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

[1991] FCA 100

JUDGI\AENT No. .!..~..2 .... /?.l ........ ...

IN THE FEDERAL COURT OF AUSTRALIA	)
VICTORIA DISTRICT REGISTRY	) NO. VG367 of 1990
GENERAL DIVISION	)

BETWEEN:  MEAT & ALLIED TRADES F E D E R A T I O N 0 F AUSTRALIA

Applicant

AND :  AUSTRALASIAN MEAT INDUSTRY EMPLOYEES' UNION

Respondent

Jenkinson J.

Melbourne

4 March, 1991

REASONS FOR JUDGMENT

Trial of a proceeding.

2. Each of the applicant and the respondent is a body corporate by virtue of Commonwealth industrial relations legislation, the former representing employers and the latter employees. Some nine named companies which are members of the applicant, and which engage in international and inter-State trade and commerce in the vending of meat, were, by those of their employees (as they may for the present be assumed to have been) who were at relevant times members of the respondent, denied the benefit of those employees' services at the plants and on the dates respectively specified by crosses

on the following table: 

Plant	Date of Sto~~aaes
OCTOBER NOVEMBER DECEMBER F E BRUARY
19 22 23 26 29 2 16 19 20 23 26 27 7 10 11 12 1 4 8 11 12 13
Teys Bros. (Beenleigh)	X X X
Associated Meat Exports	X X X X
F.J. Walker Townsville	X X X
AMH Rockhampton	X X X
AMH Beaudesert	X X X
F.J. Walker Dimnore	X
Beef City Pty Ltd	X X X
South Burnett Meat Works	X X X X
R.J. Gilbertson Pty Ltd	X X X X

X X X X X X X X X X X

Gilbertson Group	X	X X X	X X X X X X	X X	X X
Services Pty Ltd
Noble Einseidel Pty Ltd	X X

McPhee Export Meats X X X X X X X X X X X X X X

These denials of service (or stoppages as I shall call them) hindered the acquisition, by the employers' customers from the employers, of the meat in which the employers dealt. Each stoppage was engaged in by the employees of their particular employer for the purpose, and was likely to have the effect, of causing substantial loss to that employer's business. Each stoppage was engaged in by the employees of their particular employer for the purpose, and was likely to have the effect, of substantially hindering their employer from engaging in that trade and commerce. The applicant claims that the respondent, in concert with others, engaged in conduct which caused the stoppages. In the alternative it was claimed that the respondent "was knowingly involved in the organisation of the stoppages " . The conduct in which the respondent was alleged to have engaged was claimed to have been for the purpose, and to have been likely to have the effect, of substantially hindering each of the nine named members of the

causing substantial loss to the business of each of those	applicant from engaging in that trade and commerce, and of
persons.
3. The conduct of the respondent was alleged in these terms in the amended statement of claim:

"10. From 19 October 1990 the Respondent, acting in concert with its officers and/or shed delegates, has issued numerous directions to employees of the meat exporters .... to cease performing their duties in accordance with the terms of their respective contracts of employment.

PARTICULARS

11.  Further, or in the alternative, from 5 October, 1990 the Respondent, acting in concert with its officers and/or shed delegates, urged and/or incited and/or encouraged employees of the meat exporters

.... to cease performing their duties in

accordance with their respective contracts
of employment.

PARTICULARS

13.  The Respondent in concert with its officers and/or its members employed by each of the meat exporters .... planned and/or co-ordinated and/or otherwise was knowingly involved in the organisation of the stoppages particularised in paragraph 12.

PARTICULARS

........ ........ ........ ........ ........ .

The expression "the meat exporters" designated in the amended statement of claim the nine members of the applicant to which

reference has been made.

4. The occasion of the stoppages was the presentation, to employers of meat workers employed in Australian abattoirs in slaughtering animals and preparing the meat for sale, of claims relating to the remuneration and other conditions of employment of the meat workers employed by each employer. The Federal Executive of the respondent had formulated the claims, as it was said in conformity with an agreement, between the Executive Government of the Commonwealth and the Australian Council of Trade Unions, called Accord Mark 6. There were some minor variations from that formula in some of the claims presented to each of the nine employers, but they were substantially identical claims. No purpose or motive on the part of any person with whom the court is presently concerned and who approved the stoppages has been suggested except to cause financial loss to one or more of the employers to whom the benefit of their meat workers' services was denied and thereby to induce acceptance by that one or those several employers of the claims in order to avoid a further stoppage or further stoppages.

