Plumbers and Gasfitters' Employees Union of Australia v John Holland Constructions Pty Limited

[1988] HCATrans 95

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S32 of 1988

B e t w e e n -

THE PLUMBERS AND GASFITTERS'

EMPLOYEES UNION OF AUSTRALIA

Applicant

and

JOHN HOLLAND CONSTRUCTIONS PTY

LIMITED,BARCLAY BROS PTY LIMITED,

JENNINGS CONSTRUCTIONS LIMITED,

SABEMO PTY LIMITED, LEIGHTON
CONTRACTORS PTY LIMITED, CONCRETE
CONSTRUCTIONS PTY LIMITED,

CONCRETE CONSTRUCTIONS (NSW) PTY

LIMITED, WHITE INDUSTRIES LIMITED,

CIVIL & CIVIC PTY LIMITED

Respondents

Application for special leave to

appeal

Plumbers

MASON CJ
BRENNAN J

DEANE J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 13 MAY 1988, AT 12.12 PM

Copyright in the High Court of Australia

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MR R.C. KENZIE, QC:  May it please Your Honours, in this matter

I appear with my learned friend, MR M. MOORE, for the

,applicant. (instructed by R.L.Whyburn & Associates)

MR J.L. TREW, QC: If Your Honours please, I appear with my

learned friend, MR D. COWDROY, for the respondents.

(instructed by Westgarth Baldick)

MASON CJ:	Yes, Mr Kenzie.
MR KENZIE:	Your Honours, this matter concerns the sufficiency of certain orders which follow the text which appears
at page 66 of the application book to sustain
convictions of contempt and, Your Honours, the relevant orders - although there was more than one order made - in the cases which give rise to the present application
was the order numbered 1 and may I say to Your Honours
at the outset that although this case inevitably
involves questions of the construction of this order,
the position is clear that this is consistently the
order that is made in proceedings under section 45D
of the TRADE PRACTICES ACT which is an important
provision in frequent use, and I will refer Your Honours
in a moment to a passage from His Honour Mr Justice Wilcox's
judgment, the judgment at first instance, which refers to the form of the order and its frequency of use.

Your Honours, the order was directed to the first

respondent, the present applicant

its servants and agents, and the second respondent -

the second respondent being in each different case a

particular officer of the applicant, that officer not

in any case being subsequently subjected to proceedings

for contempt - that they -

be restrained, pending further order of the

Court, from maintaining, giving effect to

or enforcing any ban hitherto imposed on

the provision of goods or services -

and then there is identified a particular subcontractor

and a particular building site in or about Sydney or
the irmnediate surrounding area. So that the orders in

each case were orders referring to what were described

as the maintenance or enforcement of a ban, which was

described only by reference to the particular site and

particular subcontractors or contractors in question.

MASON CJ:	Any ban?
MR KENZIE:	Any ban, and I will have to come in due course,

Your Honour, to what we have to say about the

sufficiency of that description, because we say that that word covers a multiplicity of situations and is

really a word of general application, but no specificity.

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Your Honours, the proceedings involve the

principle discussed by this Court in AUSTRALIAN

CONSOLIDATED PRESS LTD V MORGAN, (1965) 112 CLR 483,

and I will not read at length from it, Your Honours,

but it is important that I point out that in this
case Mr Justice Windeyer and Mr Justice Owen both took
the view that a defendant should not be committed for

contempt on the ground that on one of two possible

constructions of an undertaking given by that defendant

to the court he has broken his undertaking. And that,

on our reading of the judgment appeared to be the case,

regardless of whether it was ultimately possible to give

a certain meaning to the undertaking.

The Chief Justice in that case, at page 492 of the report, did not share that view. The passage in

Mr Justice Windeyer's judgment is at page 506 and the passage in Mr Justice Owen's judgment is at pages 515

and 516 and, Your Honours, it is necessary only to

go to Mr Justice Owen's judgment which was agreed in

by Mr Justice Windeyer, at the bottom of page 515

where, in the context of an undertaking, His Honour said:

"I cannot say I think the undertakings

contained in the order were clearly drawn

and I cannot say I regard the questions of

construction involved in them as entirely
easy questions, but in my judgment, a

defendant cannot be committed for contempt

on the ground that upon one of two possible

constructions of an undertaking being given

he has broken his undertaking. For the

purpose of relief of this character I think

the undertaking must be clear and the breach

must be clear beyond all question".

