentioned in sec. 45D and provides its own remedies for dealing with it, including the power to grant injunctions under sec.80.

This is not to say that there may not be circumstances where it would be proper for this Court, in the exercise of its discretion, to await the result of proceedings under the Conciliation and Arbitration Act 1904 before embarking on the hearing of proceedings under the Act; but it is a fundamental misconception of the Act to assume that merely because there is a dispute to be heard by the Conciliation and Arbitration Commission which may (and for that matter, may not) involve substantially the same facts, this Court would not exercise its powers under the Act.

In the present case, not to hear the application for interlocutory injunctions or, having heard it, not to grant relief merely because a dispute is soon to be heard by another tribunal under another Act of Parliament, which may involve substantially the same facts, would be a serious failure by this Court to exercise its jurisdiction and would cause grave injustice to the applicants.

It has been said more than once that special considerations arise under the Act and that the Court will not necessarily apply all of the principles which are applied by a Court of equity concerned essentially with competing private rights and duties. In proceedings under the Act the public interest may be invol~ed.~

It was suggested that the facts presently before the Court
do not disclose any public interest involved in this application

for relief. The short answer to that submission is that the

relevant public interest is identified in the language of	s.45D(lA) itself, whereas here the evidence discloses, as far as
the two Gilbertson companies alone are concerned, that stoppages up to mid-December 1990 have inflicted a loss of export revenue of the order of $7 million. It cannot be said that there is no public interest in the grant of interlocutory relief. There is some force in the submission that the applicant has endured 44 separate stoppages between 15 November and 6 December 1990 before approaching this Court for relief. However, I do not consider that circumstance to detract from the public interest to which I have just referred, or to amount to delay of a magnitude to warrant the discretionary refusal of an interlocutory injunction.
Another invitation to refuse the present application was founded on s.80AA of the Trade Practices Act as to which French
J said in Flower Davies Wemco Ptv Ltd v Australian Builders
Labourers' Federated Union of Workers. WA Branch (1986) 20 I.R.

*The section empowers the court to stay an injunction already granted to restrain a contravention of a45D where there is a proceeding pending before the Commission in respect of a dispute relating to that conduct. The power is conditioned by the requirement that the court must consider that the stay of the operation of the injunction would be likely to facilitate the settlement of the dispute by conciliation and that in all the circumstances it would be just to do so.

The section does not a ~ v l v to a case where the court is considering whether or ndt' 60 grant an injunction. However the legislative policy implicit in the section must be respected and is-a relevant factor to be weighed in the exercise of the courtvs discretion."

I doubt, with respect, whether weight can be logically attached in deciding whether or not to grant an injunction to a	legislative policy which is expressly framed so as to be capable
of implementation only after an injunction has been granted. However, assuming it to be appropriate to take account in an anticipatory way of the policy to which his Honour referred, I am unable on the present state of the evidence to form a view as to whether a stay of the injunction which I am invited to grant would be likely to facilitate the settlement of the dispute by conciliation.
Pincus J then quoted the words to which I have added emphasis from the judgment of Wilcox J in the Concrete Conetructions Case and continued, at 180:

"Applying that view to the present case would achieve the result that there was separate conduct by the respondente in respect of each abattoir in concert with employees at that abattoir. That analysis does not fit the facts alleged well; the inference the applicants desire to have drawn from the evidence is that the respondente determined upon and brought about contemporaneous stoppages at a number of abattoirs and if they did so, it is hard to see how one could avoid the conclusion that they acted in concert with employees at all the various abattoirs involved in such stoppages."

