Mullarkey, A v Construction Engineering Australia Pty Ltd

In the Federal Court of Australia, five consolidated cases (G225, G226, G227, G228, and G229 of 1986) were heard, each involving individual applicants (Mullarkey, Jencar, McNamara, Campbell, and Siddons) seeking interlocutory relief against their employers and the Building Workers' Industrial Union (BWIU) and/or the Master Builders' Association. The applicants alleged that their employers had violated Section 45E(1) of the Trade Practices Act 1974 by making an arrangement with the BWIU that hindered their ability to continue supplying services to their employers unless they joined the BWIU. The Court was required to decide whether the applicants' claims were valid under the Trade Practices Act 1974 and whether the applicants were entitled to interlocutory relief.

The Court found that the applicants' claims were not valid under the Trade Practices Act 1974. The Court held that the services alleged by the applicants were actually the performance of work under a contract of service, which was expressly excluded from the definition of "services" in the Act. Furthermore, the Court held that the alleged arrangement between the employers and the BWIU was directed towards the performance of work by the non-member applicants and not the alleged services set out in the particulars filed under paragraph 12 (or 7). The Court concluded that the interlocutory mandatory injunction sought by each applicant should be refused, as the applicants had not demonstrated a high degree of assurance that they would succeed in their claims.

The Court rejected the applications for interlocutory relief in each case and ordered that the applicants pay the respective respondents' costs of and incidental to each respective proceeding. The Court found that the applicants' claims did not meet the necessary threshold for granting interlocutory relief, and there was a real possibility that industrial unrest at various building sites would follow if the Court were to make the orders as requested.