Mudginberry Station Pty Ltd v Australasian Meat Industry Employees Union

[1985] FCA 237

CATCHWORDS

Trade Practices (Restrictive) - secondary boycott - interim injunction - defence under s.45D(31(b).

MUDGINBEHRI STATION FTY. LIMITED v. THE AUSTRUASIAN MEAT

INDUSTRY EMPLOYEES UNION	& ORS.
No. G123 of 1985
Beaumont , J . 12 June 1985 Sydney

IN THE FEDERAL COURT OF AUSTRALIA )

)

NEW SOUTH WALES REGISTRY	1	No. G123 of 1985
1
GENERAL DIVISION	)

BETWEEN :	MUDGINBERRI	STATION	PTY.	LIMITED
Applicant

THE AUSTRALASIAN MEAT INDUSTRY

EMPLOYEES UNION

First Respondent

,m:	O'TOOLE	JACK
Second Respondent

0 N A : TREVOR SU PLICE

Third Respondent

'm:

DICK ANNW.

Fourth Respondent

PAT ROUGHAN

Fifth Respondent

:

MEAT INSPECTORS ASSOCIATION

Slxth Respondent

GORDON McCOLL

Seventh Respondent

AND : ALEX THOMPSON Eighth Respondent

MINUTES OF' ORDER

Judge making order: Beaumont, J.

Date order made: 12 June 1985.

I Nhere made: Sydney

THE COURT ORDERS THAT:

1. I note hat the appllcant glves the usual

undertaking as to damages.

7	Order	that	until	the	final	determination	of	this
U .

proceeding or further order. whichever should first occur.

the first, second, third, fourth and fifth respondents and

each of them be restrained by themselves. their servants and

agents from imposing, maintaining, giving effect to or

enforcing any ban on the provision of goods or services to

the applicant at the Mudginberri Abattoirs ("the Abattoirs")

Or from setting Up or maintaining any picket line at or in

the vicinity of the Abattoirs where any such ban or picket

line has the purpose and would have or be likely to have the

effect of preventing or hlndering the ordinary day-to-day

activities and operations of the Abattoirs' business '

Including:

(a) the carrying out of works of maintenance and repair

at the Abattolrs:

(b) the	dellvery of any	livestock	for	slaughter	and
processrng;

( C ) the access to and egress from the Abattoirs of any

person o r persons providing goods or services to the

Abattoirs or otherwise involved. or engaged In its ordinary

day-to-day actlrritles In the conduct of its busmess as an

export meat processing works and an abattolrs licensed to

3 .

process and export meat from Australia:

(d)	the egress from the Abattoirs of any product of the
Abattoirs:
(e)	the sale of any processed products or by-products

of the Abattoirs.

3 . Reserve liberty to any of the respondents enjoined

by order ?. to apply on such notice	as	a judge shall allow to
discharge or vary that order.

4 . Order that the final hearing of the proceeding be

expedited.

5. Order that, as against the respondents enjoined by

order 2, the applicant's costs of this interlocutory

applicatlon be applicant's costs in the proceeding.

G . Order that the application for interlocutory relief

as agalnst the slxth, seventh and elghth respondents be

stood over generally with all costs in this connection

reserved and llberty reserved to the applicant to restore

this appllcation on such notice as a judge shall allow.

Pm: Settlement and entry of orders is dealt with in

4.

Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA )

)

NEW	SOUTH	W E S	REGISTRY	)	No.	G123	of 1985
1

GENERAL DIVISION 1

BETWEEN :	MUDGINBERRI	STATION	PTY.	LIMITED
Appllcant

AND	:	THE AUSTRALASIAN MEAT INDUSTRY
EMPLOYEES UNION First Respondent
JACK O'TOOLE Second Respondent
TREVOR SURPLICE
Third Respondent
DICK ANNEAR Fourth Respondent
PAT ROUGHAN Fifth Respondent
MEAT INSPECTORS ASSOCIATION Sixth Respondent
GORDON McCOLL Seventh Respondent
ALEX THOMFSON
Eighth Respondent

m: Beaumont. J.

DATED: 12 June 1985.

REASONS FOR JUDGMENT

(ori APPLICATION FOR INTERLOCUTORY RELIEF!

