The Honourable Ralph Willis v Australian Building Construction Employees and Builders Labourers Federation

IN THE

FEDERAL

COURT OF AUSTXXLIA )

No. V23 of 1981

VICTORIA	DISTRICT	REGISTRY	)
)

INDUSTRIAL DIVI-

)

The HONOURABLE RALP€: WILLIS (who

sues as Minister

of State for

Employment and Industrlal

Relations) and OTHERS

Applicant

The AUSTRALIAN BUILDING

CONSTRUCTION EMPLOYEES

’ AND

BUILDERS LABOURERS’ FEDEFGTION

Respondent

CORAM:	Evatt, Sheppard and Morllng,	JJ.
DATED :	19 December 1983

REASONS FOR JUDGMENT

THE COURT: The hearing of evidence in this application for the cancellatlon of the reqstration of the respondent as an

organization under the Concillatlon and Arbitratlon Act

1904

commenced on 8 November 1982.

Evidence continued until %arch

1983.

Evidence was given in respect

of a variety of incidents

which occurred m N.S.W.,

The Australian Capital Territory and

Nestern Australia. The Court sat in Melbourne, Sydney and

Pexth. The oral evidence extended over 3,000 pages

transcrlpt; there are numerous exhlblts themselves involving

many hundreds

of pages.

On 16 March 1983 the Court, on the appllcatlon of all

applicants, adjourned the proceedings with libercy to Lhe

parties to apply. The application was consented

to by the

respondent. The purpose of the ad-journment was to enable the

- 2 -

parties to confer under the chairmanship of Mr. Vostl, a

retired Commissioner of the Australian Conclllation and

Arbltratlon Commlsslon, to ascertaln whether some agreement

could be reached which mlght bring industrial peace

m t o the

building and construction industry in Australia. The

subsequent history

of the matter is recorded in the

transcripts of the proceedings

of the Court for 21 Narch

1983,

6 Aprll 1983, 16 May 1983 and 31 October last.

It 1 s

summarised at pp. 3391 - 3392 of the

trailscript for 31 October

1983. .

On 12 December 1983 the matter was again

m the llst.

On that day the Mlnister of State for Employment and Industrial

Relations sought leave to discontinue the proceedings.

He dld

so because the respondent has offered

an undertaking as to lts

future conduct. The undertaking has been offered as

undertaklng to each of the applicants lncludlng the Minlster

and to the Court. It 1 s not acceptable to any appllcant

other than the Mlnister. The remaining applicants, who

comprlse a number of employer organisations in the bulldlng

lndustry, by their Counsel descrlbe the undertaklng

as:

"meaningless, uncertaln, unenforceable	and
wholly unacceptable."

During the course of the argument which took place

on 12 December 1983 difflculties were ralsed

ny members of

the Court about the Court accepting the undertaklng. The first question to be determlned 1 s whether the Court should

accept lt. Rather than set lt

out in these reasons

we have

appended a copy	of the undertaklng to them. We have not
c

- 3 -

appended copies of the three attachments referred to in It.

For present purposes they are sufflclently described	m paras.
3, 4 and 7 of the undertaking itself.

An undertaking to the Court is given ln lieu of an

lnjunctlon and, if broken, is treated as the equlvalent of an order for the purpose of enforcement; Thomson Australia

Holdings Pty. Limited

v. Trade Tractlces Commlssion

(1981) 37

A.L.R.

66 at p. 76.

The malority of The Hlgh Court in that

case added (ibid.

) :

"As an undertaking is given in lieu of

injunction and is enforceable in like

manner, the principles which govern the

grant of an inlunction

by a court must

guide it in deciding whether	it should
accept an undertaking."

The Court 1 s always concerned to ensure,

so far as

it can, that its orders are certain and provide clearly for

what parties affected by them are bound to do or refrain

from doing. Since undertaklngs are enforceable in the same

way as orders the same attention to the terms of an undertaking

offered to the

Court is required as in the case of an order.

This is so whether the undertaking

1s acceptable to the

claimant in the proceedings or not.

3hat we have said 1s trlte.

