Re Electrical Trades Union of Australia and the Amalgamated Metal Workers and Shipwrights Union v the Waterside Workers Federation of Australia [1982] FCA 12; (1982) 56 FLR; 430 (12 February 1982)

FEDERAL COURT OF AUSTRALIA

Re: THE ELECTRICAL TRADES UNION OF AUSTRALIA and THE AMALGAMATED METAL WORKERS
AND SHIPWRIGHTS UNION
And: THE WATERSIDE WORKERS FEDERATION OF AUSTRALIA [1982] FCA 12; (1982) 56 FLR 430
No. 2 of 1979
Jurisdiction - Practice
1 IR 209

COURT

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
INDUSTRIAL DIVISION
Bowen C.J.(1), Evatt(1) and Deane(1) JJ.

CATCHWORDS

Jurisdiction - Undertakings - power of Court to accept undertaking to facilitate conduct of proceedings - Organization giving undertaking to Court - whether circumstances so altered Court should grant leave to withdraw undertaking.

Practice - Federal Court - Undertakings - Organization giving undertaking to court - Power of court to accept under - takings to facilitate conduct of proceedings - Application for leave to withdraw undertaking. Proceedings brought by the applicants for the deregistration of the respondent pursuant to s. 143 of the Conciliation and Arbitration Act 1904 raised the issue of the respondent's right to enrol as members persons eligible for membership of one of the applicants. The respondent sought an adjournment of those proceedings to enable it to amend its membership eligibility rules. The adjournment was granted in 1979 upon the respondent organization, by its counsel, giving a certain undertaking. In 1982 the respondent sought to withdraw the undertaking. It had not succeeded in amending its rules. The applicants sought to enforce the undertaking.

Held: Per curiam - (1) The court had had jurisdiction to accept the undertaking. The undertaking had been directly related to the orderly procedure of the court.

Thomson Australian Holdings Pty. Ltd. v. Trade Practices Commission [1981] HCA 48; (1981), 55 ALJR 614, applied.

(2) As the deregistration proceedings could be brought on for hearing quickly the leave sought by the respondent should not be granted. However, the respondent should be excused from further compliance with the undertaking to the extent that such compliance would involve a contravention of s. 144 of the Conciliation and Arbitration Act 1904.

(3) The orders sought by the applicants should not be made.

HEARING

Sydney, 1982, February 12. 12:2:1982
NOTICE OF MOTION.

The respondent sought to withdraw an undertaking given to the court in proceedings under s. 143 of the Conciliation and Arbitration Act 1904. The applicants sought to enforce the undertaking.

R. C. Kenzie, for the applicants.

J. W. Shaw, for the respondent.

Solicitors for the applicants: Turner Freeman.

Solicitors for the respondent: W. C. Taylor & Scott.

T. J. GINNANE

DECISION

These applications arise in proceedings pursuant to s.143 of the Conciliation and Arbitration Act, 1904 ("the Act"). In those proceedings the Electrical Trades Union of Australia and the Amalgamated Metal Workers and Shipwrights Union ("the Unions") seek orders directed against the Waterside Workers Federation of Australia ("the Federation"). The essential issue between the Unions and the Federation which is involved in the proceedings is whether the Federation is, under its rules, entitled to enrol as members persons who, by virtue of the nature of their employment, are eligible for membership of one or other of the Unions.

The proceedings pursuant to s.143 of the Act were set down to be heard before a Full Court of this Court on 28 February, 1979. On that day, an application that the proceedings be adjourned generally was made on behalf of the Federation. The propounded reason for the requested adjournment was to enable the Federation to set in motion an amendment of its rules which would make clear that membership of the Federation was open to all employees "who are employed in or in connection with stevedoring operations". The Federation's application that the proceedings be stood over generally was opposed. The Court was, however, informed that the Unions would not oppose a general adjournment of the proceedings if an undertaking were offered on behalf of the Federation "to abide by the status quo before October, 1978" and to refuse, in the meantime, to accept tradesmen performing disputed work as members. Ultimately, the proceedings were adjourned generally upon the Federation, by its counsel, giving an undertaking in the following terms:
"subject to any order which may be made under section 144 of the Act, the Federation undertakes that it will not enrol or seek to enrol any person who by virtue of the nature of his employment is eligible for membership of the Electrical Trades Union of Australia or the Amalgamated Metal Workers and Shipwrights Union of Australia provided that the Waterside Workers Federation may enrol or seek to enrol any person who does or proposes to do work at a place of employment which work was prior to 30 October 1978 at such place of employment principally done by members of the Waterside Workers Federation".
The Federation also gave a further undertaking relating to some ancillary matters.

