Roberts, J.T. v Murlar Pty Ltd

Re: JOHN THOMAS ROBERTS
And: MURLAR PTY. LIMITED; THE BUILDING WORKER'S INDUSTRIAL UNION OF AUSTRALIA;
MARIO ALBERICI and LEW ZIVANOVIC
No. NSW G164 of 1986
Trade Practices
16 IR 199

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Pincus J.

CATCHWORDS

Trade Practices - alleged arrangement under s.45E - constitutional validity - whether purpose objectively or subjectively assessed - overlapping portions of section - how construed - whether pre-existing contract implied - meaning of "services" - exercise of discretion as to grant of injunction.

Constitutional Law - corporations power - validity of restriction on trading activities.

Trade Practices Act, 1974 ss.4(1); 45D; 45E

The Constitution s.51(xx)

HEARING

BRISBANE

#DATE 22:8:1986

ORDER

The application be dismissed.

The applicant pay the respondents' costs of and incidental to the proceedings to be taxed.

NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

This is an application for a declaration, an injunction and damages under s.45E of the Trade Practices Act 1974. The applicant, Mr. Roberts, is said to be an employee of the first respondent (Murlar); it is not as clear as it should be which of the companies mentioned in the evidence currently employs him, but the parties treated it as common ground that Murlar is the employer. It should be mentioned that, for practical purposes at least, Murlar and a company called Cadophone Pty. Ltd. trading as Alpine Erections, which was the first respondent when the application was first made, appear to have been treated as interchangeable entities. The applicant's claim is, in substance, that Murlar has made an arrangement with the second respondent (B.W.I.U.), a trade union, for purposes which include putting the applicant out of his job unless he leaves the Australian Building Construction Employees and Builders Labourers Federation (B.L.F.) and becomes a member of the B.W.I.U. The B.L.F. has been, by statute (Acts Nos. 6 and 7 of 1986) reduced to the status of an unregistered association, but will be spoken of in these reasons as if it were a legal entity.

As will appear, I am satisfied that an arrangement of some sort was made between Murlar and the B.W.I.U. having to do with the applicant's employment; the evidence as to the nature of that arrangement was, however, left vague and unsatisfactory. Before coming to its details, it is convenient to deal with a constitutional objection which was taken, the necessary notices having been given.

Constitutional Validity
It was argued for the B.W.I.U. by Mr. Rothman of counsel that s.45E of the Trade Practices Act is not a valid law with respect to corporations under s.51(xx) of the Constitution and is not supportable under any other head of power.
Section 45E is a long provision, a number of whose sub-sections is relevant to the present case; I do not here set it out but will assume that the reader will have it by him. Section 51(xx) of the Constitution gives the Parliament power to make laws with respect to "foreign corporations, and trading and financial corporations formed within the limits of the Commonwealth".
As will be seen from examination of s.45E, the illegality it creates arises from interaction between three "persons". By reason of s.45E(3), one of the first two must be a corporation; the third person must be an organisation of employees, an officer of such an organisation or someone acting for one of them. For the sake of brevity, I shall speak of the third person simply as the "union" and shall use the expression "arrangement" as a substitute for the expression "contract, arrangement or understanding" which occurs in the section.
The general effect of s.45E is to prohibit the making by the first person of arrangements with a union inhibiting dealings between the first and second persons. For example, the section might apply to make it unlawful for A to agree with a union not to supply goods to or acquire goods from B - but only if one of A or B is a corporation. The word "corporation" means, so far as relevant to this case, a "trading corporation formed within the limits of Australia ..."
Mr. Rothman conceded that laws regulatory of the activities of trading corporations prima facie fall within s.51(xx) of the Constitution, but he said that s.45E cannot be so characterised because "corporations are free, utterly, to make every arrangement caught by s.45E except with organisations of employees". Counsel argued that such a law could be assimilated to one prohibiting corporations from employing communists, and that it had no substantial connection with corporations.
So far as relevant to this case, where the first person mentioned in the section is a trading corporation, and the effect of the section, if applicable, is to prevent it from making certain sorts of contracts, it seems clear enough that the operation of the provision is valid. The most recent decision in which the High Court has had to consider the scope of s.51(xx), other than the question of what sorts of corporations are within it, is Actors and Announcers Equity Association of Australia v. Fontana Films Pty. Ltd. (1982) 150 CLR 169. There may have been a difference of view in that case as to what the test of validity is. Gibbs C.J., with whom Wilson J. agreed, said at p.182 that:

"The words of par.(xx) suggest that the nature of the corporation to which the laws relate must be significant as an element in the nature or character of the laws, if they are to be valid ... In other words, in the case of trading and financial corporations, laws which relate to their trading and financial activities will be within the power."