But we have said it

In order to emphasise to the parties why the Court

was

concerned to see whether the undertaking which the respondent

has offered

1 s sufflclently certaln to warrant its acceptance

by the Court. The Court's attitude in this respect has nothing

to do with the merits or substance of the case,

industrial

harmony, or the Mlnlster's

own decision to accept it. Whether

- 4 -

he accepts it

is a matter for him. He is not concerned

with the same considerations as are we.

Having considered the terms of the undertaklng

are satisfied that

it should not be accepted as an

undertaking to the Court. It is too uncertain. We do not

give detailed reasons for this conclusion. It is sufflclent

to draw attention to para.	1.	It may have been one thlng if
it had said:

"TO comply with its obligations as an

organisation of employees registered under

the Act."

Nlnds may dlffer

on thls questlon. But the vice

of the

undertaking in its present form

1 s in the use of the words,

the same terms as other organizatlons

of employees

registered under the Act."

The question

is what meaning does the undertaklng

have especially taking lnto account the words last quoted.

One posslble meaning is that the respondent wlll only be

in breach of that part of the undertaking if any breaches

of the Act committed by lt are more extensive or more

serlous than breaches committed by other registered

organizations. There are about 150 organlzatlons of

employees reglstered. All no doubt behave ln markedly

different ways. This ln part will be due to the different

industries in which their members are engaged, the different

problems whlch confront their executives and members and

a host of other matters. If it were suggested that there

had been a breach of para.

1, how could one ever determine

satlsfactorily whether that was

so or not? The yardstick

simply too vague and uncertaln. Of

course,

- 5 -

the undertaklng may be lntended to mean somethlng different

to that whlch

we have postulated. But lf so, that meaning

has escaped us. If it is lntended to

mean something

dlfferent, that only highllghts the difflculty which there

1 s in the Court's acceptance of what the respondent has

off ered.

Durlng the hearing there

was discusslon wlth Counsel

for the respondent in whlch it was suggested that the wording

of para. 1 mlght be altered to make clear

what was

meant.

Since the adlournment we have been informed

by the solicitor

for the respondent that no change to the wording	of the
paragraph is possible.

Apart from the meaning

of the words used

In para. 1,

there needs to be considered the terms of para.

2. This

obliges the respondent to have regard

"to the policies of

the trade union movement and Its (the respondent's) collective

comitment to such pollcles." That puts a quallficatlon on

the obligation imposed by para.

1 which increases the

uncertalnty of the content

of the obllgation ln para.

Para. 2 seems to envlsage that there may be clrcumstances ln which the respondent wlll not be obllged to comply wlth para.

1 notwlthstandlng that it will nevertheless

be in breach

obllgations Imposed upon it

by the Act under winch

It is

registered. Apparently, lf the pollcles of the trade union

movement run counter to the provisions of the Act, the

provlsions of para.

1 are not to apply.

For the reasons we have glven

we decllne to accept

the undertaking which has been offered. Nevertheless,

we are

- 6 -

stlll asked to grant the Mlnister leave

to dlscontinue the

proceedlngs. The application is not opposed by the remalning

applicants nor by the respondent. Ordlnarily, the Court wlll

grant a party leave to dlscontinue proceedlngs brought by

h m

provlded it 1 s satisfied that appropriate orders have been made

relatlon to costs and that no lnlustice will be caused the

other party by the brlnging of fresh proceedings If

the Court

is of opinion that

It would be unlust that fresh proceedings

be brought. Normally the Court would not be interested

dolng otherwise than

glvmg effect to an applicatlon for

leave to

discontmue where no other party to the proceedlngs

opposed it.

We have paused to conslder, however, the clrcumstances

of the present case. It seems to us that an application under

section 143 of the Act for the cancellation

of the registration

of an organlsatlon involves questlons

of publlc policy. There

is a question in our minds whether an application for leave

to discontinue such a proceeding

1s governed by the orblna=y

rules to which

we have referred. The evidence which

we have

so far had in the matter

raises,in our opinlon, serlous

matters for consideration. We have not heard the respondent's

case and the applicants' case

1 s still incomplete,

so our

statement is made tentatlvely.

