|
|
[Home]
[Databases]
[WorldLII]
[Search]
[Feedback]
Federal Court of Australia |
COURT
IN THE FEDERAL COURT OF AUSTRALIACATCHWORDS
Trade Practices Act 1974 - Restrictive Trade Practices - secondary boycott - application pursuant to ss.45D(1A) and 45E(1)(a) and (c) of the Trade Practices Act 1974 - Union imposed ban preventing delivery of stock to the employer of Union members by certain carriers.Conciliation & Arbitration Act 1904 - effect of an agreement pursuant to s.88DC of that Act where not all affected parties notified of the proceedings.
Whether conduct had the purpose of preventing or substantially hindering a third person from engaging in trade or commerce among the States s.45D(1A) - whether a contract, arrangement or understanding contained a provision that had the purpose of preventing or hindering a party thereto from acquiring services from a second person (s.45E(1)(a), or from persons from whom they had previously acquired such goods or services except subject to a condition not previously applicable to such acquisition (s.45E(1)(c).
Trade Practices Act 1974 ss.4F(a), 45D(1A), 45E(1)(a) and (c) Conciliation & Arbitration Act 1904 ss.27, 28, 88DA, 88DB, 88DC, 88DE, 88DF, 88DG.
HEARING
MELBOURNEORDER
THE COURT FINDS THAT1.1 On 11 September 1980 the respondent Thomas Borthwick &
Sons (Pacific) Limited, (Borthwicks) being accustomed to
acquire services from certain carriers including the1.2 That on or about 11 September 1980 Borthwicks arrived at
applicants Gibbins and in and about the carriage of
livestock to its abattoir at Portland and to acquire
livestock from certain persons being farmers or
graziers, including the applicant Baker, made a
contract, herein called the conciliation agreement, with
the respondent Union which contained a provision that
had the purpose of:
(a) preventing Borthwicks from acquiring or
continuing to acquire such services from such
carriers; and
(b) preventing Borthwicks from acquiring or
continuing to acquire livestock from the
applicant Baker and such other farmers and
graziers, except subject to a condition that
such farmers and graziers should, where the
terms of acquisition required that they should
arrange for the transport of such livestock to
Borthwicks, they should not engage for such
transport any carrier who was subject to a ban
imposed by the respondent Union against such
carrier bringing livestock to Borthwicks'
abattoir, or where according to the terms of
acquisition normally applicable to purchases of
livestock by Borthwicks from such farmers and
graziers such farmers and graziers were required
to arrange for the carriage to Borthwicks of the
livestock the subject of such purchases, except
subject to a condition that Borthwicks should
arrange for such carriage, each of such
conditions not being a condition as to which the
acquisition of such livestock had previously
been subject by reason of a contract existing
between Borthwicks and such farmers or graziers
and being a condition as to the manner in which
and as to the terms on which such farmers and
graziers might supply livestock to Borthwicks.
an understanding with the respondent Union that in the1.3 Since the making of the conciliation agreement and
implementation of the conciliation agreement Borthwicks
would not permit carriers or trucks who are or which
were designated by or on behalf of the Union as being
subject to a Union ban against them bringing livestock
onto Borthwicks' abattoir at Portland, to bring stock on
to the abattoir or to be or remain thereon, and would
not require its employees being Union members to unload
or kill such stock or otherwise deal therewith.
arriving at the understanding referred to above1.4 That by reason thereof carriers have suffered loss and
Borthwicks has implemented and given effect to each of
the same in all respects.
damage and the trade and commerce of farmers and1.5 That the respondent Union aided, abetted, counselled and
graziers has been interfered with and they have suffered
damage in consequence thereof.
procured Borthwicks to make the conciliation agreementTHE COURT ORDERS THAT:
and the understanding referred to above and were party
to the making of the same and has at all material times
implemented and insisted upon the implementation thereof
by Borthwicks and that Borthwicks should give full
effect thereto.
1 The application insofar as it relates to s.45D(1A) of
the Trade Practices Act 1974 is dismissed.2. In respect of the application insofar as it relates to
ss.45E(1)(a) and (c) of the Trade Practices Act 1974FURTHER THE COURT ORDERS THAT:
judgment be entered for the applicants.
agents be restrained from:4. The respondent Union by its officers, officials or
(a) implementing or giving effect to the conciliation
agreement or the understanding referred to above
by refraining from or failing, pursuant thereto,
to acquire from the applicants Gibbins services in
and about the carriage of livestock;
(b) implementing or giving effect to the conciliation
agreement or the understanding referred to above
by refraining or failing pursuant to such
agreement or understanding to acquire from a
carrier the subject of the ban by the Union
against such carrier bringing livestock onto
Borthwicks' abattoir, services in and about the
carriage of livestock;
(c) directing or procuring, consenting to or
acquiescing in a refusal or failure by its
employees being members of the respondent Union to
unload or kill or otherwise deal with stock
brought to Borthwicks' abattoir at Portland by a
carrier or in a truck who or which are subject to
a Union ban, relating to or connected with the
conciliation agreement or understanding referred
to above, against the delivery by him or it to the
abattoir of livestock in the ordinary course of
business of the abattoir and from being directly
or indirectly knowingly concerned in or party to
any such refusal or failure.