The Federation initiated the appropriate steps to effect the desired amendments to its rules. In due course, application was made to the Industrial Registrar for consent to the proposed alterations. The Federation encountered a number of technical objections and difficulties. The Industrial Registrar gave a preliminary decision on 1 October, 1981 overruling a number of technical objections. A number of objectors sought leave to appeal to the Australian Conciliation and Arbitration Commission under s.88F of the Act. On 4 February, 1982, the Commission (Ludeke J.) upheld the appeal in relation to one of the technical objections. A hearing on the merits by the Industrial Registrar of the Federation's application for consent to the proposed amendments to its rules appears to be still a distant prospect. It is not suggested that the Federation has been guilty of undue delay in seeking to have the desired amendments to its rules effected.

The evidence before the Court indicates that, rightly or wrongly, the Federation, in November and December, 1981, saw added urgency and importance in its claim to enrol among its members persons performing the disputed work. The occasion was a strike by members of the Unions employed as tradesmen by a number of stevedoring companies in the ports of Sydney, Melbourne and Fremantle in support of a wage demand. The result of the strike was gradually to immobilize certain areas of the waterfront by reason of the absence of service to stevedoring equipment. Stevedoring employers applied for and obtained stand-down orders in relation to other waterfront workers, including members of the Federation. On 5 January, 1982, meetings were held in the ports of Sydney, Melbourne and Brisbane by members of the Federation. These meetings passed, inter alia, the following resolution:
"The Federation:-

(a) notify the Federal Court that the Federation is unable to maintain its undertaking to not recruit tradesmen any longer.

(b) notify CTAL that the Federation will demand to cover all tradesmen employed at their new terminal at Port Botany Bay.

(c) immediately commence a recruiting compaign for tradesmen in all stevedoring companies".
It is plain that the contents of this resolution were adopted, and acted upon, by the Federation, notwithstanding the subsequent settlement of the strike by members of the Unions.

The evidence before the Court as to the subsequent actions of the Federation is, not surprisingly, of a somewhat general nature. It may well be that it will be necessary for the Court to consider more detailed evidence on that subject matter in subsequent proceedings. It is plainly undesirable that members of the Court form other than tentative views, at this stage, on the question of the Federation's conduct. It suffices, for present purposes, to say that the evidence before the Court indicates that the Federation has sought to enrol, and actually enrolled, members in breach of the undertaking given on 28 February, 1979 and has acted in a manner which was calculated to bring extreme pressure on some members of the Unions to join the Federation.

There are presently before the Court two applications brought in the s.143 proceedings. The first application is by the Federation. In it, the Federation moves the Court to:
"1. Hear and note the withdrawal by the Respondent of undertakings given by the respondent to the Court in these proceedings on 28 February 1979.

2. Give such directions as may be deemed appropriate consequent upon the said withdrawal".
The second application is by the Unions. In it, the Unions seek certain orders for the enforcement of the Federation's undertaking of 28 February, 1979. The two applications have been heard together.

Mr. Shaw, who appears for the Federation, has not sought to argue that the Federation has continued to observe the terms of the undertaking which it gave on 28 February, 1979. The primary submission which he advanced on behalf of the Federation is that that undertaking is not binding in the way in which an ordinary undertaking to the court is binding for the reason that the Court had no power to accept the undertaking as an undertaking to the Court. That being so, it is said, the undertaking should be seen as being, as it were, no more than an assurance which did not bind.

Underlying the argument that the Court had no power to accept the undertaking, is a submission advanced on behalf of the Federation to the effect that the Court had no jurisdiction to grant an interlocutory injunction to the effect of the undertaking. In the view we take, it is unnecessary to express any view on that underlying submission. The reason for that is that, regardless of whether the Court possessed power to grant an interlocutory injunction in the relevant form, we consider that the Court plainly had jurisdiction to accept the undertaking in question as a basis for the order of adjournment of the proceedings which it made at the request of the Federation. It was submitted that that view is contrary to what was said by the majority of the Full Court of the High Court of Australia in Thomson Australian Holdings Pty. Ltd. v. Trade Practices Commission ((1981) [1981] HCA 48; 37 A.L.R. 66). Examination of the judgment of the majority of the High Court in that case makes clear, however, that that is not so. Indeed, to the contrary, their Honours expressly recognized the exceptional nature of "an undertaking at an interlocutory stage when the undertaking is reasonably related to the orderly procedure of the Court or to the subject matter of the litigation" (ibid, at p.76). The undertaking proffered as the basis of an adjournment, was directly related to the orderly procedure of the court. It was also directly related to the subject matter of the proceedings. It was an undertaking to the Court which the Court had jurisdiction to accept. It bound and continues to bind the Federation.