2.

injunctions against the respondents to restrain alleged

contraventions of s.45D of the Trade Practices Act, 1974

"the Act" 1 .

The applicant conducts an abattoir and export meat

processing works at Mudginberri near Jabiru, approximately

200 kilometres east of Darwin. Its operations include the

slaughter. boning, sale and export of cattle and buffalo.

The applicant holds a statutory licence under the relevant

legislation permitting it. subject to conditions. to process

and export meat from Australia.

The applicant alleges that since 10 May 1985. its abattoir has been the subject of a secondary boycott in the

form of a picket organized by the first respondent, The

Australasian Meat Industry Employees Union ("AMIEU"), an

organization of employees registered under the Conciliation

and Arbitratlon Act, 1904. It further alleges that the

second, third, fourth and fifth respondents. who are

officers of AMIEU. are participating in the picket. The

second respondent, Mr. Jack O'Toole, is the federal

secretary of AMIEU. The third respondent, Mr. Trevor

3urplice. is an organiser for AMIEU based in the Northern

Terrltorg. The fourth respondent, Mr. Dick Annear. 1 s the

federal presldent of AMIEU and the secretary of its

Queensland branch. The fifth respondent, Mr. Pat Rouchhan,

1s a natlonal organlzer for AMIEU.

3.

The respondent, the Meat Inspectors Association applicant further claims that he sixth

(“MIA”). another

reglstered organization of employees, is participating in

the boycott. The seventh respondent. Mr. Gordon McColl, is

the general secretary of MIA. Mr. Alex Thompson, the eighth

respondent, is its assistant general secretary. The

applicant contends that the seventh and eighth respondents

were also involved in the boycott.

In its operations, which are confined to the dry season (from about the middle of April until about the

middle of	November), the applicant usually employs Some	38
workers.	The applicant has carried on its business since

1973 and in the period prior to 1984 about 25 of the

applicant‘s staff were members of AMIEU. Their present

membership status is a contentious matter to be dealt with

later but, according to Mr. John David Fendarvis. the

applicant’s managing director, the members of AMIEU employed

by the applicant were expelled from their union because of

their unwillingness to loin in an industrial ban then placed

upon the applicant by AMImT. The present dispute has a

conslderable history to which reference should be made.

In June 1984. AMIEU set up a plcket line at the

entrance of the applicant‘s premises. Because of the

plcket, members of the MIA refused to enter the premises to

perform their inspection duties and as a result. production

at the applicant's facility then ceased. As a consequence

of this activity, orders under s.45D of the Act were sought

and obtained from this Court (Forster, J.) in July 1984.

Before approaching the Court, Mr. Fendarvis had explored

with Mr. O'Toole the possibility of resolution of the

matter. Upon enquiring what the applicant could do to

resolve the situation. Mr. Pendarvls was Informed that the

applicant must "accept the tally system as prescribed in the

Queensland Meat Industry Award". Mr. Pendarvis responded

that the applicant's plant was not physlcally suited to that

sward and enquired as to any alternatives which might be

available. Mr. O'Toole's reply was that if the applicant

"can't accept the Queensland Meat Industry Award then	(it.)
won't be allowed to open".

Some time after the making of orders by Forster, J.

on 19 July 1984, the picket line was disbanded and the

appllcant's operations resumed without interruption until

the end of the season although an Industrial dispute, In

particular, a claim by AMIEU that the Queensland award apply

in the Territory, was still unresolved. In September 1984,

Bench Commlssion heard an application of the Conciliation and Arbitration

the Full

by AMIEU for an award t o

cover employees submissions in the Northern Territory. In its

to the Commission. AMIEU opposed the system

adopted by the applicant and other: in the Territory f o r many years whereby employees were remunerated according to

r

5.

productivity. According to Mr. Fendarvis, at an adjournment

of the Commission hearing, Mr. Annear made his intentions

clear so far as	the appllcant was concerned. by shouting at
Mr. Pendarvis:

"You ... may be confident now but by next

year you will all be out of ... business

... You have had it your way in the past

but we are going to close you down."