5.        The relief claimed against the respondent was

injunctive, to restrain its participation in, or its encouragement of, any further such stoppages. The ground of the claim assigned was contravention by the respondent of s.45D of the Trade Practices Act 1974. The conduct alleged in paragraph 10 of the amended statement of claim was "directions

their duties in accordance with the terms of their respective to employees of the meat exporters .... to cease performing	contracts of employment". Such exiguous evidence as there was
of conduct, on the part of any person for whose conduct the respondent might be regarded as legally responsible, which might be thought to amount to a direction of that kind was not persuasive. I do not find that any such a direction was given by the respondent. In paragraph 11 the conduct alleged is urging and inciting and encouraging employees of the meat exporters to cease performing their duties in accordance with their respective contracts of employment. Of this conduct there was ample evidence, direct and circumstantial. The Federal Council of the respondent, to which exercise of the "supreme control of the Union" vested in its members is committed by the respondent's registered rules, resolved on 5 September 1990 to "mount an industrial campaign to ensure that the full demands are met" which find expression in the claims to which I have referred. In early October 1990 one of the respondent's organisers addressed members of the respondent employed at the Beenleigh plant of Teys Bros. (Beenleigh) Pty. Ltd., one of the nine companies. He advised them to support the claims and informed them that the campaign to gain acceptance by their employer of the claims would be "run by the National Office and they will not give you more than one day off a week". By the quoted words he meant, and would have been understood, as I find, by those he addressed to mean, that the National Executive of the respondent, to which power to exercise between meetings of the Federal Council all the
powers of that Council is committed by the respondent's rules, will specify to members days recommended as occasions for stoppages of work in support of the claims and will specify
for that purpose no more than one day in any week. A newsletter published by the respondent to its members shortly before 18 October 1990 declared that, if the applicant failed at a meeting to be held on that date to agree to the claims, the Federal Executive would "organise a national campaign of industrial action against a11 employers who are members" of the applicant and "covered by Federal and/or State Awards". The newsletter included what was therein represented to be quotations from a resolution of the Federal Council : "Federal Council calls on the Federal Executive to develop membership awareness 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 . . . . Federal Council calls on the Federal Executive to implement and co-ordinate the campaign". Contextual considerations indicate that the quotations had reference to the claims. Evidence of accurate prophecy of many of the stoppages which occurred in all or, sometimes, most of the abattoirs specified in the table in paragraph 2 hereof, by a number of persons unlikely to have been able to achieve that accuracy unless the respondent's officers and employees had given them assurance of those impending events, together with the evidence which the table itself summarises, lead me to infer that officers of the respondent suggested to members of Shop Committees, for the election of which
Union are employed" the respondent's rules provide, and which "wherever practicable in establishments where members of the
the evidence showed to be constituted and functioning in those abattoirs, the dates on which the stoppages subsequently occurred as dates suitable for such stoppages.
6. The conduct alleged in paragraph 11 of the amended statement of claim was undoubtedly engaged in by the respondent in concert with its officers, or some of them. The next question is whether that conduct, was, as the applicant alleged, "conduct that hinders .... the acquisition of goods by" the customers of the meat exporters "from" the meat exporters. Only engagement in conduct that has that effect satisfies the requirement which is expressed in the first clause of s.45D(l), contravention of which is alleged. The words "conduct that hinders" in my opinion import a causal connection between the conduct and the hindering which is specified. Where the voluntary acts of human beings constitute a step in a causal progression suggested, great caution is required. (See Hart and Honore : Causation in the Law (2nd ed.) Ch. VI.) What hindered the acquisition of the meat was the stoppage, in each case, of work for the day. What caused the stoppage, in each case, was the passing, by a majority of those of the respondent's members who were employed in the abattoir and voting, of a resolution to have that stoppage. While I would be prepared to find that for each of many of those who constituted, in each case, that majority the belief that the proposed stoppage was advocated by the respondent was a consideration inclining him to vote in
who constituted, in each case, the majority that the conduct influence of such a belief was so strong upon so many of those favour of the stoppage, I am not persuaded to find that the
of the respondent and its officers which gave rise to the belief could be admitted as a cause of the majority vote and so of the stoppage and so of the hindering.
7. Evidence was adduced on behalf of the respondent that no audible expression was given, at any of the meetings during which stoppages of work were resolved upon by employees, to any opinion or recommendation of the respondent that the stoppage should occur. I do not make any finding contradictory of that evidence. But I do find that most of those attending each meeting believed that the respondent was in favour of the stoppage and that the belief was reasonably formed by reference to communications by officers and servants of the respondent which the respondent had authorised.
8. Section 4(2)(a) of the Trade Practices Act 1974
provides :