On the other hand, Mason J., with whom Aickin J. agreed, said at p.207:

"Nowhere in the Constitution is there to be found a secure footing for an implication that the power is to be read down so that it relates to 'the trading activities of trading corporations' ..."

Even if the former suggestion is right, the section can validly operate in a case like this. Although it is, no doubt, possible that s.45E might impugn an arrangement made by a trading corporation with a union other than in the course of the former's trading activities, the section has a clear and direct relationship to such activities; for a provision of the arrangement, if caught by s.45E, must have the purpose of preventing or hindering the corporation from dealing, in respect of goods or services, with another. It therefore appears that, in its application to this case, s.45E may be described as "a law which governs the trading activities of trading corporations" (per Gibbs C.J. in the Fontana case at p.183), one which "has an effect on corporations in their trading activities" (per Mason J. at p.200), and one concerned with "the regulation of the trading activities" of a trading corporation (per Mason J., p.205). Further, the law is one which can be said to impose a duty upon the first person, being a corporation, affecting the conduct of its trading activities (cf. per Brennan J. at p.219).
Since I am satisfied that, so far as necessary for the purposes of this case (i.e. where the first person mentioned in the section is a corporation), the section is supportable under the corporations power, it is unnecessary to consider the question whether it may be supportable also under s.51(xxxiv): see The Queen v. Sweeney; ex parte Northwest Exports Pty. Ltd. (1981) 147 CLR 259 at 273, 274.