On 5 September 1984. the Full Bench of the

Commission. having said that it was not satisfied that the present Contract system really gave employees proper award coverage and, therefore, acontract system would be

permltted but only insofar as payment for actual work done

was concerned. indicated that Mr. Commissloner McKenzie

vould be available to discuss with the parties the details

of the award provlsions which should be made; and that In

the event of disagreement, the Commlssloner was authorised

to determlne appropriate award provislons. The Commissioner

met with the partles and, in the light of thelr inablllty to

reach agreement, on 29 Aprll 1985 made an award based

prlmarily on the provlslons of Part I of the Federal Meat

Industry Award 1981.

As indicated by the Full Bench. a provision

enabling t h e use, on certain conditions, of systems of

payment by results was included (~1.33). Under that

G.

provision, such a system shall enable a weekly employee to

earn no less for the work actually performed than the

remuneration that employee is entitled to receive under the

award plus 20% (cl.33la)[i)). The terms of any such system

shall be established by negotiation and agreement between

the employer and the majority of employees concerned or

their nominated representatives tc1.33(c)). The award 15 to

operate from 2 May 1985 for a period of 12 months.

Shortly after the making of the award, the

applicant negotiated a “payment of results” system with its

employees In accordance with c1.33 thereof. Messrs. Tye, Doyle and Scofield represented thelr fellow employees for this purpose. On 6 May, an agreement was tcached in accordance with c1.33 for a “payment by results‘’ scheme

based on the number of cartons produced provided that the

minimum rate of pay would not be le55 than the weekly rate

of pay prescribed by c1.7 of the award plus 20 per centum;

provision was also made for holiday and sick pay

entitlements. The agreement was reduced to writing and

executed by each employee on 6 May or shortly thereafter.

At about this time. Mr. Surplice informed Mr.

Fendarvis, in th? contest of a discusJion concerning the

award. in particular ~ 1 . 2 3 . that AMIEU had purported t o

change its rules so that only AMIEU could negotiate 311

behalf of employees. Upon Mr. Fendsvls’ querying whether

I

AMIEU would reinstate the applicant's employees who had

apparently been expelled in 1984, Mr. Surplice said that

this was a matter for the national executive of the Union.

(On other occasions. Mr. Surplice took a different line with

Mr. Pendarvis. questioning whether these employees had been

validly expelled at all since, so far as the evidence goes,

no charges had been laid against them for this purpose. Mr.

Roughan was likewise ambivalent on the point.)

On 9 May 1985, the applicant commenced its

operations for the 1985 season. On 10 May, the picket vas

established and remains in force. The identity of those

maintaining the picket line is arguably a matter of some

signlficance t o which I will return later. It is sufficient

f o r present purposes to note that it has consisted of a

I

fluctuating body of persons, all officers or members of

I .

AMIEU but, with one posslble exception, Mr. Liddy (whose

posltlon calls for special consideratlon in the context of

Mr. Roughan's evidence, to be dealt with later), no employee

of the applicant has participated in the boycott which has

shut down the applicant's operations for the past month.

According to Mr. Fendarvis, on 10 May Mr. Roughan

explained to hlm that the picket had been imposed because

the employees, rather than AMIEU on their behalf, had

neqotlated thelr agreements. Mr. Roughan informed Mr.

F'endarvls that AMIEU aimed to have the Western Australian

S.

tally system Territory. On introduced into every abattoir in the

I

1 2 May, a similar discussion took place

between Mr. Pendarvis and Messrs. Roughan and Surplice. It

was made clear that the picket would remain until an

agreement was reached between the applicant and AMIEU.

At this time. with the applicant's permission.

Messrs. Roughan and Surplice addressed meetings of its

employees at the abattoir. According to Mr. Pendarvis, on

each such occasion, the meeting conveyed a negative response

to Messrs. Roughan and Surplice.

With the exception of his account of the role

played in this dispute by Mr. Liddy, an important matter to

be dealt with later, Mr. Pendarvis was not seriously

challenged in cross-examination on his version of the events

surrounding the imposition of the boycott. Furthermore, Mr.