That principle was referred to by the Full Court at

page 75 of the application book, the bottom of the

page about line 22, and the Court said that:

It was submitted that order 1 is framed in

such uncertain terms that it is incapable

of giving rise to a finding of contempt.

Reference to MORGAN.

We do not think that order 1 is uncertain.

It may be conceded that it does not indicate

to the Union what it must do to effect
compliance with it. But, as Wilcox J. pointed
out, there is a fundamental difference between

an order which is uncertain and an order

which, being certain in its meaning, leaves

to the addressee a choice as to the manner

of compliance:

Reference to an earlier English authority:

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Order 1 specified with precision the

conduct which was enjoined, i.e. the
maintenance, giving effect to and

enforcing of any ban.

And the second point to which we will come shortly

relates to the question of whether, assuming that an

order cast in negative terms identifies with
precision or identifies satisfactorily conduct which
is proscribed, that inevitably carries with it, as

the Full Court must have assumed, the consequence

that that is sufficient to give rise to obligations

of a mandatory nature on the part of the defendant,
regardless of whether it is reasonably clear or must
be reasonably clear to the defendant just what those

obligations either singly or collectively might be.

MASON CJ: Are you saying that order 1 in this case admitted of

two different constructions, alternative constructions?

MR KENZIE:	Yes, Your Honour.
MASON CJ:	And you will tell us what they are?
MR KENZIE:	I will, Your Honour. Before I come to that, if I may refer the Court to the application book, a reference
to Mr Justice Wilcox's judgment, application book page 25,
where His Honour was rejecting a submission that the
orders were vague and uncertain and he points out that
the orders 1 and 2 "follow a form which has long been used". He refers to a number of cases and it is fair
to say, Your Honours, that there was some debate before the Full Court as to whether His Honour was correct in
saying that, but there is no doubt at all that
regardless of what might have been the case in a couple of those earlier cases referred to, that in EPITOMA, the case referred to at about line 14, the form of the order was expressly followed by Mr Justice Wilcox
in this case. :.

EPITOMA, although we have not given Your Honours

a separate reference to it, involved a discussion by

the Full Court of the Federal Court as to the

appropriate form of order in section 45D cases. There

was discussion in that case about whether it was

appropriate to slavishly follow the form of the section or whether it was appropriate to attempt to describe in other terms what conduct was to be proscribed.

- DEANE J: But the order cannot be bad for uncertainty; the only

question must be whether the conduct in which your

client is proved to have engaged came or did not come

within the scope of the order. I mean you do not get

anywhere by saying, "Oh look, this order would be uncertain

in some circumstances". What you must show is that it

is ambiguous about whether your client's conduct

infringed it or not.

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MR KENZIE:  Yes, Your Honour. In our submission, that comes

back to the question of the meaning of "bans" and

the like and raises the other matter that I have to

to go.

Your Honours, in relation to page 25, it is

sufficient if I refer Your Honours to what His Honour

had to say about the MUDGINBERRI case. The order in

the MUDGINBERRI case was, of course, before this Court.
It followed the form of the order in this case and the

EPITOMA case with the proviso that the order in the

MUDGINBERRI case went further and specifically referred to

a picket line which had been imposed by the union. And

so the questions that were raised in the present case

did not arise in the MUDGINBERRI case, although on a

different set of facts they could have arisen.

Your Honours, it was an essential part of the

reasoning of the Full Court in support of its
construction of the orders, and its conclusion that the
orders specified with precision the conduct prescribed,

that no distinction was to be drawn between the actions

of the applicant and the actions of its member which were
taken otherwise than at the direction of the applicant

and the other thing we have to say about the application

is that it raises, and is an appropriate vehicle to

raise, the important question of the liability of a
registered organization of employees for the actions of

its individual members in circumstances where those

actions were not taken at the direction or the

instruction of the registered organization.