It by no means represents any

concluded view about the evidence we have

heard. But 1t 1s our

tentative view concernlng that evidence which has made us

pause to conslder whether we should not Investigate the

question of whether conslderations of public policy might

milltate aqalnst our acceding to the Ninister's application.

- 7 -

Having reflected on the matter we have declded that we should accede to it. In the admlnistration of the Act as a whole, the Minister plays a substantial part. He was obviously intended by the legislature to re2sresent the

public interest in many situations. Such a situation is

applicatlon under section

143 itself, the section specifically

providing that the Minister may make an application pursuant

thereto. If the Mlnister, having instltuted such an

application, wishes to wlthdraw

It, it would seem, even if

publlc policy considerations may be taken into account, that

he, representing as he does the public interest, should be

allowed to act as he wishes. If the Minister subsequently

wishes to be heard in the matter he may "intervene in the

publlc 1nterest;"see subsection

106 (1) of the Act.

We wlsh

to make it clear,however,that

we are leaving open the question

of whether, in the event of an appllcant other than the

Minister wishing to discontinue proceedings of this

kind,

leave to dlscontinue wlll lnvolve an appllcant demonstrating

that there are no public policy consideratlons which militate

against the grant of the applicatlon. We leave for the future

the question of whether that would be a relevant consideration

or not.

Although we are not prepared to accept the undertaklng

offered by the respondent as an undertaklng to the

Court, we

are prepared formally to note

it as an undertaklng given to

the applicants including the Minlster.

It may have relevance

for these proceedings which the remainlng applicants desire to

prosecute.

It may also have relevance

If any other proceedings

of thls klnd are instituted Ln the future

by the Munster or

- a -

any other party.

We give leave to the Minister to discontlnue

the proceedings against the respondent. We reserve all

questions of costs arislng as a result of the grant

that leave and the withdrawal

of the Ninister from the

proceedings. Leave is reserved to any party to make such appllcation in relatlon to those costs as he or it may be advised.

It is next appropriate to glve directions

as to

the future hearing

of the matter. That is something whlch

we wish now to discuss with Counsel.

DRAFT ONLY

UNDERTAKING

WEEREAS:

The

respondent

acknowledges

that registration as an

organisation

employees

pursuant

to the

Conciliatlon

and

Arbitraticn

Act

1904

("the

ACT") confers benefits upon it.

The

respondent:

(1)

recognises

that

such

regls t ra t lon

creates

dut

ies

and

responsibi l i t ies

in regis tered organisat ions inter

aha

t o

utilise

the means provided

the Act for the p revent ion

and

se t t l emen t

industrial disputes

and

o therwise

re f ra in

f rom

conduct

p revent ing

hindermg

the

ach ievemen t of

the ob jec ts oi the Act and

(2)

a f f i rms

its

desire

and

intention

par t lc ipate in the prevent lon

and

se tz lement of such dlspuzes in accordance wi:h

The ACT.

THE RESPONDENT THEREFORE:

HEREGY

UNDERTAKES

the

Federal

Court of Australia and ta t h e

applicants as follows:

comply

with

i ts

obligations

t h e

s a m e

terms

o the r

orgznisat ions oi

employees registered under the Act.

In complying

with

i ts

obligations,

the

organisation

will

necessarily

have regard

to the

pol ic ies

t h e

t rade

union movement

and

i t s

collectlve commitment to such policies.

The

organisat ion

agrees

to honour

i is

commitment

given

in The

t e rms a t t ached

(see Attachment

I ) to

t h e

NaTional Wage Principles

of	the Conclhation and Arbirrayion Commission in i ts declsion dated

23 September 1983.

The

organlsat lon,

as an

expression

of i:s

commitment ,

rezf f i rms

its

preparedness to g ive the under takmgs

t e r m s ai

t h e Memorandum

of Understanding

entered

Into

between

the

Natlonal

Indusrrlal

Consxuct lon

Counci l

and

the

organisat lons

the

bul!dlng

and

ccnstruct ion indusrry (Attachment

2).

comply with i ts

obligations

an organisa t ion reg is te red under

the Ac t 2nd t he t e rms

the

Memorzndum

Understznding,

the

organisaaon

agrees

that

developing

agreements,

policies,

and

guide l ines

for

the

improvement

industrla!