Pendarvis' version was at least substantially corroborated

by a number of witnesses who gave evidence on affidavit but

vere not cross-examined by the respondents. It will suffice

to outline the evidence of Mr. Stanley Colin Doyle, one of

the negotiators of the agreements recently entered into. He

has been employed by the applicant as a.meatworker for the

past four years and claims to have been a member of AMMIEU

during that period. He recited the earlier history of the

matter. commencing in July 1584 vhen Mr. Surplice &dressed

5 meeting of meatworkers at Mudglnberrl urging then1 to

1

9.

strike. When dissent to that coursc was indicated by so11tc

of those present, Mr. Surplice responded that if they did

not strike. the union would picket the abattoir and thus

prevent it from operating. According to Mr. Doyle, Mr.

Surplice addressed another meeting of the applicant's

employees in September 1984. Mr. Doyle then reported that

in the context of the application for award then pending in

the Commission. the union had "lifted its bans" and the

applicant had "lifted" its injunction. In response to a

query, Mr. Surplice asserted that the applicant's employees

had not been expelled or suspended from mebership of the

union.

Mr. Doyle said that on 6 May 1985, Mr. Surplice

went to Mudginberri and spoke with some of the men.

including himself. Mr. Surplice referred to c1.33 of the

new award and said that any agreement made under that

provision had to be negotiated by the unlon. He then

suggested that some of the workers, including Mr. Doyle,

vere not allowed to be membersof the union because they were

contractors. Mr. Doyle replied that they were now employees

and not contractors. Mr. Surplice's response was that Mr.

Ijojrle had been expelled from the union in 1984. Mr. Ijoyle

then pomted out that shortly after 6 May 1985, Messrs.

Schofleld. Tye and himself, as leading hands representing a

number of workers at Mudginberri, negotiated "payment by

results" agreements with Mr. Pendarvls.

I	.
I	.

10.

On 10 May, after the picket line had been set up,

Mr. Roughan and two other AMIEU representatives addressed

the meatworkers at Mudginberri. Mr. Roughan said that he

had been sent by Mr. O'Toole "to see that this shed is under

a tally system"; that there was going to be an agreement

that followed the tally system; that any agreement which had

already been negotiated should not have been negotiated -

only the union had the right to negotiate the agreement.

According to Mr. Doyle, Mr. Roughan addressed a further

meeting Of Mudginberri meatworkers on 11 May saying that

"this shed will not operate under any system but a tally

system". On 12 May, Messrs. Roughan and Surplice again met

with the meatworkers and urged them to stop working for the

applicant as their agreements were not acceptable to AMIEU '

but, according to Mr. Doyle, the workers indicated that they

were happy wlth the existing arrangements and wanted to

resume work.

Mr. Doyle's evidence was corroborated by evidence

!

glven by Mr. Ralph Charles Tye and by Mr. Syd James

Scof ield. They were not cross-examined. Furthermore,

another 1'3 meatworkers crave evldence by affidavit to the

effect that each of them desired to commence work with the

applicant	pursuant to the agreements negotiated on their
behalf bjr	kssrs. Tye, l joylr and Scofield. None of these

witnesses was cross-examlned.

l

11.

Mr. Roughan gave evidence of discussions he had

with Mr. Liddy after the picket had been established.

According to Mr. Pendarvis. Mr. Liddy worked in the abattoir

on 9 May and also on 13 May when animals already yarded were

slaughtered to prevent their further suffering. According

to Mr. Roughan, Mr. Liddy approached him on the picket line

in the evening of 11 May under the following circumstances:

"THE WITNESS : Mr Liddy asked f o r

permission to come on the picket line for

a few beers and to talk to us about what

had taken place, both him and his friend.

They indicated to me that they were

unhappy with events as they transpired on conversation with the workers, that they were not really aware up until I had

discussed wlth it hem what our

proposition was and what it really meant,

and that being the case they had no

intention of going back and working at

Mudginberri Station until such time as the dispute had been settled.

Did you say anything to Mr Liddy?---I

indicated to Mr Liddy that s far as I was

concerned, he was welcome on the picket

l	line but we would like to see the workers at Mudglnberrl Station come and see us on the picket l m e because they were some of
the people who were going to benefit by
what we were trying to do. I asked M r
Liddy what his intentions were and he
I	indicated that he wanted to stay on the picket line and go back to Mudginberrl
station the next day, when I had arranaed
another meeting, and then take up his gear
and go out."