In addition to that, we say that the case raises

important questions in relation to the creation by

injunctive orders expressed in prohibitory terms of

obligations to take affirmative action.	I have
mentioned that.	Now, Your Honours, the orders in

question referred to bans imposed on specific building

sites and I will come, in a moment, to the expression

"bans". Orders were made against the Union and they

were not made against any individual who had been

working on the site. I mentioned that the orders were

made against the Union but not against members of the

Union other than officers and the position of the

officers is presently irrelevant.

Thirdly, the orders were concededly not directed

to bringing about any action on the part of the

individuals who were not before the Court. In other

words, it was agreed on all hands that the effect of

the orders could not have been to bring about a

resumption of work or anything like it.

BRENNAN J:	I do not follow that, Mr Kenzie.
MR KENZIE:	Yes, Your Honour.  The orders in the proceedings

were sought against the federal Union. They were also

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sought against the officers but that can be left aside.

There were no orders sought against any individual who was

involved in conduct - - -

BRENNAN J:	I see, no direction to return to work or - - -
MR KENZIE:	No.  The orders, as I will show Your Honours in a

moment, were made under section 45D and on the basis

that the Union, the first person, was engaged in
concert with the second person or persons, namely
individuals on sites, in such a way as to bring into
operation section 45D. But no where was it said or

suggested that the action of the individuals on the

sites was action of the Union as such. It was found

that it might not have happened or would not have

happened had not the Union taken some other general

action and had a general policy.

Your Honours, if I might take Your Honours very

briefly to the decision of His Honour Mr Justice Wilcox

reported in 71 ALR 501 to show Your Honours something

of the circumstances in which the orders were made and

this, I can assure Your Honours, does bear upon questions

of construction and what I have to say. At page 522 -

and this was the interlocutory order proceeding,

His Honour sets out, at about line 40, section 45D(l):

a person shall not, in concert with a second

person, engage in conduct that hinders or

prevents the supply of goods or services by

a third person to a fourth person -

et cetera. And His Honour, on page 523, discusses the

basis upon which that subsection might be applied to

the instant situation and, at line 32, His Honour said:

It seems to me that this last analysis

is the most appropriate application

and the last analysis appears on line 26: A further alternative is to regard

the union, in each case, as the first

person and the plumbing employees on a
particular job ..... as the second person.

Of course, the union, being a corporate

body, must work through agents, but it

would seem not to be an objection to a claim under s 45D(l) that other people

were also party to the concert -

and at line 45 His Honour said:

I am of the opinion that there is evidence to support the application to

this case of the opening words of the

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sub-section - in either of their alternative
formulations - but only upon the understanding
that the relevant "second person" was the body

of employees, or a relevant part of them, upon

a particular site.

In saying this, I bear in mind that the

notion of engaging in conduct "in concert"

involves "knowing conduct, -

et cetera, and at about line 5 on the following page:

It is true, as counsel for the respondents

submit, that the actual bans were the

product of decisions taken by members of

the PGEU upon each site; but it is
impossible to ignore the fact that those
decisions were the direct result of the

bans policy adopted by the PGEU Federal

Executive and implemented by its officials.

And what that meant, in general terms, was that the

organization had formulated a policy but had not

decided or directed that anything should happen on any

particular site or sites. What had happened was that individuals, not directed or instructed by the Union,

took certain decisions which differed in each case, on

sites. His Honour said that it was fair to assume that

that would not have happened if there had not been a
policy but he did not say that the action was the action
of the Union.

Now, the final thing we have to say about the orders, of course, Your Honours, is that the orders

were cast in negative or prohibitory terms and although

there was one mandatory order made, it was subsequently
the subject of an application for a stay and was not
operative or relevant at the time of the conduct in

question, and it is in - - -

BRENNAN J:  I will just interrupt you to say that I notice that

in the judgment of the Full Court, page 72, it is said

that: 

There was compelling evidence in the

injunction proceedings that the Union

had imposed bans - - -

MR KENZIE:  Yes, Your Honour, that is so and the evidence that

the court was referring to was taken from His Honour

Mr Justice Wilcox's judgment- - -

MASON CJ: Presumably that is a reference in part, at any rate,

to the sentence in Mr Justice Wilcox's judgment that

commences on page 523 in the long paragraph in the

second half of the page , the second sentence:

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The evidence establishes a prima facie

case that the union, through its Federal Executive, decided to impose a series of

bans and limitations which would have the

effect of hindering or preventing the

supply of services by plumbing subcontractors

to their head contractors.