relatlonships

the

bui lding

and

construct ion

industry,

the

pr ime

objecives

b e

considzred are:

set t le

award

dlsputes

manner

consis ten ' t

the

economic

s t ra teg ies

t he

Fede ra l

Governmen t

and

t o

improve The efficiency	and	stability	of	the	buildlng	and
construcilon Industry;

To e l iminate the incidence

widespread intiustria!

action

support of

c la ims ior increased wages

or bet te r condi t ions

o i

employment,

and

minimise

the

level

industrial

disputation over other issues;

achieve wages and condi t ions that

are

fair and equi table

hav ing

r ega rd

t o

t he

state

t h e

e c o n o m y

a n d

t h e

circumstances	prevai l ing	in	the	building	and	construction
industry;

To	introduce an allowance, and to adjust exisring allowances in

accordance

with

past

practice,

recognition

the

substant ia l

changes

which are

implemented

wirhin

the

industry by thls Agreement;

meet

regular ly

consider

emerging

and

recurr ing

industrial

relatlons problems; and

-2-

( f )

rnamtam

dispure

sert l lng

procedures,

i m p n v e

t h e

operat ion oi ;hose procedures.

The organlsation

2grees

commit

i:se!f

to t h e specific

undertaking

in he agree men^

6 .

The

organlsat ion

recognises

that

the

Agreement

set out

At t achmen t

2 has not been able TO

be ful ly implemented, but

(a)

the

organlsat lon

is ,

consls ient

with

the

terms

t h e

Agreement ,	cont	inuing to	confer	to	r each s e t t l emen t	of	t h e
Agreement

and

(b)

the

organisat

ion

undertakes

that

i t s

commitments’

t e r n s of

the

Act

wi l l

the

same

ther

o rganisa t ions

reg is te red

under the Act.

The

undertakings

glven

by ?he organisation are supported by t n e

ACTU as ser out

the

decls ion

t h e ACTU

Executive

(At t achmen t

3).

- 3-

CATCHWORDS

Industrial law - application

dereglster

industrlal

organization

employees

- application

for

leave

discontinue

Minister

for Employment

and

Industrial

Relations - relevant

considerations

- discontinuance of

proceedings by consent.

Federal Court

Australia Act

1976, Order

2 2 , rule

2 of

Rules made thereunder.

AUSTRALIAN FEDERATION OF CONSTRUCTION CONTRACTORS AND ORS. v. THE AUSTRALIAN BUILDING CONSTRUCTION EMPLOYEES’ AND BUILDERS LABOURERS’ FEDERATION

V No. 2 3 of 1981

Coram: Evatt. Sheppard and

Morlms JJ.

Uated: 19 December 1983.and 18 July 1984

Sydney

in relation to those costs as he or it may be advised.

18 July 1984

Sydney

Application discontinued by consent

No order made.

- L -

partles to confer under the chezrmanshlp of Mr. Vostl, a

retired ammissloner of the Australian Conclllatlon and

Arbltratlon Commlssron, to ascertaln whether some agreement

could be reached wnlch rnlqht bring

zndustrlal peace lnto

ths

bulldlng and constructlon lndustry in Australla. The subsequent hlstory of the matter IS recorded. ln the

transcrlpts of the proceedlngs of the Court for

2 1 >larch 1983,

6 Aprll 1983, 16 May 1983 and 31 October last. It LS

summarised at ?p. 3391 -.3?92

=f the tra,lscrlpt for 31 October

1983. .

On 1 2 Cecsmoer 1983 the matter was aqaln in che list.

On that iay

thz +!lrlster of State fsr Znployment and

ir.dustr:al

Xelations souqnt leave to dlscontinue the proceedlcgs. He dld

so because zi?e respondent hes offared an undertaklnq as to

1zs

future cocduct. The undertaklng has been offered as an

undertzklnq to each of the appllcants mcludlnq the :,:lnlscer

and CO "_he Zourr. It 1 s not acceptable to any a3pllcant

c t h e r tnan the ..llnlster. The remalnlnq agpllcacci, who

comprise a ::'Axcer 0 5 emplcyer orqanlsaclons 12 tS.e ?;~1ld1n~

lniustry, by thelr Counsel descrine Lhe mcerta!<lng

2 s :

"neenl-qless, uccercaln, unenforceable and

wnolly unacceptable."