The first, second, third, fourth and fifth

respondents dld not seek to argue that the applicant had

falled to make out a prima facle case under sV45D(1) or

12.

(1A). Rather, they concentrated their submissions on the

defence provided by s.45D(3) as follows:

“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-

...

(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 offlcers

of such an organizatlon, or

both such an organization

or organizations and such

an officer or officers: and

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

the dominant purpose for whlch the

conduct 1s engaged in is

substantially related to-

(iii) the remuneration,

conditions of employment,

hours of work or worklng

conditions of the employee,

I or of any of the employees.

to	referred	in
sub-paragraph (li);

...

On behalf of AMIEU it 1 s submitted that a defence

under s.d5C(3) (b) has been made out because the evidence. In

particular Mr. Rouqhan s testimony as to the stance adopted

by Mr. Liddy. establishes that this is a case of the union

and certain of its officers having, in the language of the

statute. engaged in conduct in concert with an employee or

employees of the applicant. the dominant purpose of which

conduct was conditions of employment substantially related to the remuneration,

or working conditions of the

employee or employees concerned.

It is settled law that in any application for

interim relief, subject to the question of the balance of

convenience (which in this case is all in favour of the

applicant (see Epitoma Pty. Limited v. Australasian Meat

i

Industry Employees' Union (1984) 54 A.L.R. 730 at p.740)).

the test is not whether any defence has or has not been made

out but whether, in that connection and generally, there is

a "zerious question to be tried" (see Epitoma at p.734;

State of Oueensland v. Australian Telecommunications

Commission, unreported, 2 9 March 1985, High Court of

Australia, Gibbs. C.J. at p . 2 ) .

In my oplnlon, acknowledging that the

interlocutory stage it 1 s undesirable that any attempt be

made to resolve difficult questlons of law or f mi-xed fact

and law. it is apparent that a number of "serious questions"

arise In any conslderation of the defence now sought to be

raised.

14.

In the first place, a difficult question arises as

t o the meaning and application here of the exclusion in

parenthesis at the commencement of s.45(3) (b - "(and not in

concert with any other perso'n)". The evidence shows that

the picket line is usually maintained by about five persons

some of whom. such as Messrs. Roughan and Surplice are

officers Of AMIEU. but that. apart from Mr. Liddy, others

are merely members of that union and not employees of the

applicant.	A sign at the line reads:
"A.C.T.U. endorsed official AMIEU plcket

l m e . "

Mr. Liddy was not called to give evidence and the

applicant makes a serious challenge to the role sought to be

attributed to Mr. Liddy by Mr. Roughan's evidence. It is

sufficient for me to sag that on the evidence as it stands.

the real motives of Mr. Liddy must be regarded as an open

question. I am certainly not persuaded by Mr. Roughan's

evldence that the dominant purpose for which Mr. Llddy

joined in the picket was substantially related to the

remuneration. conditions of employment or any of the other

matters speclfied in ~.45D(3)(b)(iii). The assessment of

that purpose 1s properly a matter for the trial judge at the

final hearlnq. For this reason alone. a serious question

arises as to the availability	of	any	defence	under
s.45D(S)(b).

I

15.

The applicant raises a further. related reason why the gateway provided by s.45D(3)(b) is not available. It

says that apart altogether from the parenthetical exclusion

already mentioned. the terms of s.45D(3)(b)(i) themselves

establish. on their true construction. that the defence is

not open where the boycott is Imposed by members of a union

who are not its officers and who are not employed on the

site the subject of a ban. If read literally, the provision

is capable of that mcaning. It is submitted on behalf of

AMIEU that he reference. in sW45D(3)(b)(i) to the

organization must, by implication at least. include its

members. On the other hand. a specific reference 1s made in

the provision to officers of the organization and this

reference may convey the suggestion that members are to be

excluded. Again, it is sufficient for present purposes to

say that both points of view are arguable without

endeavouring to resolve the question.

Finally, the applicant also contends that the

,respondents have in any event failed to establish the

requisite dominant purpose specified in s.45D(3)(b)(iii).