"In this Act -

(a) a reference to engaging in conduct shall be read as a reference to doing or refusing to do any act, including the making of, or the giving effect to a provision of, a contract or arrangement, the arriving at, or the giving effect to a provision of, an understanding or the requiring of the giving of, or the giving of, a covenant;"

understanding being each within what is signified by a The making of an arrangement and the arriving at an	reference in the Act to engaging in conduct, the resolution by
a meeting of employees upon a stoppage, they knowing that the respondent and its officers were advocating the holding of that stoppage, might constitute the making of an arrangement, and the arriving at an understanding, between the respondent and its officers and those employees, and so the engaging by those persons in conduct in the sense intended in sub-sections
(1) and (1A) of s.45D. Of course a group of employees so
circumstanced might have resolved upon a stoppage advocated to them by the respondent without constituting such an arrangement or understanding : they might have so resolved without any regard to the wish, or the interest, of the respondent. But I infer from the whole of the evidence that the resolutions for stoppages, at least for those which occurred on 19 October, 16 November and 19 November, manifested acceptance, by most of those who voted upon the resolutions, of what the respondent was proposing to them : on each occasion, a stoppage on a day on which, as the respondent hoped and expected, stoppages would occur at a number of abattoirs, as a sign to employers of meat workers at abattoirs of combination of all such workers and the respondent in persuasion to acceptance of the claims by causing substantial loss to those employers. I think the probability greater that voting support for the resolution was intended by the voter, and was understood by the respondent's officers, as acceptance of the respondent's proposal that all should stop work on the one day than that voting support for the resolution was not intended as such an acceptance.
9. If there was such an arrangement and understanding, there is no doubt of the connection between the making of the arrangement and the arriving at the understanding as cause and the hindering of acquisition of meat as effect. Nor can the making of the arrangement and the arriving at the understanding, considered as a species of engaging in conduct, be denied characterisation as being "in concert". So, too,
must it be concluded that the conduct identified was engaged in for the purpose, and would be likely to have the effect, of causing substantial loss to the business of the employer the acquisition of whose meat was hindered by the conduct.
10. It may be said that the foregoing analysis of the elements of a contravention of ~.45D(l)(b)(i) by the respondent travels outside what was pleaded concerning the conduct, engagement in which is of the gist of each of the causes of action given by sub-section 45D(1). But I think that the words in paragraph 13 of the amended statement of claim, "The Respondent in concert with its officers and .... its members employed by each of the meat exporters . . . . planned .... the stoppages", will suffice to comprehend what I have found to have been the conduct engagement in which constituted, in the circumstances otherwise required by ~.45D(l)(b)(i), a contravention of that provision by the
respondent. No point of insufficiency of pleading was taken by Mr. North Q.C., who appeared with Mr. Bromberg for the respondent, when I put the analysis to him in the course of
his final submissions.
11. Reliance was placed by the respondent, as a defence alternative to its denial that it had engaged in any conduct comprehended by sub-section 45D(1) or sub-section 45D(lA), on the provisions of sub-section 45D(3), which reads:

"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 o f 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 employees."