Evidence as to Arrangement
As mentioned above, the evidence with respect to the arrangement between Murlar and the union was rather vague. It is necessary to set it out in some detail.
There may be put on one side a memorandum of understanding of 14 August 1984, of which evidence was given. The parties to that document were, according to the preamble, the Master Builders' Federation of Australia and a number of other organisations, and according to the second- and third-last sentences, other employers who signified their agreement in ways there set out; there is no evidence that Murlar is, or has ever been, a party. Similarly, it is is unnecessary to give detailed consideration to other documents in evidence showing interaction between the B.W.I.U. and the B.L.F., for none of those documents evidenced any relationship between Murlar and the B.W.I.U. Senior counsel for the applicant, Mr. Grieve Q.C., argued that the actions of Murlar were such that one could safely infer the existence of an arrangement within s.45E.
In early April 1985, the applicant was out of work, having been, together with other men, blacklisted by certain employers. On 17 April 1985, under pressure from the B.L.F., Messrs Baker and Zivanovic, who are directors of and shareholders in Murlar and (apparently) associated companies, agreed to the employment of the applicant by Skatedale Pty. Ltd. and in November the applicant began to be employed by Murlar. On 28 April 1986, the applicant was working on a building site at Surry Hills when he was told by a supervisor to attend at Murlar's office. He did so and was there asked by Zivanovic to sign an application for membership of the B.W.I.U. and a resignation from the B.L.F. The applicant, who did not wish to sign either document, complied with this demand, on being told that if he did not, "You'll be out on the road, you'll be finished". On enquiring whether the dues payable to the B.W.I.U. would come out of his next payment of wages, he was told by Zivanovic that they would. At the same interview, a girl in the office asked the applicant for his B.L.F. "ticket" evidencing his membership of that union. Zivanovic told him, in effect, that the B.W.I.U. wanted the B.L.F. ticket handed over, but the applicant refused.
At the least, the events just mentioned are evidence of some co-operation between the B.W.I.U. and Murlar, having the purpose of getting the applicant, or perhaps a class of people including the applicant, out of the B.L.F. and into the B.W.I.U.
There was some discussion at the hearing on the question whether the resignation just mentioned was effective. It was, I think, common ground that it was not shown to be, if for no other reason than that there was no evidence that it was communicated to the B.L.F.
Although the applicant refused to surrender his B.L.F. ticket, he was told by the third respondent, apparently a union functionary, that he could resume work at the site. Zivanovic, on having this information passed to him, said that the applicant would first have to obtain a clearance from a Don McDonald at the B.W.I.U. Later that day, (28 April 1986) Zivanovic told the applicant that he had spoken to McDonald, who had said that if the applicant had not handed over his B.L.F. ticket, he had not joined the B.W.I.U., "so you can't put him on site".
It should be interpolated that Zivanovic and the applicant have, to some extent, differing recollections of these conversations; in general, I prefer to rely upon Zivanovic's version, although I think the applicant gave his evidence honestly.
Because of the lack of a clearance from the B.W.I.U., the applicant was not allowed to work at the Surry Hills site after 28 April, and he instituted the present application two days later. On 5 May 1986, Evatt J. made an interlocutory order that Murlar continue to employ the applicant without imposing conditions that he resign from the B.L.F., or surrender his B.L.F. ticket, or become a member of the B.W.I.U. The applicant then went back to the Surry Hills site and resumed his ordinary duties. On 6 May, there was no work, either because of an employees' meeting or because it was raining, or for both such reasons. On 7 May, Murlar transferred the applicant to work at a site referred to in the evidence as the Granville Bridge.
Zivanovic said that he was unwilling to put the applicant on the Surry Hills site, and eventually removed him from that site, because he was apprehensive about industrial trouble developing by reason of the applicant's presence. I accept that evidence.
The Granville Bridge site is referred to in the evidence as one controlled by the Australian Workers' Union. The applicant worked there on 7 and 8 May, but he was off from Friday, 9 May, until Tuesday, 13 May inclusive, saying he had influenza. He apparently worked again on Wednesay, 14 May, Thursday, 15 May and part of Friday 16 May. On Monday, 19 May 1986, he went to work again at the Granville Bridge site, but there was a meeting that morning of scaffolders employed by Murlar, who were upset by the fact that casual crews had worked on the job on the weekend. The applicant telephoned the A.W.U. during the course of the morning and then took the rest of the day off in protest against the employment of the casual crews. On Tuesday, 20 May, he reported to the same site and on that day there was another meeting of the employees. Murlar agreed to pay everyone four hours overtime as a result of the employment of the casual crews on the weekend.
On the following day, Wednesday, 21 May, Zivanovic caused a letter to be delivered to the applicant terminating his employment "due to your consistent loss of time throughout your employment". He consulted the A.W.U. without beneficial result, but on Thursday, 22 May, there was a stop-work meeting of the scaffolders at Murlar's place of business, at which it was agreed that there would be a strike unless the applicant was reinstated. Murlar thereupon agreed to take the applicant back. However, matters did not proceed smoothly, for there was yet another stop-work meeting about another issue, resulting in a resolution that there should be a 48-hour stoppage. It is not clear whether that occurred; the applicant went to the job on Friday, 23 May, but was told it was closed down.
On Monday, 26 May, the applicant, in accordance with a direction from Zivanovic, went to the Granville Bridge job again, and on this occasion there was trouble of a different sort. He was told by a man called Mark, who purported to be an A.W.U. delegate, that he had to join the A.W.U.; it was agreed that he would pay the moneys due in consequence of such joinder on the following Friday. On Tuesday, 27 May 1986, he was approached by one Young, an organiser with the same union, and there was further discussion about payment of his dues. An attempt was made to induce Murlar to pay, but it refused; Young said: "He can't start until he is financial." When the applicant reiterated that he could not pay until Thursday, Young told him he would have to leave the site because he was unfinancial. He did so.
Zivanovic explained that he sent the applicant to the A.W.U. site at Granville because "I knew that he stood a better chance of going undetected on that site than on any other site that Alpine Erections was working on at that time". Zivanovic said that all but two of the sites at which Alpine Erections was working on scaffolding - the work for which the applicant was engaged - were "controlled by" the B.W.I.U. I see no reason to suspect the veracity of Zivanovic's explanation of his action in attempting to have the applicant work on the Granville Bridge site.
Since the applicant had been, so to speak, rejected at Granville Bridge, Zivanovic sent him to a B.W.I.U. site at Terry Hills. He was again sent away on the ground of non-membership of the B.W.I.U. The following day, the applicant attended a site at Smithfield with a similar result, and on Friday, 30 May, much the same thing happened.
That was the last occasion on which Murlar attempted to place the applicant on a site, and since Friday, 30 May, he has done no work for Murlar, although he has regularly phoned seeking instructions as to where to report. I infer that Murlar has given up trying to use the applicant's services in any profitable way and has thought it simplest, pending this litigation, to pay the applicant for doing nothing rather than try to use him.
It is a curiosity of the case that Zivanovic gave no evidence as to what caused him to try to get the applicant out of the B.L.F. and into the B.W.I.U., as he did in April. Zivanovic gave evidence by affidavit and orally, but said very little of direct relevance to the central factual question in the case. He was asked whether:

"... as a result of communications that have passed between Murlar and the B.W.I.U. it is now necessary in order for Murlar to offer any work to Mr. Roberts, for Mr. Roberts to relinquish his membership with the B.L.F. and join the B.W.I.U. is not it?"