(d) implementing or giving effect, or being knowingly
concerned in the implementation or giving effect
to the conciliation agreement or the understanding
between Borthwicks and the Union that carriers and
trucks designated by the Union as banned from
coming onto or delivering livestock to Borthwicks'
abattoir at Portland by withdrawing or refusing
permission to such carriers or trucks to be or
remain on such abattoir consenting or acquiescing
in or being a party to the refusal or failure to
unload stock brought to the abattoir by such
carriers or on such trucks or to kill the same;
(e) from instructing its employees or agents concerned
with the purchase of stock for Borthwicks or the
carriage of stock to Borthwicks' abattoir:
(i) that the carriers to be engaged for such
carriage shall only be those not the subject
of a ban of the respondent Union against them
bringing stock to Borthwicks' abattoir at
Portland; or
(ii) that they should inform vendors of stock to
Borthwicks that for the carriage of such
stock the carrier or carriers to be engaged
shall be only such as is or are not subject
to a ban of the respondent Union against him
or them bringing stock to Borthwicks'
abattoir at Portland.
(f) from permitting its employees or agents concerned
with the purchase of stock for Borthwicks or the
carriage of stock to Borthwicks' abattoir at
Portland to be or remain of the belief or
understanding that it is part of their duty or
function to engage for carriage to the abattoir
only carriers not subject to the abovementioned
ban, or to inform vendors of stock to Borthwicks
that they should engage to carry the same to the
abattoir only carriers not subject to such ban;
members, servants or agents and the respondents Arthur5. The respondents to pay the applicants' costs of this
Bird, John Kenneth Brunt, Walter F. Curran, Bert
Hutchins and Jack O'Toole be restrained from
implementing or giving effect to or complying with the
provisions of the conciliation agreement between
Borthwicks and the respondent Union dated 11 September
1980 or the understanding referred to above between
Borthwicks and the Union:
(a) by directing or procuring the employees of
Borthwicks at its abattoirs at Portland to refuse
or fail to unload stock which is brought onto
Borthwicks' abattoir at Portland by a carrier or
in a truck who or which is subject to a Union ban
against the carriage or delivery by him or it to
the abattoir of livestock or to refuse or fail to
kill or otherwise deal with such stock in the
ordinary course of the conduct of the abattoir or
from being directly or indirectly knowingly
concerned in or party to any such refusal or
failure;
(b) by engaging or being concerned in any way in
conduct by way of implementing, promoting or
enforcing the provisions of the conciliation
agreement between the Union and Borthwicks dated
11 September 1980 or the understanding between it
and Borthwicks referred to above or the exclusion
from employment by Borthwicks or farmers who sell
stock to Borthwicks of carriers who are subject to
a ban by the respondent Union against them
bringing livestock to Borthwicks' abattoir at
Portland.
application excluding any costs exclusively referrable6. That the applicants pay to the first to sixth
to the issue arising under s.45D(1A) of the Trade
Practices Act 1974, but including any reserved costs.
respondents the costs incurred by them which were7. There be liberty to all parties to apply with reference
referrable exclusively to the issues arising under
s.45D(1A) of the Trade Practices Act 1974 such costs to
be set off against costs payable by them to the
applicants.
to the content of any injunction which may be made onNOTE: Settlement and entry of Orders is dealt with in 0.36 of the Rules of the Court.
the findings herein and generally.
DECISION
Lawrence Noel Gibbins, Marlene June Gibbins and Dale Stehr Baker seek relief against the Australasian Meat Industry Employees' Union (the Union) and Thomas Borthwick and Sons (Pacific) Ltd. (Borthwicks) pursuant to the provisions of Part VI of the Trade Practices Act 1974 (the Act) in respect of alleged contraventions of provisions of Part IV of the Act.2. Against the Union the applicants allege contravention by it of the provisions of s.45D(1A). Against Borthwicks they allege contraventions of ss.45E(1)(a) and (c). Each respondent is alleged to be a party knowingly concerned within the meaning of s.80(1) of the Act, in the contraventions alleged to have been committed by the other.
3. At all material times Mr. and Mrs. Gibbins have carried on business as carriers of livestock and other items for farmers and others and they still carry on that business. Mr. Baker has carried on business as a grazier on a property in South Australia, and Borthwicks have carried on the business of conducting abattoirs at Portland and Brooklyn in Victoria and elsewhere.
4. The Union is an organization of employees registered as such under the Conciliation and Arbitration Act 1904 (C & A Act). At all material times members of the Union have been engaged as drovers, slaughtermen or otherwise as employees of Borthwicks.
5. The events giving rise to these proceedings revolve around the abattoir conducted by Borthwicks at Portland. But they had their origin in the circumstance that from some years before 1980 until the present time there has been carried on in Australia the business of exporting live sheep by ship to Middle Eastern countries. Some ships engaged in this trade berth and receive their cargo of live sheep at Portland harbour. The Union objects to the export of live sheep because it reduces the amount of slaughtering to be carried out in Australia and, in that way, reduces the numbers of the members of the Union who can be employed in Australia.
