Meat & Allied Trades Federation of Australia v Australasian Meat Industry Employees Union

[1991] FCA 99

Re: MEAT AND ALLIED TRADES FEDERATION OF AUSTRALIA
And: AUSTRALASIAN MEAT INDUSTRY EMPLOYEES' UNION
No. V G367 of 1990
FED No. 99
Trade Practices
(1991) 13 ATPR 41-101

COURT

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
Jenkinson J.(1)

CATCHWORDS

Trade Practices - Restrictive trade practices - Secondary boycotts - Concerted conduct affecting supply - Making of an arrangement as "conduct" - Arriving at an understanding as "conduct".

Trade Practices Act 1974 - s.45D

HEARING

MELBOURNE

#DATE 18:3:1991

Counsel for the Applicant: Mr P.G. Russell QC and Mr R.R.S. Tracey

Counsel for the Respondent: Mr A.M. North QC and Mr M. Bromberg

Solicitors for the Applicant: Dunhill Madden Butler

Solicitors for the Respondent: Ryan Carlisle Thomas

ORDER

The respondent not do whether by itself or by any servant or agent in furtherance of a claim expressed in a communication by the respondent to the applicant on or about 14 September 1990 of several claims relating to terms of employment of certain members of the respondent and called collectively the Accord Mark VI Claim any of the following things:

(a) make in concert with another person a contract or an

arrangement that hinders or prevents the acquisition of meat from any of the companies the names of which are specified in the schedule to this order in the course of business of that company and that is made for the purpose of causing substantial loss or damage to the said business and that would be likely to have the effect of causing such substantial loss or damage except a contract or an arrangement in concert with one or more of that company's employees and in concert with no other person except a person or persons of a description contained in sub-paragraph 45D(3)(b)(i) of the Trade Practices Act 1974 the dominant purpose for the making of which contract or arrangement is substantially related to the remuneration or the conditions of employment or the hours of work or the working conditions of one or more of the employees in concert with whom the contract or arrangement is made or substantially related to that company's termination of the employment of any of its employees or to that company's action taken to terminate the employment of any of its employees;

(b) give in concert with another person effect to a

provision of a contract or an arrangement the giving of effect to which hinders or prevents the acquisition of meat from any of the said companies in the course of business of that company and the giving of effect to which is for the purpose of causing substantial loss or damage to the said business and the giving of effect to which would be likely to have the effect of causing such substantial loss or damage except a provision the giving of effect to which is in concert with one or more of that company's employees and in concert with no other person except a person or persons of a description contained in sub-paragraph 45D(3)(b)(i) of the Trade Practices Act 1974 and the dominant purpose for the giving of effect to which is substantially related to the remuneration or the conditions of employment or the hours of work or the working conditions of one or more of the employees in concert with whom effect is given to the provision or substantially related to that company's termination of the employment of any of its employees or to that company's action taken to terminate the employment of any of its employees;

(c) arrive in concert with another person at an

understanding that hinders or prevents the acquisition of meat from any of the said companies in the course of business of that company and that is arrived at for the purpose of causing substantial loss or damage to the said business and that would be likely to have the effect of causing such substantial loss or damage except an understanding in concert with one or more of that company's employees and in concert with no other person except a person or persons of a description contained in sub-paragraph 45D(3)(b)(i) of the Trade Practices Act 1974 the dominant purpose for arriving at which understanding is substantially related to the remuneration or the conditions of employment or the hours of work or the working conditions of one or more of the employees in concert with whom the understanding is arrived at or substantially related to that company's termination of the employment of any of its employees or to that company's action taken to terminate the employment of any of its employees;

(d) give in concert with another person effect to a

provision of an understanding the giving of effect to which provision hinders or prevents the acquisition of meat from any of the said companies in the course of business of that company and the giving of effect to which provision is for the purpose of causing substantial loss or damage to the said business and the giving of effect to which provision would be likely to have the effect of causing such substantial loss or damage except a provision the giving of effect to which is in concert with one or more of that company's employees and in concert with no other person except a person or persons of a description contained in sub-paragraph 45D(3)(b)(i) of the Trade Practices Act 1974 and the dominant purpose for the giving of effect to which is substantially related to the remuneration or the conditions of employment or the hours of work or the working conditions of one or more of the employees in concert with whom effect is given to the provision or substantially related to that company's termination of the employment of any of its employees or to that company's action taken to terminate the employment of any of its employees;