}1R. KENZIE:  Yes, Your Honour. There was an earlier reference

in the evidence to an executive resolution which referred

to bans of the Union, which I think was what the Full

Court was referring to. So the point about it was, of

course, Your Honours, that although the executive of the Union had a policy in relation to those matters, the executive - the Union itself had not imposed any decision - made any decision in relation to what was to

happen on any site or sites.

The Union had a policy that a log of claims should

be pursued and the Union's policy was that what was

described as "bans" in the resolution would be

appropriate. But it did not direct that they be imposed

on any site or sites. What thereafter happened was that

individual members, uninstructed, imposed particular bans

on particular sites.

MASON CJ:  But is that entirely correct, because the sentence

after the one that I read to you on page 523 says:

It also establishes a prima facie case that certain union officials, Mr Batchelor,

Mr Somerville, Mr Robson and Mr Campbell, took

active steps towards the imposition of the

ban on particular sites.

}1R. KENZIE:  Yes, Your Honour. That meant, and meant no more

than this, that the individuals conununicated the policy

to the members and no where was it found that the

action of those officers amounted to the imposition of

bans on sites. What that amounted to was a finding

without the officials going down to the sites, the that without the underlying policy of the Union, and	individuals may not have decided to take the steps that
they did. But no where was it found that the Union
took those steps.

BRENNAN J: Is this the nature of it? The Union says, "Let

there be bans" and the individual members say, "There

shall be bans on this site".

}1R. KENZIE:  Yes, Your Honour. The Union says that there shall

be a policy in relation to the log of claims and that

policy will involve the imposition of bans but makes

no decision in relation to any site. Neither does it

instruct or direct its members as to what to do. The

members then act .

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BRENNAN J: What is the meaning of "policy"?
MR KENZIE:	Your Honour, the policy arrounted, with respect, to a decision

of the Union to pursue its log of claims by certain

means but not by specific means that were the subject

of the order. In other words, it was completely

consistent with the policy of the Union that no

interruption to work take place on any site or sites.

That was a decision taken by parties not before the

Court.

DEANE J:  But that is not what the judgment says. What the

judgment says is the Union decided bans are imposed.

MR KENZIE:  Yes, the Union decided that the policy ought to be achieved by means of - - -

DEANE J: It does not say anything about policy; it says the

Union decided to impose a series of bans. As.a

matter of language that means, we, the Union, decide

that bans are imposed.

MR KENZIE: Well, decide to impose, yes, Your Honour, but it did

not go further, with respect. It did not go further

and decide to impose or impose bans on any site or sites.

In other words, what happened at any individual site

was not done at the direction or compulsion of the Union.

DEANE J: What, it left it to its members.

MR KENZIE:  Yes, Your Honour. It was a matter of decision by

the members.

MASON CJ:  But does that not seriously undercut the effect of

what Mr Justice Wilcox said in the relevant paragraph

on page 523? He says that they -

took active steps towards the imposition of
the ban on particular sites. But neither the

union nor its officials were in a position, by

themselves, to effect the supply of services
upon any site.	They needed to obtain the

cooperation of the PGEU members on any site which was to be affected ..... In the case of all sites ..... they did obtain that cooperation.

So it is not a matter of the Union standing aside; it

is a matter of the Union as it were passing a resolution,

sending its officials out and endeavouring to procure

the imposition of a ban.

MR KENZIE: Well, endeavouring to persuade the members to

decide to place restrictions of work on the site.

MASON CJ:  "Taking active steps" in ensuring that the ban was

imposed on the particular site.

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MR KENZIE: Well, Your Honour, the highest it could be put was

that steps were taken to attemµ:to persuade members

to that effect.