6. There is a body of opinion in Australia which objects to the export of live sheep to the Middle East on the ground that it involves cruelty to sheep both in the course of transport and the killing thereof according to Middle Eastern practices. But it is not on that ground that the Union objects to it. And the export trade in live sheep is perfectly lawful.
7. In 1980 the Union decided to take active steps to s or reduce the loading of live sheep at Portland. For this purpose it set up picket lines obstructing access to the ship by trucks carrying live sheep. There were confrontations between Union members in the picket lines and truck drivers and some violence. The truck drivers who delivered sheep to the ships had to cross the picket lines and did so. Those same drivers and carriers for whom they drove were also accustomed to deliver livestock to Borthwicks' abattoir at Portland and sometimes delivered stock to Borthwicks' abattoir at Brooklyn. The Union adopted a policy that its members should refuse to unload stock at the abattoir in Portland if it was brought there by a carrier or driver or in a truck who or which had crossed the picket line. Such carrier drivers and trucks were declared black. This policy caused great inconvenience and loss to Borthwicks and to the farmers who sold and delivered stock to Borthwicks and to the carriers of such stock.
8. In August 1980 Borthwicks instituted proceedings seeking an injunction under s.80 of the Act restraining the Union and officers of the Union from engaging in conduct in contravention of s.45D of the Act. Orders were sought restraining the Union and the respondents Curran and Brunt and other officers of the Union from conduct which hindered or prevented some 22 farmers and graziers from whom the respondent Borthwick was accustomed to purchase livestock supplying livestock to Borthwicks, and from conduct which hindered or prevented some thirty persons who were accustomed to supply such services from supplying livestock carrier services to Borthwicks or other persons including the 22 farmers and graziers referred to above being persons desirous of acquiring such carrier services. The extent of disruption brought about by the conduct of the Union to Borthwicks, farmers and carriers may be seen by references to the evidence filed by Borthwicks in such proceedings.
9. In support of Borthwicks' application it was sworn by Mr. Keith McDonald
the Manager of Borthwicks that:
"6. The AMIEU is engaged in a campaign to10. In further support of Borthwick's application it was sworn by Mr. Bean its Industrial officer that:
stop or limit the exports of live sheep
from Australia ... The campaign reached
its climax during the months of April,
June and July this year with AMIEU
demonstrations and picketing of
livestock carriers delivering from the
Portland feed lot to the wharf at
Portland. It is apparent that the AMIEU
recorded the names of the various
carriers employed by Portland Lot
Feeders (of Australia) Pty. Ltd. for
these deliveries and placed these names
on a `banned list'. ...
...
10. From inquiries I have made within the
meat processing industry I am informed
by various company executives and union
officials, and verily believe, that
members of the AMIEU refuse to handle or
process stock delivered by carriers on
the said lists and that the bans prevent
those carriers from delivering livestock
to all meat processing plants within the
State of Victoria.
11. Although the present production is, as
is usual for this time of the year, only
some 50% of the seasonal peak, which is
between October and March, the supply of
livestock from farmers to the
Applicant's Portland works is at present
precarious because of the few carriers
available following the AMIEU 'bans'
referred to above and in the said
Affidavit of Mr. Bean.
12. The available carriers not on the
`banned list' will not be able to carry
the livestock which farmers in the
Western District of Victoria will seek
to sell to the Applicant at Portland and
the Applicant will require to operate at
its normal capacity during 'the season'
between October 1980 and March 1981 at
Portland. ...
...
19. Farmers in the Western District are
angry and frustrated by the bans on the
carriers and have communicated this to
the Applicant in the strongest terms.
Now produced and shown to me and marked
with the letters 'KAMcD 8' is the letter
dated 16th June, 1980 to the Applicant
from the Glenelg Pastoral District
Council of the Victorian Farmers and
Graziers Association.
...
21. From the information available to me I
believe that :
(a) farmers in the Western District
who are seeking to sell livestock
to the Applicant at Portland are
suffering substantial loss and
damage to their business by reason
of the bans;
(b) carriers who operate in the
Western District who are seeking
to transport livestock for farmers
to the Applicant at Portland, and
who are the subject of the ban,
are suffering substantial loss and
damage to their business; and
(c) the Applicant is suffering and
will suffer substantial loss and
damage to its business by reason
of the ban.
..."