12. The essayed proof was of the matters specified in paragraph 45D(3)(b). I find, and I did not understand Mr. Russell Q.C., who appeared with M r . Tracey folr the applicant, to suggest the contrary except in certain instances to be mentioned later, that in most of the instances with which the proceeding is concerned the dominant purpose for which the conduct, upon which a contravention of sub-sec. 45D(1) by the respondent would found, was engaged in was substantially related to remuneration and other conditions of employment. Paragraph (b) of sub-sec. 45D(3) extends the exculpation with which the sub-section is concerned in a case of conduct engaged in by persons in concert with each other each of whom answers one or other of several descriptions, namely - an organization of employees; an officer of such an organization; an employee employed by the same employer as each other employee who has engaged in the conduct in concert. If, but only if, the dominant purpose of the person in respect of whose exculpation the operation of the sub-section is invoked was substantially related to the remuneration or other	conditions of employment of any of the persons engaged in the	conduct who answer the third-named description, exculpation is
attracted. Exculpation is gained by virtue of the operation of paragraph 45D(3) (b) only if the conduct engaged in by the person seeking it was in concert only with persons who answer one or other of the descriptions I have specified. That limitation is effected by the phrase "(and not in concert with any other person) ". These characteristics of sub-section 45D(3) add emphasis to what is clear enough from a consideration of sub-section 45D(1) and the introductory clause of sub-section 45D(3) which precedes the lettered paragraphs thereof : the former sub-section affords a cause of action precisely defined by reference to specified consequences of conduct for each of two, and only two, persons ("a third person" and "a fourth person"), and the latter sub- section exculpates from liability upon that precisely defined cause of action. It follows, in my opinion, that a separate cause of action is afforded in respect of each person the acquisition of whose meat was hindered by a stoppage, and that the conduct in respect of whlch exculpation is claimed in reliance on sub-section 45D(3) 1s the conduct by which that hindering was effected. If that be so, in the circumstances here found the making, by the respondent and the employees of Teys Bros (Beenleigh) Pty. Ltd. ("Teys") who voted for the stoppage at that company's works on 19 October 1990, of an arrangement that the stoppage would occur on that day, to take an example, was the conduct which hindered the acquisition of that company's meat by one of its customers, and is the conduct in respect of which the exculpating provisions of
paragraph 45D(3)(b) must be shown to be attracted. This the
respondent essays to do by inviting a finding that the only parties to the arrangement so made were all within one or other of the several descriptions of persons contained in sub- paragraphs (i) and (ii) of paragraph 45D(3)(b). That requires the respondent to prove that the arrangement was not one to which an employee of any person other than Teys was a party, unless he were an officer of the respondent. I am certainly persuaded that some of the employees of employers other than Teys who voted for stoppage on 19 October 1990 made no arrangement with the respondent, and arrived at no understanding with the respondent, that there should be also a stoppage at Teys' abattoir. Some of them who voted in the belief that there would be also stoppages at other abattoirs and in the knowledge that the respondent was proposing, as I find that the respondent was proposing, to them, as to many others, an arrangement and an understanding between them all that there should be simultaneous stoppages in many abattoirs, were no doubt indifferent to the proposal and intended by their votes to signify nothing more than their agreement that there should be a stoppage at the abattoir in which the voter worked. I infer, however, that at each meeting at which resolution was taken for stoppage on 19 October and for stoppage on 16 November and for stoppage on 19 November and for stoppage on 16 and 19 November some of those who voted for stoppage had acceded to the respondent's proposal for an
relevant day or the relevant two days, respectively, a arrangement and an understanding that there should be on the
stoppage at a number of abattoirs, and had communicated that accession to the proposal, directly or indirectly, to officers of the respondent, and had thereby become parties to the arrangement and the understanding proposed. There are thus disclosed two classes of arrangements and understandings between the respondent and the employees who voted for stoppages. In one case the arrangement or understanding is merely that there shall be a stoppage at the abattoir where the employee works. In the other case the arrangement or understanding is that there shall be a stoppage at that and other abattoirs. But in the case of each abattoir - let Teys' abattoir provide the example again - the only arrangement or understanding which has hindering effect, and therefore the only arrangement or understanding which may be characterised as in contravention of sub-section 45D(1) is one to which were parties a majority of the employees of Teys who voted on the resolution for the stoppage under consideration at Teys' abattoir. If a majority of those voting at the meeting when a particular stoppage at Teys' abattoir was resolved upon had both voted for that stoppage and had been parties to an arrangement or understanding that there should be stoppages on that day at a number of abattoirs, it could rightly be concluded, in my opinion, that it was the making of that arrangement or the arrival at that understanding which hindered the acquisition of meat from Teys, by reason of events consequent upon the stoppage. The vote for the