His Honour had earlier acknowledged, at 178, that on the construction which he adopted at s.45D(lA) and (3) "the relevant provision" makes much ordinary industrial action, such as strikes arranged or co-ordinated by a union, prima facie unlawful as long as it involves preventing or hindering export or interstate trade or commerce. The only exception to that proposition which appears likely to be of significance in practice is that, on the applicants' argument, the industrial action may be protected if it is confined to employees of one employer. It is not the case that the statute saves from its	operation industrial pressure which is not "directed to	overturning the decision of a properly constituted industrial
tribunal" or otherwise of a kind which this Court might regard as a pursuit of a "legitimate industrial objective" to use the applicants1 language.
Accordingly, his Honour concluded, at 183, that "as to all the abattoirs, there is evidence raising a serious question to
tried as to whether some of the respondents took steps to arrange for or encourage stoppages deposed to in the material".
To negate the existence of a serious question to be tried by invoking s.45D(3) in the present case, the AMIEU has to make good one of two propositions. The first is that the construction favoured by Pincus J in the MATFA (Old) Case was not even arguably correct. It is inappropriate for me to essay my own construction of s.45D(lA) and s.45D(3)(b) but I cannot conclude that no serious argument can be advanced in support of the construction which was outlined in the MATFA (Old) Case.
After judgment on this application for interlocutory relief was reserved at the conclusion of argument on 6 February 1991, a further affidavit was filed detailing further industrial action at the respective premises of R.J. Gilbertson Pty Ltd and McPhee Export Meats Pty Ltd on 8 February 1991. Accordingly, the application was listed for further argument on 11 February 1991.
An examination of that further evidence in the light of submissions from Counsel leads to reinforce the impression
created by the earlier evidence that the industrial action against R.J. Gilbertson Pty Ltd was part of the national campaign "mounted by the AMIEU in support of its claim for an increase in wages in line with the "Accord Mark VI". However,
the further evidence also tends to confirm the inference which I earlier regarded as the most readily available that dominant purpose of the recent action against McPhee Export Meats Pty Ltd was to compel that company to make good its arrears of contributions to the Meat Industry Employees Superannuation Fund, or to punish it for falling into arrears.
In the result, therefore, the interlocutory relief which I consider should be granted is confined to R.J. Gilbertson Pty Ltd and Gilbertson Group Services Pty Ltd. Because the further hearing of the application for an injunction which is listed to comence before Jenkinson J today is unlikely to conclude before next Friday, the injunction has been expressed to remain in force until 4.15 p.m. on that day or further order. The order of the Court made this day is as follows:
1. That upon the applicant by its counsel undertaking to the

Court to pay to any party adversely affected by the interlocutory injunctions hereby granted such compensation (if any) as the court thinks fit in such manner as the court directs, it is ordered that the respondent be restrained whether by itself, its employees and agents or otherwise

order from:	howsoever until 4.15 p.m. on 22 February 1991 or further	(a)	imposing, giving effect to or enforcing any ban on the
provision by any person of labour to either of Gilbertson Group Services Pty Ltd or R.J. Gilbertson Pty Ltd ("the companies") where any such ban has the purpose and would have or be likely to have the effect of substantially hindering the respective company from:

(i) slaughtering stock at the abattoirs and boning

rooms operated by the specified proprietors;

(ii)processing such slaughtered stock at any abattoir

or boning room;

(iii) selling such slaughtered or processed stock and

by-products therefrom

where such conduct of the respective company constitutes

engaging in trade or commerce:

A. between Australia and places outside

Australia; or

B.	among the States; or
C.	between a State and Territory.

(b) directing or advising any of the members of the

Respondent who are in employment at any of the abattoirs and boning rooms operated by either of the companies to withdraw their labour where any such direction or advice is for the purpose or would have or be likely to have the effect of substantially hindering or preventing that company from engaging in trade or commerce:

(i)between Australian and places outside Australia;

or

(ii) among the States; or

(iii) between a State and Territory.

(c)	aiding, abetting, counselling or procuring any person or
persons to engage in the conduct referred to in sub- paragraphs (a) and (b) hereof;
(d)	inducing or attempting to induce a person or persons,
whether by threat, promises or otherwise to engage in the said conduct.

PROVIDED that nothing herein shall restrain any conduct

which is engaged in by the respondent in concert with one or more of the following persons (and not in concert with any

other person)

(i) an officer or officers of the respondent; and

(ii) an employee, or two or more employees who are

employed by one or other of the companies

and the dominant purpose for which the conduct is engaged in
is substantially related to

(iii) the remuneration, conditions of employment, hours

of work or working conditions of the employee, or of any of the employees referred to in sub- paragraph (ii) of this proviso; or

(iv)the company being the employer referred to in sub-

paragraph (ii) of this proviso having terminated, or taken action to terminate, the employment of any of its employees.

2.  That the application for interlocutory relief and the

directions hearing herein be adjourned to be heard by
Jenkinson J at 10.15 a.m. this day.

3.  That the costs of both parties of the hearings on 6 and 11

February 1991 be reserved.

I certify that this and the preceding twenty

(20) pages are a true copy of the Reasons for
Judgment of his Honour Mr Justice Ryan.

Associate: 6&~

Date: 20 C&&U

Counsel for Applicant	:	Mr R.R.S. Tracey
Solicitors for Applicant	:	Meeere Dunhill Madden Butler
Counsel for Reepondent	:	Mr M. Bromberg

Solicitore for Reepondent	: Ryan Carlisle Thomae
Date of Hearing	: 6 February 1991
Date of Judgment	: 20 February 1991