"10 I then showed the list to the AMIEU11. By letter dated 6 August 1980 acting pursuant to s.88DB of the C & A Act Borthwicks by their solicitors, notified the President of the Conciliation & Arbitration Commission of the institution of the proceedings in the Federal Court. It would appear that for the purposes of Division 5A of the C & A Act, the existence of the proceedings in the Federal Court is presumed to create or involve a dispute to which Division 5A of the C & A Act applies. On this basis by virtue of s.88DC of that Division the Conciliation & Arbitration Commission became empowered to "settle that dispute by conciliation". Procedural steps to institute such a settlement were taken and the settlement proceedings commenced under the chairmanship of a Deputy President of the Commission. By virtue of s.88DF(1), the powers of the Commission in any such proceeding are those only in Division 1 of the C & A Act which were not within the provisions of that Division that relate to arbitration or to the making of awards or the certifying of agreements. Accordingly the powers of the Commission were limited to encouraging settlement of the dispute, arranging conferences of the parties and their representatives either presided over by a member or between themselves. Convening a compulsory conference at which persons designated by the Commission are required to attend including persons whose presence at the conference the relevant member of the Commission thinks is likely to conduce to the prevention or settlement of the dispute (s.27) and possibly, by order, certifying any memorandum of agreement arrived at by the parties to the dispute (s.28(1)). But of course no such certification could take effect as an award. If an agreement be reached it is enforceable, if at all, only according to the law of contract.
delegate for the works, the Respondent
John Brunt, and his assistant, the
Respondent Gordon Smith, and they both
told me that if any of the carriers on
the list brought livestock to the works
their vehicles would not be unloaded.
On my instructions, the said list was
then typed. Now produced and shown to
me and marked with the letters 'RAB1' is
a copy of the said typed list. I made
it clear to Mr. Brunt and Mr. Smith that
the Applicant could not and did not
undertake not to use any of the
black-listed carriers.
...
12. At about 1.10 p.m. on Friday 16th May,
1980 I spoke to the Respondent Brunt
with respect to an expanded list of
black-listed carriers which was stated
by him to be an accurate list of
carriers who would not be unloaded by
members of the AMIEU if they brought
livestock to 'Portland'. ... Also
present during this conversation were
Mr. John Woolcock, Branch Manager of the
Applicant and Mr. Robert Taylor. Mr.
Brunt further said words to the effect
that the carriers would not be unloaded
by union labour and if they were
unloaded by staff employees, members of
the AMIEU would refuse to treat the
stock. Mr. John Woolcock, in my
presence, explained to Mr. Brunt that
there were significant difficulties in
providing sufficient stock for slaughter
without using some of the carriers who
had been black-listed particularly as
the slaughtering season proceeded with
increased numbers of stock. Mr. Brunt
replied that AMIEU members had been told
by the Respondent Sparks that the
black-listed carriers would be banned
from every meatworks in Australia
because they had broken the picket line
and there was 'no way' the ban would be
lifted. In addition, Mr. Brunt stated
that he personally would not care if the
Portland works were closed down for so
long that cobwebs grew all over it.
AMIEU members undertake the handling of
livestock and slaughtering and
butchering at 'Portland'. The
Applicant's works at Portland cannot
operate without these functions being
performed.
...
14. On Monday 19th May there was no
production at the Portland works of the
Applicant, but in accordance with the
usual practice, a drover, the Respondent
Robertson, employed by the Applicant and
a member of the AMIEU was on duty to
receive stock brought to the works to
provide the next day's kill. I was
informed on that day by Mr. Peter Wilson
a livestock carrier, that he was
delivering approximately 370 lambs to
the works on account of a Mr. Reg
Hedditch and that the drover on duty had
refused to unload the lambs. At
approximately 1.40 p.m. on that day, I
interviewed Mr. Robertson who stated
that he would not unload Mr. Wilson's
transport and that he had been told to
refuse to unload stock from any carriers
on the black-list by the AMIEU's
Departmental delegate, the said
Hutchins. I asked Robertson what would
happen if he did unload the vehicle and
he stated 'Bert (i.e. the said Hutchins)
told me my job would be in jeopardy'. I
told him that his job could be
jeopardised by refusing to unload the
vehicle.
15. On Tuesday 20th May Mr. Brunt gave me a
copy of the notice headed 'Urgent
Notice' dated 15th May, 1980. ... Later
that morning, Mr. Brunt removed some
photocopies of this notice from my desk
and told me to keep the list so that the
Applicant would know the names of the
carriers whose vehicle the AMIEU members
would refuse to unload but to remove the
instructions on the notice because it
may contravene the Trade Practices Act.
...
18. I was present at a discussion between
Mr. K.A. McDonald, the Applicant's
Southern Regional Manager and the
Respondent Smith (the AMIEU's assistant
works delegate at 'Portland') on
Wednesday, 4th June, 1980. Mr. McDonald
said that the union's actions were
putting the works in jeopardy because
the bans on the supply of stock were
restricting the Applicant's production
by limiting the numbers of livestock for
processing and therefore restricting the
work that was available to employees.
Smith said he was concerned but that the
men would maintain the bans against the
carriers on the list unless the Union's
demands on live sheep exports were met.
... Further, on 23rd June, 1980
discussions were held between a
delegation of Portland members of the
AMIEU and the Prime Minister. After
that meeting, Mr. Brunt informed me of
this meeting and said that it had been
agreed that there would be a meeting of
interested parties in relation to the
live sheep dispute within a month
provided that the members agreed not to
picket shipments and to lift their ban
on livestock carriers until that meeting
was held. He told me that there was 'no
way' the ban on carriers would be
lifted. ...
...
20. On Thursday 3rd July, 1980 I had a
conversation with the Branch Manager
which resulted in me interviewing the
drover on duty, the Respondent
Robertson, in the office of the
livestock foreman. I asked Mr.