Zivanovic answered:

"No, it was not so much between the B.W.I.U. and our company, it was more so between the builders that we do work for in our company."

This rather elliptical answer I take to mean that although there had been some communications on the subject between the B.W.I.U. and Murlar, the main influence on Murlar's actions was something which passed between head contractors and Murlar. What that was is unclear, but it seems probable that Zivanovic was referring to contracts made between Murlar and head contractors. A considerable number of these were tendered. An example is Exhibit LZ2 dated 4 September 1985, a contract between Citra Constructions Limited and Cadaphone Pty. Ltd. trading as Alpine Erections. By special condition (d):

"All wage employees of the Sub-contractor working on site are to be current financial members of the appropriate trade union. Prior to each such employee commencing work on site, the Sub-contractor shall supply to the Builders Project Manager a photo-copy of the employees financial clear card."

The expression "appropriate trade union" is not defined, but obviously cannot mean the B.L.F. That is so for more than one reason, but as at 28 April 1986, when the trouble began, the B.L.F.'s non-registration was reason enough. Act No. 7 of 1986, referred to above, came into force on 14 April 1986 and under it the B.L.F. is -

"... not capable of being a party to, and shall not be permitted to intervene in, a proceeding before the Commission and is not capable of being a party to an award made by the Commission."

That result follows from s.4(3) and the definition of "non-registered association" in s.3; the Commission is, of course, the Australian Conciliation and Arbitration Commission. The expression "the appropriate trade union", whatever it means, cannot encompass an unregistered federal association with no right to represent its members in proceedings before the Commission. There was no evidence that the B.L.F. is registered in N.S.W. under any industrial legislation, and I therefore infer that it is not so registered.
The sub-contract just mentioned is of particular significance because it relates to the Surry Hills site referred to above.
It is convenient to defer stating my conclusion with respect to the nature of the arrangement until other questions are dealt with.

Purpose
It was argued for Murlar that the applicant cannot succeed without establishing that Murlar subjectively had such a purpose as is mentioned in one or more of paragraphs (a), (b) and (c) of s.45E(1). The condition of operation of the section is that the "proposed contract, arrangement or understanding contains a provision that -- " has one of those three purposes. Counsel argued that since "purpose" in s.45D of the same Act has been held to have a subjective meaning, it should have the same meaning in s.45E and referred to Trade Practices Commission v. Orlane Australia Pty. Ltd. (1983) 48 ALR 169 at 182 and to Bullock v. Federated Furnishing Trades Society of Australasia (1985) 60 ALR 235 at 238.

Section 45D talks about conduct being engaged in for one of the purposes specified therein. Conduct is engaged in by people and the implication is that those who engage in the prescribed conduct must have the defined purpose. Section 45E contemplates that a contractual provision or the like will be shown to have a particular purpose and there is a sense in which a clause in a contract may itself be said to have a purpose, even if the parties do not have it in mind. In ordinary speech, reference to the purpose of a provision in a contract may well be intended to describe that purpose which appears simply from examination of the contract. For example, the purpose of a provision in a building contract requiring retention of a proportion of each progress payment might be found to be the creation of a fund as security for due completion of the contract, whether or not either party subjectively had that purpose or even knew of the clause's existence.
Counsel for the applicant referred to Ashton v. IRC (1975) 1 WLR 1615 which applied to New Zealand income tax legislation a principle derived from Newton v. Commissioner of Taxation (1958) AC 450 and said that one should take the purpose of any proved provision, for the purposes of s.45E, as being that which emerges from examination of the objective facts.
Application of one test may, in a particular case, reach a quite different result from that arrived at by application of the other: what appears on the face of a contractual document to be a proscribed purpose may be shown by accepted evidence not really to have been intended by parties. On the other hand, a difficulty about acceptance of the requirement that the purpose be proved subjectively is that the parties to such an arrangement as spoken of in the section may well have different purposes. As Mr. Trew Q.C. for Murlar pointed out, where there are two parties to a contract, the subjective purpose must be one common to both.
In my opinion, the better view is that once the arrangement and the allegedly offending provision are identified, the question whether the latter has a purpose falling within s.45E depends on analysis of the provision against the factual background and not on the parties' state of mind.

