Regency Constructions Pty Ltd v Australian Building Construction Employees & Builders Labourers Federation

[1983] FCA 225

Re: REGENCY CONSTRUCTIONS PTY. LTD.
And: THE AUSTRALIAN BUILDING CONSTRUCTION EMPLOYEES' AND BUILDERS' LABOURERS
FEDERATION; THE BUILDING WORKERS' INDUSTRIAL UNION OF AUSTRALIA; HAROLD ROBERT
OLSEN; JIM REED; RICK TODD; GREG DERICH
No. WAG 42 of 1983
Trade Practices
5 IR 446

COURT

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION

CATCHWORDS

TRADE PRACTICES - secondary boycott - application for interlocutory injunction to restrain respondents from imposing ban on building sites - whether concerted conduct by respondents engaged in with purpose of causing substantial loss to applicant - whether respondents exempted under s.45D(3) of the Trade Practices Act 1974

Trade Practices Act 1974 ss. 45D, 45D(3), 80AA

HEARING

PERTH

#DATE 19:9:1983

ORDER

1.(A) The first and second respondents by themselves, their officers members servants or agents and the third, fourth, fifth and sixth respondents be restrained, alone or in concert with other persons or Trade Unions, from engaging in conduct namely:

(a) Hindering or preventing the supply of goods or services to the applicant at Lot 13, Fourth Avenue and Railway Parade ("the Mount Lawley site") in the State of Western Australia by the following sub-contractors:

(i) Leslie Electrics for the supply of electrical services and works at the site;

(ii) B. & L. Formwork for the supply of labour and materials relating to formwork on the site;

(iii) V. Marrocco for the supply of bricklaying services at the site;

(iv) Perth Scaffolding for the supply, erection and removal of scaffolding on the site; and

(v) J. McLean for the supply of carpentry services in respect of roof framing on the site;

(b) Aiding, abetting, counselling, procuring, inducing or attempting to induce any person or corporation whatever to withhold, in concert with any other person whatsoever the supply of goods or services or labour by the sub-contractors referred to in sub-paragraph 1(A)(a) above to the applicant at the Mount Lawley site in the State of Western Australia.

(B) The first and second respondents by themselves, their officers members servants or agents and the third respondent be restrained, alone or in concert with other persons or Trade Unions, from engaging in conduct namely:

(a) Hindering or preventing the supply of goods or services to the applicant at the Fremantle Technical College at Fremantle ("the Fremantle site") in the State of Western Australia by the following sub-contractors:

(i) R. & P. Steel Reinforcing for the supply of services and goods on the site.

(ii) New Cement Co. Pty. Ltd. for the supply of services and goods on the site.

(b) Aiding, abetting, counselling, procuring, inducing or attempting to induce any person or corporation whatever to withhold, in concert with any other person whatsoever the supply of goods or services or labour by the sub-contractors referred to in sub-paragraph 1(B)(a) above to the applicant at the Fremantle site in the State of Western Australia.

1. The respondents or any one of them have liberty to apply to vary or set aside this Order on 72 hours notice.

1. The parties have liberty to apply for directions on 72 hours notice.

1. Costs of this hearing be reserved.

JUDGE1

Tempting though it is to reserve my decision on this matter, I am afraid that the urgency of the application and my own commitments require me to give a decision forthwith.

The application is brought under s.45D of the Trade Practices Act 1974, and what is sought at this stage is relief by way of interim or interlocutory injunction. Perhaps at the outset it was envisaged that the matter would come before the court on an ex parte basis and that some interim order might be made. However, as events have turned out, the respondents have been served with the application and supporting documents and they appear today by counsel.

I accept what Mr. Chantler has said to me that the respondents find themselves in some difficulty on matters of fact in dealing with the application at this stage. Nevertheless I must approach the matter, I think, on the basis that it could have come before me on an ex parte basis and that I should deal with the application as best I can on the material available to me.

The applicant is a building company and, it would appear, is not an employer of relevant labour except perhaps in relation to the sixth respondent, Mr. Derich, who I am told was employed by the applicant until quite recently before the events giving rise to this application took place. It is not apparent to me in what capacity he was employed, nor indeed does it emerge from the papers filed by the application or by the respondents what particular role the termination of his employment played in the events leading to this application.