Durlnq cne course of the argumen= wnlch

toolc place

on 1 2 3ecember 1983 2:fflculzles

were raised. oy nesbers

-3% ;surt about 'c:;? Zauzt acceptlnq 'he

unaertaklzg.

7 . : ~

first questl:n

to be Cetermlned ls*;Jhethsr the Court shoulZ

acceFt lt. Ratlar txan set lt out ln tnese r d s o r s Ne have

ap?l;ended

3 copy of che ucdertaklng to them. We have not

- 4 -

accep t s

1 s

m a t t e r

f o r

hlm.

He 1 s not

concerned

w l t h t h e

same

c o n s l d e r a t l o n s a s a r e

we.

?iavlng

c o n s l i e r e d t h e

terms

t h e u n d e r t a k l n g

are s a t l s f l r u cb.at

i t shcu la not be

accepted

as an

under tak lnq

C3 t h e Courz.

I t L S t oo u n c e r t a l n .

:<e do

not

31ve

deca l l ed .

r ea sons

fo r

t h l s

conc lus lon .

I t

1 s

s u f f l c l e n t

to draw	st==.nt:sn	t o a a r a . 1.	I t may have	been	one	thing	l f
it had	s a l d :

I, ."

L >

conply

'.rith

I ts o b l i g a t l s n s a s

c r g a n l s a t l o n	of	employees	reg ls te red u r .der
t h e Acc.

Nlnds may

d l f f ? r 31: t h l s ques t lor . .

6 u t

t n e

v i c e

t h e

under tak lng

In l t s ? r e s e n t

5orm

1s lr. t h e use of

t he

words ,

" i n t h e

s a n e

terms

a s o t h e r o r g a n l z a t l o n s

employees

r e g l s t e r e d w d e r t h e

A c t . "

- 6 -

stlll asked to grant the

Munster leave to dlscontlnue ths

proceedlngs. The appllcation 1s not opposed by the remalnlng

appllcants nor by the respondent. Ordinarily, the Court

w;ll

grant a ?arty leave to dlscontlnue proceedings brought

by ?!m

Frovlded it 1s satsfled that apprcprlate or?ers have been xade rn dolng otnerwise than glvlng effect to an applicatlon for leave co dlscontinue where no other party to the proceedlngs opposed It.

relatlon to costs and tnat no lnjustlce will be caused the

other party by the bringing of fresh proceedlngs If the Court

1 s of oplnlon that it would be unlust that fresh proceedings

Vie have 2aused to conslder, however, the clrcumstznces

of the present

case., It seems to us that an applrcation under

section 143 of the Act for the cancellatlon of the reglstration

of an organlsatron lnvolves questlons

of public policy. There

1 s a questlon ~n our mlnds whether

zn appllcaticn fcr leave

to dlscontrnue such a proceedlnq 1 s go,;nrDed ty the orciilnazy

rules to whlch we nav2 referred. The evldence xhlch we nave

so far nad ln the w.tter

r a l s e s , i n

#>Er

opnlon, ser13us

matters for sonslderatlon. We have nst heard the respocdes;'s

case and the appllcants' case

1s stlll lncornplete, so our

statement 1 s made tentatlvely.

It by no means represents +ny

csncludee 77lew about the evldence we have heard. 3ut

lt 1 s Qur

tsntatlyve -ilew csncernlng that evldence

xnxh has made us

p.uss to consleer whether we shoul2 not lnvestlgate the

questlon of whether conslderatlons of publlc policy

mgnt

mlltate agalnsc o m acceiilng to the Mlnlster's application.

any other party.

Le glve leave to tne Xlnlster to dlscontinue

the proceedings agalnst the respondent. Ze reserve ali

questlons of costs arlslng as a result of the grant

that leave and the

withdrawal of the hnlster from the

proceedlngs. Leave

1 s reserved to any party to xake

such appllcatlon in relation	t3 those ccscs as he or rt
may be advlsed.