effect or consequence of the voter's adhesion to the stoppage at Teys' abattoir in those circumstances would be an
arrangement or understanding proposed by the respondent for stoppages at a number of abattoirs on the one day, and the vote in turn caused the stoppage and the hindering on that day at Teys ' abattoir. In that event the making of the arrangement, and the arriving at the understanding, that there should be a number of contemporaneous stoppages would constitute the conduct of the respondent contravening, in relation to that hindering, sub-section 45D(1). To that arrangement and understanding persons who were not employees of Teys were parties and the limitation in respect of "concert" imposed by paragraph 45D(3) (b) would not be satisfied.
13. I have not been persuaded to find, in relation to any of the stoppages on 19 October, 16 November and 19 November, that fewer than a majority of those voting at a relevant meeting both voted for the stoppage and were parties to the arrangement or understanding that there be a number of stoppages on the relevant date. The onus of proof of matters required to attract the operation of sub-section 45D(3) is on the respondent. The evidence justifies the affirmative finding that the respondent proposed to all its members in the abattoirs the subjects of this proceeding the making of an arrangement, and an understanding, between the respondent and them that simultaneous stoppages should occur at those abattoirs on those days. The evidence that some of those employees concerned themselves only with the question whether a stoppage at the particular abattoir where they respectively
worked should be held on a particular day is not inconsistent with the hypothesis that a majority of those voting at each meeting both voted for the particular stoppage and were parties to the arrangement for a number of stoppages on that day. I am not persuaded that what the respondent proposed did not gain the assent of most of those who voted on the resolution for stoppage.
14. It is not admissible, in my opinion, to regard an employee who was party to the arrangement that there be stoppages in a number of abattoirs as party to another arrangement that there be a stoppage where he worked. I find nothing in the evidence or in the provisions of s.45D to justify such an analysis.
15. The conclusions follow that in respect of each stoppage on those three dates a contravention of sub-section 45D(1) by the respondent occurred.
16. I find that the arrangements and understandings were made and arrived at for the purpose, and were likely to have the effect, of substantially hindering the meat exporter at whose abattoir the stoppage occurred on each of those three dates from engaging in trade and commerce in meat between Australia and places outside Australia. The conclusions follow that in respect of each stoppage on those three dates a
occurred. contravention of sub-section 45D(lA) by the respondent 17.
The relief sought by the applicant is injunctive. It may be that the parties may be content to leave undetermined those of the causes of action alleged which found on events on other dates. The amended statement of claim includes allegations that at some of the abattoirs where stoppages occurred the members of the respondent who are employed are employed by more than one employer. That circumstance, if it existed, might affect the determination of some of the questions which arise in the proceeding. As a result of the commendableb zeal which animated the parties' legal representatives' efforts to have ready for trial in the middle of February so complex a proceeding instituted in the middle of December, a great volume of evidence was presented in coherent order during a few days. But it was realised when the hearing was about to conclude that neither party was satisfied with the state of the evidence relevant to this matter. At their request I reserved them leave to re-open their respective cases after publication of reasons for my conclusions reached without regard to the possibility that there was more than one employer in an abattoir, and before any final order was made. In any event, I would wish to hear counsel for the parties as to the terms of injunctive relief.
18. Further consideration of the proceeding will be adjourned to a date to be fixed. I certify that this and the 18

preceding pages are a true copy of the Reasons for Judgment of the Honourable Mr. Justice Jenkinson.

Dated: 4 March, 1991

Counsel for the Applicant	Mr. P.G. Russell Q.C. and
Mr. R.R.S. Tracey
Counsel for the Respondent :	Mr. A.M. North Q.C. and Mr.
M. Bromberg
Solicitors for the Applicant :	Dunhill Madden Butler
Solicitors for the	Ryan Carlisle Thomas
Respondent
Dates of Hearing	20, 21, 22, 25 and 26 February, 1991