It was next submitted on behalf of the Federation that, in all the circumstances of the case, the Court should give the Federation leave forthwith to withdraw the undertaking. In support of that submission, the Federation relied upon what it saw as changed circumstances on the waterfront and upon the delay in obtaining consent to the desired amendments to its rules. For their part, the Unions denied that there was any significant change in the conditions on the waterfront and pointed to the fact that senior counsel for the Unions had, in February, 1979, expressly raised the likelihood that it would be a matter of years before finality was reached on the Federation's proposed amendments to its rules. The Unions also relied on the conduct of the Federation in wrongly regarding itself as free from the obligations imposed by its undertaking. The Federation, so the Unions submitted, should be held bound by its undertaking until the s.143 proceedings could be disposed of.

In the view we take, the Federation should not be held indefinitely to the undertaking which it gave on 28 February, 1979. That undertaking was never intended to be perpetual or other than of an interim nature. Notwithstanding the prescience of senior counsel who appeared for the Unions, we consider that the Federation cannot be criticised for failing to anticipate that finality on its desired amendments to its rules would not be reached long before now. On the other hand, the Federation's undertaking was the basis upon which the Unions' s.143 proceedings were adjourned on the Federation's application. It was plainly seen as designed to protect the Unions' position while the s.143 proceedings were delayed at the request of the Federation. It is difficult to see why the Unions should be prejudiced by reason of the Federation's change of heart.

The conclusion which we have reached, in all the circumstances, is that provided the s.143 proceedings can be brought on for hearing expeditiously, the Federation should not, at this stage, be given leave to withdraw its undertaking. The Court has already indicated that those proceedings will be listed for hearing on 1 March next. On the basis that the proceedings will commence on that day, we propose, at this stage, to refuse the application made on behalf of the Federation. It will, however, be open to the Federation to renew its application at the commencement of the hearing of those proceedings.

As Mr. Kenzie who appears for the Unions concedes, his application for orders in support of the Federation's undertaking is beset by a number of difficulties. In particular, the proposed orders would interfere with the rights of individuals whom the Federation has purportedly enrolled as members without those individuals being accorded any opportunity of being heard in this Court. Apart from the effect that they would have on the rights of individuals who have been enrolled as members of the Federation, the proposed orders would not, upon examination, confer upon the Unions any additional rights or protection to that enjoyed under the undertaking which currently binds the Federation. In the circumstances and in view of the fact that the s.143 proceedings are set down to be heard on 1 March next, we consider that it is inappropriate to make the orders sought by the Unions at this stage.

The next matter to which reference should be made is the effect of s.144 of the Act. It was submitted, on behalf of the Federation, that the undertaking which it had given could, if the interpretation of its rules which it intends to propound in the s.143 proceedings, is accepted, involve it in contravention of the provisions of s.144 of the Act. We see force in this submission. Accordingly we indicate that the Court will excuse the Federation from future compliance with the undertaking to the extent to which such compliance would involve a contravention of s.144. It should be expressly stated, however, that this indication of the Court's attitude is plainly of limited effect. It is, for example, difficult to see that it could protect the Federation if, contrary to the general terms of its undertaking, it actively seeks to persuade or coerce any person to apply for membership.

Finally, it should be stressed that we have, in these brief reasons for judgment, deliberately confined our consideration of the relevant facts to what has been necessary to deal with the interlocutory applications presently before the Court. In particular, we have been at pains to form no final views on factual matters going to the merits of the dispute between the Unions and the Federation or as to the conduct of the Federation as regards the undertaking which it gave on 28 February, 1979. Those are matters which may well arise for final decision on more complete evidence either in the s.143 proceedings or in other future proceedings in the Court.

The only formal orders which we propose to make at this stage is to adjourn each application to 1 March, 1982.