MASON CJ:	The judge said "active steps", "took active steps".
MR KENZIE:	Yes, Your Honour, they were active. There was

never any doubt about all of this. What there was not

was a finding that the steps that were taken, which

were described subsequently in the judgment as the

"bans",were bans of the Union as opposed to the bans

of the men, and that is the difficulty which was faced

and, indeed, it was a difficulty which was ultimately

recognized by the Full Court, Your Honours, because

their attention was of course directed to this and the

Full Court then decided that it did not matter, and

it did not matter because the distinction between the

action of the Union and actions of its members,
uninstructed by the Union, was illusory and i.rrm:tterial and
in our respectful submission, that is a conclusion

which, on the authorities, is not maintainable.

BRENNAN J:  If the members had failed to impose a ban on a site,

having been approached by the Union officials in the
manner indicated at page 523, would the Union members

have been in breach of their Union obligations?

MR KENZIE: Definitely not, in our respectful submission. That

is the point. The Union did not instruct members at

any site to take any particular action. It was

consistent with the resolution that the members on a

site take no action.

BRENNAN J: But if all members took no action then the policy

would be frustrated.

MR KENZIE:  Your Honours, that may be so, but that would not mean

that members who elected on a site in a certain way

would thereupon be liable to disciplinary proceedings

within the Union. In our respectful submission, it

would have meant that the policy had failed.

would not have meant that any Union member was in But it

breach of the rules because of a failure to comply

with his duty to observe decisionsof the federal

executive. That is the distinction, with respect,

which has not been borne in mind. It is a fundamental

distinction; it is a distinction which separates this

case from cases such as MUDGINBERRI. In MUDGINBERRI

there was a picket line, the order in question referred to the picket line and there was no doubt that that was

a Union picket line. Union officials participated in

the picket line; the Union directed that that picket

line be put on.	None of that happened in the present
case.

That gave rise to a distinction which was not

illusory, but real, and the failure to preserve that

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distinction led the Full Court to the conclusion that

the orders were certain; there was no point in
distinguishing between bans of the Union and bans of
the men because, in truth, it was illusory and did

not matter.

And, Your Honours, the best illustration of that,

we would suggest, appears on pages 73 to 75. On page 73 -

it really starts on page 72 where the Court agrees

that:

in one sense, those bans -

on site -

may be regarded as different from and

independent of the bans imposed by the

Union.

That is the policy, as we would have it. That is at

page 72, line 26. Then the Court goes on:

In truth, the agreement of the unionists

to impose bans amounted to no more than an

adoption and implementation of the bans

already decided upon by the Union.

And that is the point we make.

The Rules of the Union obliged its members

to observe decisions of the Federal

Executive. No doubt there are cases where

a clear distinction can be drawn between

industrial action taken by a union and by

its members. The MUDGINBERRI case was

one such case. In that case the decision

of the union to impose a picket line was

oppsed by its members -

I interpolate so that whilst the union was responsible

those members who opposed it were not. The Court goes

on: 

However, in the present case where there

was unanimity of purpose between the

Union and its members, any distinction

between the bans imposed by the Union and

the bans imposed by its members tends to

become illusory and lacks industrial reality.

MASON CJ:  Can we identify precisely what it was that the

Union did, either by way of resolving upon a policy

or imposing a ban, whatever the appropriate terminology

may turn out to be.

MR KENZIE:  Yes, Your Honour, we can. One can do that by going

back to the judgment of Mr Justice Wilcox and it is

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set out in terms, Your Honours. On page 504 of the

report, 71 ALR, there is the heading "Institution of

the PGEU campaign", about line 27. There was a

resolution in relation to a log of claims that the

executive resolved:

"to embark on a national campaign in the

building and construction industry for

improvement to wages, conditions, hours

and other terms of employment". In

relation to the organisation of the

campaign the resolution included the

following:

There is reference to stop-work meetings, there is

reference to a log of claims, there is reference to
what are described as guerilla tactics. There are
references to the executive monitoring the campaign

and I think that is the entirety of that resolution.

Following action by the members or decisions taken

by the members there was a further resolution on

18 August 1986, at page 505 line 8, which was that:

The campaign be coordinated centrally and comrades Rutherford and Davis be authorised

to maintain a central record of the bans

imposed by the union

that is that passage that I was attempting to find

before, Your Honours -

throughout the course of the dispute.

That head office prepare material on developments in the campaign for distribution

to both the PGEU membership, other unions and
the general community .....