Robertson to unload a delivery of 18
cattle brought to the works by a
carrier, a Mr. E. Cameron. Mr.
Robertson refused ... I then told Mr.
Robertson that he was being asked to
perform only his normal duties and that
if he refused I would take disciplinary
action. He again refused to unload the
cattle from Mr. Cameron's vehicle and
stated that he did not believe that the
company could suspend him. I then
informed Mr. Robertson that he was
suspended for the remainder of the day
and until 4.00 p.m. the following day.
This was done in accordance with the
provisions of the Meat Processing
Interim Award 1973 under which he and
the vast majority of AMIEU employees at
'Portland' work. ... Staff members of
the Applicant unloaded the cattle and
AMIEU members refused to process them
and staff members were later obliged to
load the cattle onto vehicles for
transport to a property owned by the
Applicant as Union members would not
feed the stock at Portland.
21. ... Mr. Brunt then came to the works and
asked me to rescind the suspension. I
refused to do so. A little later Mr.
Brunt informed me that night cleaners,
laundry employees and the afternoon
shift drover would not work for the
remainder of the day and they did not.
He told me that the drovers would not
start work on the next day, the 4th
July, and that no members of the AMIEU
would work before a general meeting of
members was held at 7.30 a.m. on the
following morning.
22. ... on the 4th July and at the general
meeting of AMIEU members at Portland it
was resolved that they would withdraw
their labour until the termination of
the period of suspension of the drover
Mr. Robertson and that any future action
against members of AMIEU for refusing to
unload black-listed carriers would
result in all AMIEU members employed by
the Applicant ceasing work for the
duration of any such suspension. ...
23. On 8th July, 1980 Mr. Brunt told me in
the presence of the Applicant's Branch
Manager of Portland that the full
Victorian Executive of the AMIEU had
chartered a 'plane to fly to the town of
Portland and there met AMIEU
departmental delegates in Portland on
7th July, 1980 and that the Union was
not interested in being informed of any
difficulties that the Applicant might
have in providing stock for slaughter
because of the ban on black-listed
carriers. Mr. Brunt further informed me
and the branch manager that if it was
the Applicant's intention to close the
Portland works it should say when it was
going to do so and not make any threats.
In doing so, however, the Applicant
should keep in mind that if the Portland
works were closed then the Applicant's
Brooklyn works would be affected.
Further, Mr. Brunt informed me and the
branch manager that if the Portland
works stopped buying calves for
slaughter because of the ban on
black-listed carriers, then a shop
committee meeting would be held at the
Applicant's Brooklyn works and that the
members of the AMIEU at Brooklyn would
cease slaughtering calves at Brooklyn.
...
25. The Applicant depends on a supply of
livestock to 'Portland' to maintain its
slaughtering, processing and freezing of
meat business at Portland. The effect
of the bans is to constantly place at
risk the supply of livestock to
'Portland' and accordingly place the
whole enterprise in jeopardy. At the
present time the season is at a 'low'
and 'Portland' is operating at about 50%
of its annual peak. This would normally
reach its peak about October. The
effectiveness of the bans on the
business at Portland will increase as
the potential supply of stock rises
during the next three months.
'Portland' is a large enterprise
employing up to 1,150 persons.
26. I was informed by the said Mr. Robert
Taylor, the Applicant's livestock
manager, on the 30th July, 1980, and
verily believe that the maintenance of
the supply of stock to 'Portland' is
tenuous and causing him grave concern
and that as the available supply rises
due to the normal 100% increase in
available stock between now and October
the 'permitted' carriers available to
Western District farmers will not be
able to maintain supplies of livestock
to 'Portland' and that no alternative
forms of transport will be able to cope
with the situation. I am further
informed by Mr. Robert Taylor and verily
believe that most livestock carriers in
the Western District of Victoria are on
the black list and that certainly there
are less than half a dozen livestock
carriers remaining who are not on it."
12. The Union and Borthwicks attended the proceedings before the Deputy President. Each was represented by counsel, Mr. Rowlands now his Honour Judge Rowlands appeared for Borthwicks and Mr. Cooney, now Senator Cooney appeared for the Union. In attendance also were Mr. Walter Curran the Secretary of the Union and Mr. Stouppo the Industrial Officer of Borthwicks. The parties negotiated the issue between them. That was whether, if trucks which were "black" or truck owners or drivers who were said to have crossed the picket line and were included in a banned list (black list) brought stock on to the abattoir premises, employees being members of the Union should be required to unload them. When the negotiations commenced they appear to have been conducted with relation to individuals who were carriers rather than trucks. There were some thirty carriers with respect to whom the Union said that its members would not unload the stock brought by them to Borthwicks and would not kill such stock if they were unloaded or having arrived in a banned truck and been turned away, later came in some other way on to the works. Those carriers were under the Union ban. Borthwicks sought to induce the Union to lift its ban with respect to all carriers. It made some headway. The Union agreed to lift the ban with respect to all the named carriers save eight. The applicant Gibbins was one of those with respect to whom the ban was lifted. It is clear however that the lifting of the ban in respect of the carriers was merely conditional, they were to be given "a second chance".