Structure of s.45E(1)
Mr. Trew Q.C. for Murlar advanced an argument which, if accepted, would considerably restrict what might otherwise have been thought to be the scope of operation of par.(a) of s.45E(1). Exposition of the argument is assisted by using some shortened expressions: "preventing" instead of "preventing or hindering"; "supplying" instead of "supplying or continuing to supply any such goods or services"; and "acquiring" instead of "acquiring or continuing to acquire any such goods or services". Thus abbreviated, par.(a) refers to the purpose of preventing the first person from supplying to or acquiring from the second person; par.(b) speaks of the purpose of preventing the first person from supplying to the second person except subject to a certain condition; and par.(c) speaks of the purpose of preventing the first person from acquiring from the second person except subject to a condition.
It can be seen that, except for the reference to subjection to a condition, the effect of pars.(b) and (c), taken together, amounts simply to that of par.(a). The argument of Mr. Trew Q.C. was that if par.(a) is to be given any work to do, it must deal with prevention from supplying or acquiring absolutely and not subject to a condition; it followed, he said, that (a) can have no application to this case. Paragraph (a) does not expressly say whether it is intended to catch prevention subject to a condition, but the fact that pars.(b) and (c) deal with that subject-matter, it was argued, shows that par.(a) was not intended to do the same.
I do not have to decide whether par.(a) deals only with absolute prevention or hindering. For present purposes, it is enough to say that if par.(a) has any application to prevention from supplying or acquiring except subject to a condition, it does not cover conditions of the kind mentioned in (b) and (c) - i.e. conditions governing the future conduct of the second person with respect to supplying goods or services and matters like that. It follows that, in my view, it is necessary to consider only pars.(b) and (c) in the present case, where no question of absolute prevention arises.

Pre-existing Contract
It was contended for Murlar that there was no such condition as mentioned in par.(b) or par.(c) of s.45E(1) because the case was taken out of those paragraphs by the exclusion in (b):

"(Not being a condition to which the supply of such goods or services by the first-mentioned person to the second person has previously been subject by reason of a provision of a contract existing between those persons)"

and the similar expression in par.(c). The argument was that the contract of employment between Murlar and the applicant contained the very condition whose imposition is now the subject of complaint: "no ticket, no start". It was said that the evidence proved that by custom, a term was implied in the contract of employment that the applicant would belong to an appropriate union; reference was made to the recent decision of the High Court in Con-Stan Industries of Australia Pty. Ltd. v. Norwich Winterthur Insurance (Australia) Ltd. (1986) 64 ALR 481 at pp 485, 486.

In his oral evidence, it is true, the applicant used language giving some superficial support to the submission. He said in effect that it had always been accepted that people doing work on a site covered by the rules of a particular union had to belong to that union; the B.L.F., the union to which he adhered and continues to adhere, has itself taken steps, with his support, to enforce that practice.
On the face of it, there might appear to be something to be said in favour of the view just mentioned, for the "no ticket, no start" practice was well entrenched before the applicant encountered his recent difficulties, and it must be taken that each party to the contract of employment was well aware of it. Consideration of the specific facts, however, makes it impossible to hold that there was such a term as alleged. When the applicant was engaged by Murlar, he was a B.L.F. member; solicitation by that union obtained him his job. There were, at that time, other unions in the building industry to which he might have belonged, but he was employed as a B.L.F. man. He did not undertake, expressly or otherwise, to join any other union. The contention in favour of importation of a term by custom depends on the view that he implicitly promised, in the event of deregistration of the B.L.F., to join another union, or perhaps a number of other unions, to facilitate his continued employment. In my view, there was no term in the contract of employment dealing with the possibility that the B.L.F. would be deregistered, thereby rendering continued use of the applicant's services difficult or impossible. No need to imply a term can be seen, for the goal of business efficacy mentioned in the authorities could be secured without any implication; the applicant is, and always has been, liable under his award to dismissal on one day's notice.
I therefore conclude that, for the purposes of pars.(b) and (c), there was no such condition as is mentioned in the bracketed part of each paragraph.