That special attention be given by the branches to building trade union and broad community

That the General Secretary is authorised to support .....	initiate negotiations on the union's log
of claims

et cetera, and I do not think I need to further with that.

Now, there was then reference to visits by officers

to sites and they appear on various pages; for

example, on page 511, line 19, reference to

Mr Batchelor to handing a log of claims and at line 26

he saw the representatives of each of the subcontractors:

He handed to each of them a copy of a sheet of paper -

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He told the representatives -

that the document was "a list of black bans

on the job" and that they had been imposed

in support of the log of claims.

He left a copy of this document at the site . The

evidence in relation to that site and other was that

thereafter, after the visits of the officials which

were concededly designed to have the Union's policy

imposed in a material way on the sites, the members

thereafter took decisions which differed in each

case, depending on what they wanted to do.

Your Honours, there are some other references but I do not think Your Honours will be assisted by

going to the individual cases. There were a number

of sites and a number of officers.

MASON CH:  There seems to be a step missing though, does there

not, because that meeting held on 18 August authorized

State branches to impose bans. Now, I just notice,

qui.ckly going through the judgment,,at the foot of

page 507 there is a reference to a resolution of the

executive and (B) refers to:

That bans imposed in support of the campaign be progressively extended, to

apply on Federal and State Government

projects.

MR KENZIE:  Yes, Your Honour. But, of course, none of those

projects were relevant to the proceedings here.

MASON CJ: All I am saying to you is the account we have so

far does not seem to be, on the face of it, a

sufficiently comprehensive account.

MR KENZIE:  Your Honour, the proceedings were interlocutory

proceedings and the material - there was voluminous

material before the court and subject to correction by

Mr Trew, I think I have directed Your Honours'

attention to that part of the evidence which involved

the federal Union. What there was not was anything

definitive in terms of a direction or instruction and
that is the reason, we respectfully suggest, that there

was not a finding that what happened on these sites was action of the Union. There was not evidence to

support that conclusion. The furthest it went was in

the passage that I originally directed Your Honour's

attention to, where the court said, "Without the

Union being there, having this policy, it is fair to say that individual work sites would not have been

affected." But the Union got the co-operation of the

people not before the court and in those circumstances

decisions were taken. It was those decisions, the

decisions not to do certain work, different work at

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different sites, which was to be unaffected by the

order of Mr Justice Wilcox, because he expressly said

that, "My order is not intended to put the men back

to work, they will have to make up their own minds

about that; my order is to go to the Union which is

before the court".

BRENNAN J:  The underlying fact is that the Union has a policy

which it expresses, which it communicates to its

members and which is carried to its members by its

officers and which can be implemented only if the

members accept the Union policy.

1:-'IR KENZIE:	Yes, but which does not have to be implemented.
-BRENNAN J:	And then the members do implement it on particular

sites.

1:-'IR KENZIE:  Yes, they implement it in different ways at

different time Rn~ some of them, presumably, do not

implement it, but in any event what Your Honour puts is correct.

BRENNAN J: So would it be right to describe the Union as the

instigator of the bans but not the imposer of the

bans, is that the proposition?

MR KENZIE: Certainly for the purposes of the present debate, I

would not cavil at that description. Notwithstanding

all of that, in our submission it was very clear that

everyone recognized that there was a bans policy of the

Union but that what had happened on individual sites

was that what were described loosely as bans had been

imposed by individual members as a result of their

own decision.

BRENNAN J:  Then we come back, do we not, to the proposition

which, I think, is at page 31 of the appeal book, that

is that the Union is the prop of the bans and the

question is whether it is bound to take the prop away.

1:-'IR KENZIE:  Yes, Your Honour, that is the nub of the decision,

in our respectful submission, and what the orders

amounted to, by reference to bans - and the meaning of

the word "bans" gives rise to different problems, of

course - but the order appeared to be saying this: the

Union having instigated the action which proximately

led to an interruption to the supply of goods or

services on particular sites is instructed not to maintain

or enforce what were described as bans which, as we

would put it, were bans and must be taken to be bans

of the men. Otherwise references to "prop" and the

like are meaningless. And in those circumstances, that

is all that is said and out of that is spelled an active

obligation on the part of the Union to take some step,

which is not identified,and to achieve some result
which, apart from the fact that it is not sending the

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men back to work, is not specified and, in our

respectful submission, even though it is conceivable that one could spell out of negatively framed orders

obligations to take affirmative action in clear cases, in this case you could not spell out any

obligation, quite apart from the difficulty that one
encounters in relation to what is meant by the word

"bans".