13. As to the carriers with respect to whom the ban was not lifted Borthwicks agreed that they "would not be invited" onto its abattoir and that if a truck of any such carrier was brought to the premises Borthwick would not require its employees, being members of the Union, to unload the stock thereon. The notion of a second chance was understood as a real Union threat of a renewed ban against any carrier who carried sheep to a ship. This is apparent from the circumstance that it was agreed between the Union and Borthwicks that if any carrier "failed to observe the spirit of co-operation" then he was not to be "invited" or engaged by Borthwicks to come onto the abattoir and the Union members would not be required to unload or kill stock brought by him to the abattoir.
14. Neither Mr. & Mrs. Gibbins nor Mr. Baker were present or had any knowledge of this agreement. Nor it would seem were or did any other carriers, even those remaining banned. Section 88DE of the C & A Act provides that the parties to a proceeding under s.88DC are the immediate parties involved and, if the dispute relates to conduct in relation to the supply of goods or services to, or the acquisition of goods or services from a person, called an "affected person", that that person is a party. Clearly all the applicants were affected persons and so were the other carriers and the farmers and graziers. Section 88DE(3) provides that the Registrar shall give notice of a proceeding in relation to a dispute the subject of conciliation proceedings under Division 5A to every person who is a party to the proceeding by virtue of s.88DC (1)(e) and (f), namely, the affected parties. It is said that a telegram was sent to the Victorian Farmers Federation giving notice of the conciliation proceedings. In respect of the applicants this could not operate as a compliance with s.88DE(1)(d). The applicants were not members of the Victorian Farmers Federation, and it had no responsibility in relation to them. Nor was it likely that any of the affected carriers were members of that Federation.
15. The agreement mentioned above which I call the conciliation agreement was
reached between Borthwicks and the Union. The terms
of the agreement were
reduced to writing and were delivered to the Deputy President with a request
that he should retain custody
thereof and regard them as confidential. The
agreement was as follows:
1. It is accepted that for many and varied16. In relation to the proposal to resolve the conciliation proceedings along those lines the Deputy President made a statement, described as being made in confidence. He stated:
reasons put by the union and for valid
commercial reasons, the company feels it
necessary, if things are to become
normal at its Brooklyn and Portland
works, that for industrial relations
reasons those people known to the
company, not be invited or engaged to
come on to the works, nor will the
company, or any of its agents, require
members of the union to attend those
known persons.
2. The company agrees to give work to M.
Pye and D. Quayle, providing their rates
are competitive.
3. It is accepted that persons other than
the parties who have involved themselves
in the process of conciliation over this
matter should respect the need not to
cause further provocation. Therefore,
for valid commercial reasons, the
company accepts the fact that should
stock carriers not recognise the union's
picket lines over live sheep, then the
company will accept the fact that these
persons are not accepting the spirit of
conciliation and will see these persons
as an antagonistic factor to a
continuing resolution of the industrial
relations problem and will not invite or
engage such people to come on to the
works, or require the members of the
union to be involved with such people.
Should any persons shown by proof to be
involved in dealing with the people
known to the company covered by this
resolution in collusion to defeat the
spirit of this resolution, then for
valid commercial reasons they will join
those people whom the company does not
invite or engage to come on the works,
nor will the company, or any of its
agents require members of the union to
attend such persons.
4. The settlement shall operate for no less
than 12 months. The Company, for
reasons of its own, may want to discuss
the settlement. This does not imply any
commitment by the union in this matter.
5. It is agreed in the terms of this
settlement that the company will
withdraw its current writ under Section
45D of the act, and that the company
agrees that it will not support or
encourage any action against the union
or its officers or members in relation
to the Trade Practices Act or any other
Act that may be applicable, either by
itself, or by its subsidiary, or other
persons or groups in relation to the
matters the subject of this resolution.
6. The members of the union will be paid
for a 1 hour stopwork meeting on the
15th September, 1980.
"It would appear from private discussions17. It may be observed that although, as between Borthwicks and the Union there might have been some element of propriety, there was grave risk that the resolution was made in contravention of ss.45D or 45E of the Act. In addition the agreement represented a complete surrender to the Union demand that because certain carriers carried on their lawful occupation by carrying live sheep to the ships their occupation as carriers to abattoirs should be destroyed. That surrender was made at the expense of the absent persons affected thereby and one can only wonder how that aspect of the matter could be proper. The reference to the lack of interest shown by "others who are involved in this matter" failed to recognise the fact that those others were in complete ignorance of the proceedings. The final sentence is obscure and appears to be directed to persons who will never be informed of it. The only meaning to be attributed to it is that it is a declaration that if carriers desire to do business with Borthwicks they must cease to carry stock to the ships in the Middle Eastern trade. The reference to persons subject to this policy, as persons "who may not benefit" from the proposed resolution of the dispute, is a naive and ingenuous description of persons who are to suffer in their livelihood by being directly excluded from the ordinary exercise of one aspect of their lawful occupation.
with the parties, that both of the parties
have shown a genuine desire to settle the
problem that confronts them. The parties
have involved themselves in the task of
reaching a settlement and should be assisted
in that aim.