The application itself concerns two contracts to which the applicant is party, both building contracts of a substantial nature, one at Mount Lawley and one at Fremantle. The application involves five subcontracts in relation to the Mount Lawley contract and two subcontracts in relation to the Fremantle project. A dispute appears to have arisen following the termination of a subcontract with a company called Memor Pty. Ltd. on the Mount Lawley site on 2 September 1983, with the consequent dismissal by that company of bricklayers employed by it. There followed a new subcontract made between the applicant and V. Marrocco and Partners for the completion of that subcontract.

There is an allegation by the applicant of a black ban imposed, it is said, by all of the respondents on the Mount Lawley site, and, it is said, by some of the respondents on the Fremantle site. The dispute relating to the Fremantle site would appear to be no more than an extension of the difficulties that arose with regard to the Mount Lawley project.

The matter came before Mr. Commissioner Coleman recently and the commissioner made certain recommendations. Unfortunately I do not have a very clear picture of what Commissioner Coleman recommended or suggested, there being some disagreement between the material in Mr. Dobson's affidavit and that in the affidavit of Mr. Cuomo. There seems to be a dispute as to whether the commissioner made any recommendation, and if so what, with regard to the applicant engaging the dismissed employees. It seems to be common ground that the commissioner recommended or suggested that the applicant do what he could to secure employment for those men. There is also a disagreement, inferentially, between the parties as to what the commissioner recommended or suggested with regard to the lifting of the ban. A literal reading of Mr. Cuomo's affidavit indicates to me that he disputes what is said by Mr. Dobson, that the commissioner recommended to the respondents that the ban be lifted. But Mr. Chantler tells me I should not perhaps read the affidavit quite so literally. In any event, recommendation or suggestion, the ban still remains.

For present purposes the existence of the ban is sufficiently evidenced by the several affidavits filed on behalf of the applicant. I am satisfied that in the case of the Mount Lawley site all of the respondents, and in the case of the Fremantle site the first, second and third respondents, have acted in concert. I stress that that satisfaction is only in terms of what is an application for interlocutory relief. I am also satisfied on that basis that the conduct of the respondents was engaged in for the purpose of causing substantial loss or damage to the applicant, more specifically that that was one of the respondents' purposes. The existence of what may be a legitimate union purpose does not preclude the existence of a relevant purpose for section 45D of the Trade Practices Act, a point that was made by Bowen C.J. in Tillmans Butcheries Pty. Ltd. v. The Australasian Meat Industry Employees' Union and Ors. (1979) ATPR 40-138 at p.18,494.

I am also satisfied that, by reason of the ban imposed on both sites, the applicant stands to suffer substantial damage in respect of both its head contracts and in relation to each of the subcontracts referred to in this application.

A question then arises as to what is the appropriate course to be taken, unless it appears that by reason of s.45D(3) of the Act this application should not succeed either in respect of all the respondents or in respect of the respondent Mr. Derich. This is not the time for an exhaustive consideration of the implications of s.45D(3) of the Act. It operates by way of an exempting provision in a sense. But as I understand it, it casts an onus upon a person who seeks the benefit of that provision; and if the applicant has made good a prima facie case, the onus shifts to the respondents or any of them to demonstrate that by reason of s.45D(3) no conduct in contravention of the section has taken place.

The applicant makes two submissions about the operation of s.45D(3). One is that so far as an existing employer/employee relationship is concerned, the subsection looks to a situation where that relationship exists between employees and an employer who, to use counsel's words, is the target of the application. It is said, and this is not disputed as a matter of fact, that there is no such relationship in force at the present time. But the applicant agrees that Mr. Derich was employed by it shortly before the events giving rise to this application, and, as I understand counsel's submissions, concedes that Mr. Derich falls in literal terms within sub-para.(ii) of para.(a) of s.45D(3). However, the submission of counsel is that the subsection cannot operate in the present case because the dominant purpose for which the conduct was engaged in was essentially conduct aimed at obtaining the reinstatement of those employees who were dismissed by Memor Pty. Ltd. following the termination of the contract between that company and the applicant.