In addition to the matters that I have identified

so far, there is the problem of just what a ban is in

any event and Your Honours, although there was no

evidence of this, it is pretty clear that that

expression is capable of covering a multiplicity of

circumstances:  a decision not to do particular work,

decisions not to work with particular people or for

particular times or beyond particular duties, decisions

taken by unions, men on the job or the like. Now, in

those circumstances there were at least two problems in the way of the enforcement of this order and they are the substantial questions which we say were not

addressed and certainly not adequately addressed by

the Full Court.

In our submission, the fallacies which are

visible in the Full Court's decision emerge at least

from pages 73 and 74 of the application book and there

the Court says, at the bottom of the page:

Whether the bans referred to in order 1

be taken as referring to bans imposed by

the Union or bans imposed by its members,

in other words, glossing over the distinction that has

been discussed previously -

there was ample justification for his Honour

reaching the conclusion that the Union was

maintaining those bans. It was conceded by

Mr Crawford: - ; :

that the Union had not taken any step,and then at

line 6: 

The Union was correctly described by

his Honour as "the chief support and prop"

of the bans. He was of the opinion,

correctly in our view, that the requirement

of order 1 was that the prop be taken away,
leaving the individual unionists to make

their own decisions free of any constraint

imposed by Union directives or policies.

We agree with his Honour's observation

that, to remove the prop, a positive step

was required, i.e. the taking of some

positive step by the Union to notify its
members that it no longer sought to maintain

or enforce the bans.

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Then, Your Honours, the court went on:

By failing to resolve to iift its own

bans, the Union effectively maintained

those bans. This conduct was of itself
a breach of order 1.

And there was a reference to disobedience and the court went this far as to way that:

the members were not in a position to

lift their own bans because to have done

so would have been tantamount to disobedience

of the Federal Executive's decision.

And, I interpolate, that appears to go to the point

that Your Honour Mr Justice Brennan raised a little

earlier.

Thus, by failing to resolve to lift its
own bans, the Union effectively maintained

and gave effect to its members' bans.

Now, Your Honours, in our respectful submission that passage demonstrates the confusion that arises because

of a failure to distinguish between the legal

consequences of the Union deciding to do something

and its members deciding to do something, uninstructed

or undirected - not directed by the Union.

BRENNAN J:  But encouraged by.

MR KENZIE: Well, Your Honour, that falls into a different

category and if there is a new category, with respect -

if there is a category of responsibility by

encouragement, then that raises a very significant

question of law, in our respectful submission. The

Australian authorities on this aspect of the law are
really non-existent. There is the decision of the

House of Lords in the HEATONS' case in the early

1970s, which we have not put on our list because it

appeared to us that that was a case involving responsibility

of a trade union for the acts of its individual members

in circumstances where you could spell out from the

rules of the trade union, or from the subsequent

ratification of actions by the trade union, an adoption

by the union of what the members had done.

There is no such thing here and what appears to

be involved in this decision is a pronouncement that

the organization is effectively responsible for the

acts of its members in the manner that Your Honour

describes.

BRENNAN J: Is that a fair way of describing it? I mean, the

question is whether or not the order not to maintain

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any bans has or has not been breached and in order

to determine that, one looks at the background facts

and one there sees that there is a policy laid down

by the Union, carried to the members, instigating the

imposition by the members of bans on individual sites,

then followed by the making of the order and no

action by the Union thereafter while the bans remain

in place, and the simple question is whether, on those
facts, one can attribute to the Union the act of

maintaining the bans.

MR KENZIE:  Yes, Your Honour, all of that we concede for present

purposes, but in order to decide that question you have

to know what is meant by "bans" and that is either a

description that is capable of covering more than one

situation or it is not. If it is a distinction without a difference, that is if it does not matter whether the Union did it or whether its men did it, well, there is

no ·ambiguity or uncertainty - - -

BRENNAN J: Whatever "bans" means, if the background fact is

that the Union instigated their imposition, then may

one not say that the maintenance that is prohibited is

the failure to remove the instigation?