The company, because of the problems that it
had, sought resolution by an application
under the Trade Practices Act, Section 45 D,
but notified the President of the
Conciliation and Arbitration Commission under
Section 88 D B of the Conciliation and
Arbitration Act of their action and sought
conciliation by a Presidential member of this
Commission. The Union's position was that it
was unable to participate in the conciliation
process while the Trade Practices proceedings
remained active. I recommend for industrial
relations reasons that the application under
the Trade Practices Act be withdrawn. I have
privately been informed of the proposed
resolution to the problem and am prepared to
say to the parties that they should each work
towards having this resolution carried out.
Having regard to the complexity of the
problem confronting the parties I am prepared
to say that what has been reported to me as a
resolution of the dispute could only be
regarded as proper in the circumstances and I
recommend it.
I should note that the drivers who are
involved in this matter have neither appeared
nor shown any interest in the proceedings
before me. However, I would hope that
persons who may not benefit by this
resolution and desire to do so would be able
to put themselves into a position where their
differences were resolved with the employees
at Portland consistent with the resolution of
the dispute and that this should happen as
soon as practical.
BY THE COMMISSION
(signed)
Deputy President"
18. It is contended on behalf of the respondent that the institution and resolution by agreement of the proceedings described above operated to discharge or relieve the persons who made the agreement from liability to the applicants which might otherwise have attached to them under ss.45D or 45E in respect of conduct engaged in by them in making or engaging in conduct pursuant to that agreement. It was said that such discharge or release operated although, such conduct constituted a contravention of a provision of one or other of those sections in respect of which the applicants or any of them would, according to the terms of the Act have been entitled to relief under the Act. I am unable to accept this submission.
19. Part 5A of the C & A Act is designed to provide an opportunity to parties to a proceeding under ss.45D or 45E to bring the dispute between them before a member of the Commission with a view to conciliation and possible resolution thereby of the dispute. Clearly, if in an atmosphere of conciliation an agreement of a practical nature can be negotiated and the delays, costs and inconvenience of an action at law be avoided, that is a consummation devoutly to be wished. And if the parties to the Federal Court proceedings agreed on terms resolving the dispute between them in that Court, then those proceedings would conclude accordingly.
20. But what is contended is that an agreement arrived at by a conciliation proceeding exclusively between the parties to a proceeding in the Federal Court, for instance between an employer and his employees and their Union, provides immunity to those parties in respect of conduct engaged in by them in making that agreement or pursuant to it from liability to other persons under ss.45D or 45E if that conduct constituted a contravention thereof. It would be surprising and hardly in accordance with justice if it did. It would require clear words to support the existence of an intention in Parliament to bring about such a result. There are no such clear words. The nearest express provision is that of s.88DC(1) which provides that the Commission may settle the dispute by conciliation. But the important words are "by conciliation". Conciliation is a process of resolving a dispute by negotiation and agreement. Once an agreement is reached the process is complete. The agreement is but an agreement enforceable at law according to its terms not under the C & A Act. Those entities who are parties to the agreement are bound by it, but it does not affect the legal rights or liabilities of entities not being parties to it.
21. The absence of power in the Commission to make the agreement an award or to introduce it into an award reflects this. And s.88DG of the C & A Act appears to put the matter beyond doubt. It provides, "Nothing in this Division affects the operation of the Trade Practices Act 1974". That is not to say that parties to proceedings under the Act cannot by conciliation negotiate their rights and liabilities under the Act and waive or discharge them by agreement. But it is to say that nothing done under the Division will in the absence of such waiver or discharge by the persons concerned affect the provisions of the Act which govern the conduct of persons or confer rights and impose liabilities. Neither counsel for the Union nor for Borthwicks was able to enunciate with any conviction the effect of s.88DG on any other basis.
22. In addition the provisions of s.45E(2) of the Act point strongly against
the applicant's submission. It provides:
"(2) Sub-section (1) does not apply inThe substance of this provision is neatly encapsulated in the CCH heading thereof, namely, "Consent of target". Where "the target" consents in writing to a contract, arrangement or understanding between other parties which affects him, or is a party thereto, then, although that contract, arrangement or understanding would otherwise be proscribed by s.45E(1), that section does not apply to it. If, as is contended by the applicants in this proceeding the agreement arrived at by conciliation under s.88DC of the C & A Act is a contract, arrangement or understanding within the proscription of s.45E(1) it is clear that relief from the rights of the target arising in consequences of the making of such a contract, arrangement or understanding will not be affected. And if it is shown that there was and is a contract, arrangement or understanding between Borthwicks and the Union which contravenes the provisions of s.45E(1) of the Act, then, the applicants not being parties thereto or having consented in writing thereto, s.45E(1) applies to it in full force. It may be asked why there is no provision concerning s.45D in similar terms to s.45E(2). The answer is that if there are conciliaton proceedings under Division 5A of Part III of the C & A Act arising out of a proceeding in the Federal Court under s.45D) the "target" party is inevitably a party thereto.
relation to a contract, arrangement or
understanding that is in writing if the
second person mentioned in that sub-section
is a party to the contract, arrangement or
understanding or has consented in writing to
the contract or arrangement being made or the
understanding being arrived at."