Services
The pleading and argument relied only upon supply or acquisition of services, not goods. It will be seen then that to come within the provisions of par.(b) or par.(c), it must be shown that the condition in question is one "as to the persons to whom, as to the manner in which, or as to the terms on which, the applicant might supply any services".
So far as relevant to this case, the definition of "services" reads as follows:

"'services' includes any rights (including rights in relation to, and interests in, real or personal property), benefits, privileges or facilities that are, or are to be, provided, granted or conferred in trade or commerce, and without limiting the generality of the foregoing, includes the rights, benefits, privileges or facilities that are, or are to be, provided, granted or conferred under -

(a) a contract for or in relation to -

(i) the performance of work (including work of a professional nature), whether with or without the supply of goods;

...

but does not include rights or benefits being the supply of goods or the performance of work under a contract of service;".

I shall use the word "rights" in the discussion which follows to stand for the expression "rights, benefits, privileges or facilities".
If there was an arrangement containing a provision within par.(b) or par.(c), then the condition cannot be one with respect to the performance of work under a contract of service by the applicant, because of the exclusory provision at the end of the definition. To avoid this difficulty, the applicant pleaded a number of other alleged "services", the supply of which by the applicant was said to be caught by the condition imported by the alleged arrangement. Paragraph 8C of the statement of claim alleges, in effect, that there was a condition as to the terms on which the applicant might supply services referred to in par.6 of the statement of claim, the first of which is the right "of having a free selection from the class of persons that perform the work, e.g. with reference to race, age, sex, union members, non-union members, members of any union (including the applicant)". The right of free selection cannot be "services" for the purposes of the concluding words of pars.(b) and (c) of s.45E(1), for the services mentioned in those provisions are services supplied by the applicant. The right of free selection, to the extent that it exists, is not supplied by the applicant, but derived from the general law.
Similarly, the pleading is, in my view, in error in treating the right not to have to terminate or suspend the applicant's employment because of union affiliation as "services" which the applicant might supply.
It is not necessary to deal with each of the suggested "services" pleaded, most of which, for a fairly obvious reason, cannot fit within the language of the statute. It is desirable, however, to mention specifically three suggested sorts of services listed in the pleading.
First, the pleading relies on the right of retaining the applicant in employment without reference to union affiliation. If that right is within the definition of "services" in s.4(1) of the Act, and if it is something supplied by the applicant, still it is unaffected by any arrangement between the B.W.I.U. and Murlar. There is no evidence that such an arrangement had any concern with whether or not the applicant was employed; the question was one of excluding the applicant from B.W.I.U. sites. To this the answer may be made that it is an inescapable consequence (absent any external pressure) of keeping the applicant off B.W.I.U. sites that he must be of insufficient use to the employer and be dismissed; but that does not mean that the employer has not, arrangement or no, the right, or (to put it fully) the right, benefit or privilege, of retaining him in employment if it chooses.
The second such allegation which requires some analysis is that in par.6(2)(v) of the statement of claim, namely (in substance) the right to have the applicant act honestly and skilfully. Again, assuming that that right is within the definition of services, it is unaffected by any condition which may be extracted from the dealings between Murlar and the B.W.I.U. It would be artificial to treat the evidence as suporting the inference that the parties had agreed on a condition affecting the right of the applicant to work honestly and skilfully for Murlar; all the B.W.I.U. cared about was that he should not work on certain sites. There is also a more fundamental objection, namely that on the proper construction of the definition of "services" the elements of performance of work under a contract of service (that being expressly excluded from the definition) cannot be taken separately and each treated as services. The "rights or benefits being ... the performance of work under a contract of service" include the beneficial characteristics of that performance, such as honesty and skill. A subtler argument advanced by Mr. Grieve Q.C. to counter this was the suggestion that there is a difference between the actual performance of work, which is covered by the exclusion, and the advantage inherent in having the potential performer available to work honestly, skilfully and so forth. In my view, all that is caught by the exclusion; I am confident that the legislature did not intend so pointless a distinction.
Lastly, sub-par.(vi) speaks, inter alia, of the right, benefit or privilege obtained by the applicant's continued availability and willingness to work. This is, in my opinion, covered by the conclusion reached with respect to the preceding sub-par.(v). In particular, it should be noted that no condition directed against the applicant's availability or willingness to work can be deduced from the actions of the employer.
I arrive at the conclusion, then, that there is not shown to be any such condition as mentioned in the latter part of pars.(b) and (c) of s.45E(1).
The conclusion just mentioned is by no means the end of the questions which arose in the case with respect to the supply or acquisition of services. The respondents argued that the evidence did not demonstrate Murlar to be within the expression near the beginning of the section:

"a person who has been accustomed, or is under an obligation, to supply goods or services to, or to acquire goods or services from, a second person."