It is next approprlace to give Clrecticns as to

the future hearizg of the matter. That 1 s sonethng whlch

we wlsh now to dlscuss wltn Counsel.

Tne

organlsacon,

as an exoresslon of

11s c o m m i t m e n t ,

r e a f f i r z s

lis

preparedness to gwe the undertakrngs

t e rms of

the Memorandum

of Understanolng

entered

Into

betwee1

the

Natlonal

Inousrrlal

Construct ion

Cocncl l

and

the

organlsacons

m the

bui lomg

and

c3nstrluct1on inc!:s:ry

(At tachment 2).

comply wlrh i ts obllgatlons

an organlsat ion

registered

unaer

t h e

Acr

and

the

rerms

the

Memorandum

of Uncersranding,

the

organisarlon

agrees

that In developlng

agreements,

policies,

and

gulael ines

for

the

improvement

mdusrrlal

re!atlonships

t h e

Du:ldmg and

construcrion

Industry,

the prime

oJ!ecrlves

13 b e

consldered are:

se t t le

award

d i sputes

manner

conslstenr

wulth

t h e

economlc

srrategles

t h e

Federal

Government

and

Improve the efl!c:ency	and s t a o L t y of	t h e buldlno, and
constructlon ,ndustr:/;

e!lmrna:e

t h e incidence oi

widesoread Industrial

acrion

support of

c la ims for l rcreased wages or betrer condl t lons

employment,

minimlse

and

t h e

level

mdustr ia i

disputatlon over other Issues;

To achieve wages

and

conaixons

:h? a r e f a r a d equl:able

having

regard

t o

the

s t a t e

?ne

economy

ann

t h e

c l r a m s t a n c e s	preval!.r.g	~n	t h e	x i i l m g	and	CcnstrLcxcn
industry;

To lntroduce an allowance, and to adlust exlsitng a!lowar,ces

accordance

wlth

past

practice,

recognltlon

tne

subsranrlal

changes

whlch

are

be Implemented w.:h:ln

t he

industry by thls Agreement;

TO meet

regularly

consider

emerging

and

reczrr :~g

IndusxlA

relatlons probiens; and

-2-

IN THE FEDERAL COURT OF AUSTRALIA )

)	V No. 2 3 of 1981

VICTORIA

DISTRICT

REGISTRY

) )

INDUSTRIAL DIVISION

)

BETWEEN:

AUSTRALIAN FEDERATION

OF CONSTRUCTION

CONTRACTORS AND OTHERS

Appllcants

THE AUSTRALIAN BIJILDING CONSTRUCTION

EMPLOYEES’ AND BUILDERS LABOURERS’

FEDERATION

ResDondent

CORAM: Evatt. Sheppard and Morllnu

JJ.

DATED:

18 July 1984

STATEPENT ON DISCONTINUAJJCE OF PROCEEDINGS

THE COURT:

The

hearinu

rJf

thls

aFpllcatlon

for

the

deregistratlon of the respondent ‘Jnlc? ccmrenceu In t+ibourne

m November 1982.

Th-. hearlna pro,:eeded 13 Melbourne ,md

Sydney durlnu the balance

tne year and

In Perth

February

i983.

It was to have proceecled

In Melbourne in

March of

that pear, but ar: the request of

tne parties, who

then included the Mlnlster

f o r

Employment and Industrial

Relations,

was

adjourned

enable

dlscussions

and

neqotiations to take place. There was no further hearinu of evldence in 1983. On 12 December 1983, the Mmister applled

for leave t u dlsconcmue the proceedings on

his part. On

3 .

Sub-rule 2 ( 2 ) has no application to the circumstances of this case.

As we

read the rule, the partles are entltled

to take

the

course

announced

counsel

for

the

applicants.

obviates the need for leave to be obtalned. Upon fillnu

Court

the notlce of discontlnuance this mornlng, the

proceedings came to an end.

is therefore inappropriate

for the Court to express any view on the proprlety of the

course the partles

have

taken whether from the polnt of vlew

1 3 f

public

. the

Interest

otherwise.

[1983] FCA 410

19 Dec 1983