In essence, it says that the primary objective of AMIEU is

to pursue a broader Industrial qoal across the Territory as

a xhole (see Ascot Cartaae Contractors Pt-?. Limited V.

Transport Workers Union of Australia ( 1 9 7 8 ) 32 F.L.R. 148

per Smlthers. J. at p.153). Again, it will sufflce f o r the

16.

purposes of this application if I say that. in my opinion, a

serious question arises in this connection.

It follows that, in my view. the applicant has

~ h o m that a serious question arises for trial on its claim

for final relief. Since no counterveiling prejudice to the

respondents is suggested if the picket is lifted, the

balance of convenience must favour the grant of an interim injunction against AMIEU and its respondent officers. I propose to grant that relief.

Although the respondents did not suggest that it

provided any answer. whether absolute or discretionary to

the applicant's present claim, it should be mentioned that '

after the Institution of these proceedings, AMIEU attempted

to invoke the jurisdiction of the Commission, presumably

I

wlth a view to calllng in ald s.8OAA of the Act. On 3 June.

Mr. Deputy President Keogh called a conference for this

purpose whlch interested parties. Mr. Deputy President Keoqh recommended was attended by representatlves of the

that AMIEU "lift" their plcket, but Mr. O'Toole then said

that the picket would be maintained. It follows that no

case has been made out pursuant to s.8OAA(1) for the stay of

any lnlunctlon whhlzh mlght lie.

I

17.

I turn next to the claim for injunctive relief as against the sixth, seventh and eighth respondents. It is

true, as the applicant submits, that MIA. its officers and

members have supported the picket at least passively by

refusing to cross the picket line. It is hardly necessary

to say that, unless the members of MIA perform their

functions of inspectlon, the abattoir cannot operate. On

the other hand. it is plain enouqh from the evidence of Mr.

McColl that if AMIEU were to withdraw the picket, for

whatever reason, MIA inspectors wlll resume their duties at

the abattoir. In the circumstances. although I would not

grant lnterlm appropriate to refuse the application outright. Rather, relief at this stage, it would not be

the

appropriate course is to stand the applicant's applicatlon

as against those respondents over qenerslly with liberty to

restore should the need arise (cf. The State of Queensland

v. Australian Telecommunications Commission, supra, t p.4).

I make the following orders:

1. I note hat the applicant glves the usual

undertakmg as to damages.

-l Order that until the final determinatlon of this

-.

proceedmq or further order. whichever should first occur. the first. second, thlrd, fourth and fifth wspondents and each of them be restralned by themselves, their servants and

agents from imposing, maintaining, giving effect to or

enforcing any ban on the provision of goods or services to

the applicant at the Mudginberri Abattoirs ("the Abattoirs")

or from setting up or maintaining any picket line a t OL- in

the vicinity of the Abattoirs where any such ban or picket

line has the purpose and would have or be likely to have the

effect of preventing or hinderins the ordinary day-to-day

activities and operations of the Abattoirs' business

including:

(a) the carrying out of works of mainten lance and

repair at the Abattoirs:

(b) the delivery of any livestock for slaughter and

processing;

(C) the access to and egress from the Abattoirs of any

person or persons providing goods or servlces to

the Abattoirs or otherwise involved or engaged in

its ordinary day-to-day activities in the conduct

of its business as an export meat processin? works

and an abattoirs licensed to process and export

meat from Australia;

(d) the egress from the Abattoirs of any product of the Abattoirs:

13.

(e)	the sale of any processed products or by-products of the Abattoirs.
3 .	Reserve liberty to any of the respondents enjoined

by order 2 to apply on such notice as	a judge shall allow to
discharge or vary that order.

4. Order that the final hearing of the proceeding be

expedited.

5. Order that, as aqamst the respondents enjoined by

order 2. the applicant's costs of this interlocutory

application be applicant's costs in the proceeding.

G. Order that the application for interlocutory relief

ac against the sixth, seventh and eighth respondents be

stood over generally with all costs in this connection

reserved and liberty reserved to the applicant to restore

this appllcation on such notlce as a ludge shall allow.

l

FEDERAL COURT OF AUSTRALIA

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