MR KENZIE: Yes. That may be said, with respect. It may be

said that the proper interpretation was that bans meant,

as we contend, the action of the individuals and what

was required of the Union, as a result of the making

of the orders, was - the Full Court said the removal

of the prop, but that could be described otherwise

as the removal of the instigation. The Full Court

said at page 74 point 4, freedom from -

constraint imposed by Union directives

or policies.

So what the Full Court had in mind was that there was

some apparent constraints on individuals in exercising

their own freedom of determination which may be said

to have flowed from some directives or policies and it

was incumbent upon the Union, in those circumstances,

to take some action to remove what were described there

as directives or policies.

Your Honours, the difficulty in all this is

graphically demonstrated by the difficultythat the

court had in defining the obligations of the Union,

in our respectful submission, and if we may illustrate

from the decision of Mr Justice Wilcox, which appears

earlier in the applciation book, a.t page 31, line 18,

His Honour said:

The union, through its officials, was the

chief support and prop of each of these

bans. The requirement of order 1 was that

the prop be taken away, leaving the individual

employees to make their own decisions free

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of any constraint imposed by union

directives or policy. To remove the

prop a positive step was required.

Then His Honour said that there were various ways

in which it might have been done.	Page 32 point 1
His Honour said that -

order 1 required the respondent to take

some positive step to notify its affected

members that it no longer sought to maintain

or enforce the bans -

and the like. At page 26, if I may go backwards for a

moment, line 23, His Honour dealt with the possibility

that it might be said:

that there was a contravention by the

failure of the respondent to take a

positive step necessary to bring to an

end the condition of maintaining the ban.

And at page 60 line 16 His Honour says this:

The intent of the orders made on 13 March

is that the union, as an organization,

should thereafter withdraw all influence

in favour of the maintenance of the bans,

leaving it to each affected employee to

make his own personal decision as to

whether he would carry out the items of

work which had previously been banned.

Your Honours, the duties which were there said to

be imposed on the Union are described in general and

necessarily prosaic terms because the result to be

achieved by the Union was itself not spelled out.

Neither was it a case where there were mandatory orders

which themselves specified the steps that were required

to be taken to achieve a result which was understandably

not specified. Neither the result nor the steps were

specified and that in circumstances where the proximate

action giving rise to the proceedings under section 45D

was taken by persons not before the court. The short

answer to what has happened, Your Honours, is that the

proceedings have been asked to do more work than they

can do. ·No mandatory orders were sought, they could

have been. No result was set out in the orders, it

could have been and, of course, the parties who committed

the action which was the proximate action were never

before the court, either individually or in a

representative capacity.

The result is that the orders that appear on page 66 have been asked to perform the job of imposing

specific - or at least alternate obligations to take

affirmative action. In our respectful submission,

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they are incapable of doing that. They do not

specify whose bans. As a matter of common sense one

would think it means the members. They do not

otherwise describe the bans, other than by reference

to the word "any" and that covers a multiplicity of situations. Now, in those circumstances, it is our

respectful submission that the principles which are

examined in MORGAN's case are squarely raised; these

were orders which on any view were capable of giving

rise to more than one construction; that distinction

was blurred because of a refusal to recognize the

distinction between the Union and its members.	When
that distinction is borne in mind, the orders
necessarily had am ambiguity and fell within the
enunciation of the majority in MORGAN's case.

I think that the Court has the drift of what

we have to say. We say that it is a matter that goes

beyond the construction of the individual order, for

reasons that we have gone to. We say that there is

clearly an error on the part of the Full Court in

relation to trepurported identification of obligations

in this order, for reasons that we have dealt with, and

that leave should be granted.

MASON CJ:  We need not trouble you, Mr Trew.

The Court is of opinion that the decision of

the Full Court of the Federal Court is not attended

with sufficient doubt to justify the grant of special leave to appeal. The application is therefore refused.

AT 1.02 PM THE MATTER WAS ADJOURNED SINE DIE

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