I accept that I may not have before me all the facts that would be necessary if this matter were presently the subject of a substantive hearing. But on the facts available I am satisfied that the respondents have not made good a case that the dominant purpose for which the conduct engaged in and which has been held to be in contravention of s.45D was the purpose required by sub-s.(3). That sub-section therefore is not available to the respondents at this stage of the proceedings. Whether on a substantive hearing the operation of the sub-section can be made out of course remains to be seen.

Counsel for the respondents invites me to do one of three things. One, is to dismiss the application, not because it has not been made good, but because the existence of proceedings before the commissioner should persuade me to take that course. I do not think that option was urged upon me with any great enthusiasm by counsel. Rather it was put to me that I could do one of two things. I could look to the provisions of s.80AA of the Trade Practices Act, or I could exercise a more general power to adjourn the present application.

I am satisfied that s.80AA is not available to me. It is a section that is structured with express reference to proceedings pending before the Australian Conciliation and Arbitration Commission under Division 5A of Part III of the Conciliation and Arbitration Act, and it is common ground that there is no such proceeding pending before the commission.

A question therefore arises as to whether I should exercise the discretion which I have, although it is a discretion that must be exercised judicially, and adjourn these proceedings.

I should say that as a matter of the balance of convenience, there has been no argument by the respondents that they would suffer any loss themselves by reason of the granting of an injunction. On the other hand, it is apparent that the applicant is suffering and will continue to suffer substantial loss while the black ban exists on both sites.

The matter before the commissioner has been listed, I am told by Mr. Chantler, for this Friday. I shall assume, as I said in the course of argument that the commissioner has jurisdiction to deal with the matters that arise before him, although it seems to be common ground that jurisdiction does not extend beyond the making of recommendations to the parties. I do not propose at this stage of the proceedings in this court to consider or express views about the jurisdiction of the commissioner. However, it is apparent from the outcome of the earlier proceedings before him that he felt constrained to do no more than make recommendations or suggestions. Whether that constraint sprang simply from the way in which the matter came before him or otherwise, I am not in a position to say.

There is something to be said for the matter coming once again before the commissioner free from any constraints imposed by this court. And if it were clear that this was a dispute capable of determination by the commissioner - by that I mean determination which went beyond the making of recommendations or suggestions - there would be much force in the respondents' submission that I should adjourn this matter, or at any rate not impose an injunction that would have effect until after the commissioner had had an opportunity to look at the matter again. However, that is not the situation.

I am of the view that the application has made out a case for the granting of an injunction. I am not persuaded that s.45D(3) has any operation in the present case. I am satisfied that the applicant has suffered and is continuing to suffer substantial loss, and in those circumstances I am of the opinion that there should be an injunction. At the same time I am not prepared to grant an injunction which would simply remain on foot for an indefinite period. I can do one of two things, and I shall invite the submissions of counsel on this. I could perhaps grant an injunction until next Monday by which time the commissioner will possibly have heard this matter once again and it may have been resolved, or I could take the view that it being uncertain whether the matter can be resolved before the commissioner I should grant an injunction until further order and give the respondents an opportunity to apply to set aside or vary that injunction on, say 48 or 72 hours' notice.

(The Court then heard submissions from counsel on this aspect of the injunction.)

I do not wish to do anything that might stand in the way of this matter being resolved before the Conciliation and Arbitration Commission if indeed it is capable of resolution before that tribunal. However, I think that sentiment emerges clearly enough from what I have just said, and that will be recorded in transcript. The disadvantage I see in granting an injunction not to extend beyond next Monday is that it forces the parties to come back at a time when the matter may still be continuing before the commissioner, and in the absence of agreement would require the applicant to make good its case for an extension of the injunction. That may prove to be a waste of time not only to this court but to the parties and their legal advisers. For that reason I propose that the injunction should continue until further order, but that the respondents should have liberty to apply on 72 hours' notice to set aside or vary the terms of the injunction.

I also propose to give the parties liberty to apply, on 72 hours' notice, for directions for the substantive hearing of this application, and I propose that the costs of today's hearing be reserved. That will give the parties an opportunity to come back if there is no move to set aside the present injunction but if there is a wish to bring the matter on for hearing, particularly if it is sought to bring it on for hearing with some expedition.