Then, it was said (and I agree) that there were no services the subject of a purpose of preventing Murlar from acquiring the same, within the opening words of par.(c). A number of difficult questions arise under these headings, but in view of my conclusions with respect to the conditions in (b) and (c), it is unnecessary to discuss them. I merely comment that the extravagant width of the definition of "services" is such as to make it likely that attempts to apply the provisions of the Act which use the concept of "services" as defined will continue to raise difficulties in determining what is included and what excluded by context or, indeed, common sense.

Conclusion as to Liability
It may be convenient to summarise the preceding discussion:

(i) Section 45E(1) is adequately supported by s.51(xx)

of the Constitution in a case of this sort, where the person first mentioned in the section is a trading corporation.

(ii) The purpose of the provision mentioned in the

section must be judged objectively, not subjectively, against the factual background.

(iii) Paragraph (a) of s.45E(1) has, as a matter of

construction, no application to a case of this sort where the prevention or hindering is not absolute but subject to such a condition as is here in issue.

(iv) The applicant's case fails as to pars.(b) and (c)

of s.45E(1) because there was no such condition as first mentioned in those paragraphs. There was, however, no condition of the kind mentioned within the brackets in those paragraphs.

These conclusions are enough to dispose of the case. It has appeared to me inappropriate to decide other questions which were raised; for example, it was said that a decision of Fisher P. in the Industrial Commission of New South Wales on 11 June 1986 should not be followed, and that certain consequences of assistance to the respondent flowed from that. In the end, it seems necessary to deal with only one other point.
That is whether, on the assumption that I am wrong in the views set out in conclusion (iii) above, the applicant would be entitled to relief.
In accordance with the views set out above, it appears to me that the question should be considered having regard to the objective purpose of any inferred arrangement rather than the subjective intentions of the parties. On that basis, the most that could be drawn from the evidence is that the B.W.I.U. and Murlar made an arrangement in April 1986 (presumably prompted by the then recent coming into force of the deregistration legislation) a provision of which had the purpose of preventing the supply or acquisition of "services" (assuming the definition applies) as between the applicant and Murlar, except subject to a condition that the applicant leave the B.L.F. and join the B.W.I.U.
There is no basis for inference, however, that it was necessarily arranged that there be a continuing campaign. The actions of Murlar are explicable on the footing that it agreed with the B.W.I.U. to try to force the applicant, and no doubt others, out of the B.L.F. and into the B.W.I.U. That attempt apparently failed and has never been renewed.
It is true that from 5 May 1986 the course of events may have been influenced by the injunction granted by Evatt J. on that date, but at least as importantly Murlar was, and still is, subject to two other constraints.
One is, of course, the risk of industrial action, and the second is the fact that Murlar can, on the evidence, get work only on terms illustrated by the sub-contracts tendered, which have the result of making it a breach of contract to use B.L.F. labour. It was not contended that I should declare such contracts void or enjoin the other parties to such contracts from insisting upon them; apart from anything else, none of such parties is joined.
Mr. Trew Q.C. emphasised the oddity of granting an injunction with respect to a contract of employment and one terminable on short notice at that. As a matter of exercise of discretion, whether under s.80 of this Act or otherwise, a Court would surely not make such an order except in quite unusual circumstances; the result ordinarily would be that the employer would be briefly forced into a relationship he did not desire. The only special circumstance able to be pointed to here to distinguish the case from others in which short-term relationships have been sought to be made the subject of injunctive relief is the possibility or likelihood of industrial pressure. But just as counsel for the applicant urged me to ignore the likelihood of industrial trouble by those opposed to the B.L.F. when determining whether to grant an injunction, so surely I should not assume that industrial pressure would in practice keep the applicant in his job against Murlar's will, as at present.
On the assumption mentioned above, I would take the view that there is evidence only of an arrangement having an immediate purpose of changing the applicant's union affiliation. There is not sufficient evidence to found an inference that Murlar also agreed with the B.W.I.U. to do something which it had to do under its contracts anyway, namely refrain from employing the applicant or others, as not being in "the appropriate union".
The application must be dismissed with costs.

[1986] FCA 358

22 AUGUST 1986