(e) make in concert with another person a contract or an

arrangement which is likely to have the effect of preventing or substantially hindering any of the said companies from engaging in trade or commerce between Australia and places outside Australia or among the States of the Commonwealth or within a Territory or between a State and a Territory or between two Territories for the purpose of preventing or substantially hindering that company from engaging in trade or commerce between Australia and places outside Australia or among the States of the Commonwealth or within a Territory or between a State and a Territory or between two Territories respectively except a contract or an arrangement in concert with one or more of that company's employees and in concert with no other person except a person or persons of a description contained in sub-paragraph 45D(3)(b)(i) of the Trade Practices Act 1974 the dominant purpose for the making of which contract or arrangement is substantially related to the remuneration or the conditions of employment or the hours of work or the working conditions of one or more of the employees in concert with whom the contract or arrangement is made or substantially related to that company's termination of the employment of any of its employees or to that company's action taken to terminate the employment of any of its employees;

(f) give in concert with another person effect to a

provision of a contract or arrangement the giving of effect to which provision is likely to have the effect of preventing or substantially hindering any of the said companies from engaging in trade or commerce between Australia and places outside Australia or among the States of the Commonwealth or within a Territory or between a State and a Territory or between two Territories and the giving of effect to which provision is for the purpose of preventing or substantially hindering that company from engaging in trade or commerce between Australia and places outside Australia or among the States of the Commonwealth or within a Territory or between a State and a Territory or between two Territories respectively except a provision the giving of effect to which is in concert with one or more of that company's employees and in concert with no other person except a person or persons of a description contained in sub-paragraph 45D(3)(b)(i) of the Trade Practices Act 1974 and the dominant purpose for the giving of effect to which provision is substantially related to the remuneration or the conditions of employment or the hours of work or the working conditions of one or more of the employees in concert with whom effect is given to the provision or substantially related to that company's termination of the employment of any of its employees or to that company's action taken to terminate the employment of any of its employees;

(g) arrive in concert with another person at an

understanding which is likely to have the effect of preventing or substantially hindering any of the said companies from engaging in trade or commerce between Australia and places outside Australia or among the States of the Commonwealth or within a Territory or between a State and a Territory or between two Territories for the purpose of preventing or substantially hindering that company from engaging in trade or commerce between Australia and places outside Australia or among the States of the Commonwealth or within a Territory or between a State and a Territory or between two Territories respectively except an understanding in concert with one or more of that company's employees and in concert with no other person except a person or persons of a description contained in sub-paragraph 45D(3)(b)(i) of the Trade Practices Act 1974 the dominant purpose for arriving at which understanding is substantially related to the remuneration or the conditions of employment or the hours of work or the working conditions of one or more of the employees in concert with whom the understanding is arrived at or substantially related to that company's termination of the employment of any of its employees or to that company's action taken to terminate the employment of any of its employees;

(h) give in concert with another person effect to a

provision of an understanding the giving of effect to which provision is likely to have the effect of preventing or substantially hindering any of the said companies from engaging in trade or commerce between Australia and places outside Australia or among the States of the Commonwealth or within a Territory or between a State and a Territory or between two Territories and the giving of effect to which provision is for the purpose of preventing or substantially hindering that company from engaging in trade or commerce between Australia and places outside Australia or among the States of the Commonwealth or within a Territory or between a State and a Territory or between two Territories respectively except a provision the giving of effect to which is in concert with one or more of that company's employees and in concert with no other person except a person or persons of a description contained in sub-paragraph 45D(3)(b)(i) of the Trade Practices Act 1974 and the dominant purpose for the giving of effect to which is substantially related to the remuneration or the conditions of employment or the hours of work or the working conditions of one or more of the employees in concert with whom effect is given to the provision or substantially related to that company's termination of the employment of any of its employees or to that company's action taken to terminate the employment of any of its employees.

(i) counsel, procure or attempt to induce any other person to do any of the things which the respondent is hereinbefore ordered not to do or aid or abet the doing by any other person of any of the things which in the foregoing paragraphs of this order the respondent is ordered not to do.

The applicant's costs of the proceeding including costs reserved be paid by the respondent. The Schedule F.J. Walker Ltd.

Beef City Pty. Ltd.

Australia Meat Holdings Pty. Ltd. Associated Meat Exports Pty. Ltd. Teys Bros. (Beenleigh) Pty. Ltd. South Burnett Meatworks Co-operative Association Limited McPhee Export Meats Pty. Ltd. R.J. Gilbertson Pty. Ltd.

Noble Einsiedel Pty. Ltd.

NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

Further consideration of this proceeding was adjourned on 4 March 1991, when my conclusions on most of the issues were published, together with reasons for those conclusions.

1. Leave had been reserved, at the parties' request, to re-open each party's case concerning a particular issue. When the hearing was resumed on 12 March 1991 I was informed that neither party desired to re-open its case before final orders determining the proceeding were pronounced, but that the parties had almost reached an agreement, which might be in the following terms:
   

"Whereas:

A. The Applicant in paragraph 5 of the Amended Statement of Claim herein raised allegations (`the allegations') that two or more companies were employers of labour at the following plants:

(i) F.J. Walker - Dinmore

(ii) F.J. Walker - Townsville

(iii) AMH Rockhampton

(iv) AMH Beaudesert; B. The Respondent denies these allegations. C. The Respondent alleges at paragraph 5 of the Further Amended Defence that the relevant employer of labour is the holding and/or controlling company within any group of companies which employs labour. D. The Respondent, inter alia, alleges at paragraphs 21 and 22 of the Further Amended Defence that if it was engaged in any conduct therein referred to, in concert, it was so engaged in concert with the employees of one employer only.

E. Jenkinson J did upon application by both parties on 22 February, 1991 reserve to the parties leave to re-open their respective cases in relation to any issue arising from the respective allegations referred to above (`the allegations').

F. The allegations, if proved, may affect the determination of some of the questions which arise in the proceedings in the event that the decision of Jenkinson J made 4th March, 1991 is set aside or varied on any appeal.

The parties agree that the liberty to re-open their cases on any issue arising from the allegations only be exercised in the event that:

(a) an appeal is instituted by the Respondent against the decision of Jenkinson J of 4th March, 1991 and such an appeal is determined;

(b) any further appeal if instituted by either party, is determined; and

(c) in the opinion of either party the decision on appeal or any further decision on appeal therefrom makes it relevant for the Court to determine the issues arising from the allegations."

1. It seems unnecessary that I say anything about any such an agreement, if agreement there is to be, except to point out that nothing happened on 4 March 1991 in respect of which an appeal could be instituted, unless it were that on that day an order was made that further consideration of the proceeding be adjourned to a date to be fixed.

2. On 12 March 1991 I heard submissions as to the terms of the orders which should be made. The applicant submitted that, in addition to orders enjoining the respondent from conduct of the kind found to have been engaged in by it in contravention of s.45D of the Trade Practices Act 1974, the respondent should be ordered to "cause to be delivered by" a stated time "a letter addressed to each of" the nine companies to which reference is made in the reasons published on 4 March 1991 "informing each of them that the Respondent has terminated and will not in future prosecute the national campaign or industrial action which was authorised by the Respondent's Federal Council by resolution" on a specified date.

3. I very much doubt whether the law would authorise any such an order. I would not make an order of that kind, if empowered to do so, except with the respondent's consent. At the applicant's request I have given consideration to ordering publication by the respondent to its members of information about the result of this proceeding. But I have concluded that each party should be left free to give or to withhold such information from members of the respondent. Neither party lacks the means of achieving effective communication of the information.

4. The injunctive orders should in my opinion be limited in their operation to restraint of conduct in furtherance of the industrial claims in connection with which the contraventions of s.45D occurred.

5. Counsel for the respondent submitted that no order should be made for payment of the costs of the proceeding, or of the costs of the application for interlocutory injunctive relief, which the learned judge who heard the application reserved to the trial judge. It was submitted that the amended statement of claim, in the form it took when the trial was commencing, could hardly be said to comprehend the case which was ultimately accepted by me, but did include a number of formulations of contravention of s.45D to which most of the trial was devoted and which were not accepted by me. The respondent had been, it was submitted, successful on a number of issues raised by the applicant, and had failed only on issues which in substance had been drawn out of the evidence and the section by me. The case established at trial had not been presented at all in support of the application for interlocutory relief, it was submitted, and relief had been granted on an arguable case which failed at trial.

6. There is some basis for these submissions. But the conceptual distinctions which the verbiage of s.45D attempts to draw are fine and may be perceived by one judge in a slightly different way from that in which they appear to another judge. The applicant made clear before trial the substance of the evidence which it alleged would show contravention of the section. And its allegation was found to be sustained. I think that its costs of the proceeding, including costs reserved, should be paid by the respondent.