23. In my opinion it is manifestly clear that in the absence of agreement by
a party concerned, conciliation proceedings under Part
5A have no effect upon
the rights and liabilities of such party.
The claim against the Union and its Officers under s.45D(1A)
24. Section 45D(1A) is in the following terms:
"(1A) Subject to this section, a person shallIt is not difficult to conclude that the Union and its officers engaged in conduct for the purpose and having the likely effect of preventing or substantially hindering a third person, not being an employee of the Union or of Borthwicks from engaging in trade or commerce. The purpose of the arrangement arrived at in the conciliation proceedings under s.88DC of the C & A Act was to exclude named persons, and others who might be named in the future if they carried livestock to the ships at Portland, from trade or commerce constituted by delivering livestock to Borthwicks' abattoirs at Portland and Brooklyn. Such persons were not to be "invited" by Borthwicks onto the works, and if they arrived there carrying stock to be killed, the employees of Borthwicks being members of the Union were not to be required to unload or kill the stock so brought on. That this arrangement was intended and calculated to prevent or substantially hinder the carriers of livestock, already named or to be named, in their trade and commerce is obvious. It effectively excluded them from carrying on the business of carrying stock to Borthwicks. In that respect the purpose was unrelated to the type of trade or commerce being conducted by any carrier save that aspect thereof which concerned delivery of stock to Borthwicks. The ban was on persons having a particular characteristic, namely, that they had delivered stock at the wharf or crossed the picket line established to prevent such deliveries.
not, in concert with another person, engage
in conduct for the purpose, and having or
likely to have the effect, of preventing or
substantially hindering a third person (not
being an employer of the first mentioned
person) from engaging in trade or commerce -
(a) between Australia and places outside
Australia;
(b) among the States; or
(c) within a Territory, between a State and
a Territory or between two Territories."
25. There was also another purpose of the conciliation agreement. That was to discourage carriers from carrying sheep to the wharf. Indeed that was the primary purpose. It was of little use to the Union to exclude carriers from delivering stock to Borthwicks if the delivery of sheep to the wharf was not prevented or substantially hindered. Thus the purpose included hindering or preventing the export of live sheep to locations overseas. But Mr. Dalton Q.C. for the applicants did not rely upon this purpose for the good reason, no doubt, that it was not and probably could not be established that the delivery of sheep to the wharf was in the course of trade between Australia and a place outside Australia. The ultimate fate of the sheep was to be transported in the course of such trade, but there is no evidence that the sheep were sold by their owners otherwise than to purchasers in Australia or that the contracts under which the sheep were delivered by the carrier were other than contracts between the carrier and a person in Australia. Delivery of the sheep to that person or onto the ships in accordance with his directions took place in Australia. And section 45D(1A) is concerned with agreements hindering or preventing the "target" person himself in his overseas or interstate trade.
26. But of course the trade of farmers and of carriers which was likely to be hindered or prevented by the agreement would inevitably include trade among the States. And the trade involving the sale of sheep by the applicant Baker to Borthwicks in 1985 and the carriage of those sheep by the applicant Lawrence Gibbins from South Australia to Borthwicks which suffered a direct hindrance pursuant to the agreement between the Union and Borthwicks was a direct interference of trade among the States both of the applicant Baker and the applicant Gibbins. Having regard to the nature and volume of Borthwicks business that must have been true in relation to other vendors and carriers of stock to Borthwicks. And it is said that the purpose of the conduct in question was to hinder that trade. In a sense that is true. But it is also true that the purpose of hindering that trade was not related to its interstate characteristic. It was related to the conduct of the carrier in having passed the picket line. As a result of that one aspect of the trade of the carrier and the farmer were intended to be hindered or prevented whether it was trade among the States or trade intra-State.
27. In relation to that intended hindrance or prevention it is not shown that
the conduct was engaged in with any thought as to whether
the trade struck at
was interstate trade or any sort of trade other than that it was the carriage
of livestock to Borthwicks by a
banned carrier. Can it be said that conduct
engaged in in such circumstances was engaged in for the purpose of hindering
interstate
trade? The answer, I think is, No. As Deane J. said in Tillmanns
Butcheries Pty. Ltd. v. AMIEU & Ors (1979) 27 ALR 367 at 382 and
383:
"The 'purpose' referred to in s.45D(1) is the28. If one searches for the real purpose of the action of the respondent Union and its officers one will not discover that it had any relationship with the interstate aspect of the relevant trade that might be hindered or prevented. Whether that trade was interstate or intra-state was of no importance or significance to the Union. It is to be inferred that the minds of the persons representing the Union in imposing the bans and making and implementing the conciliation agreement contained no thought that and were not actuated by the fact that any of the affected trade might be interstate trade. It follows that it cannot be inferred that their purpose in taking these actions was to hinder persons from engaging in trade being in the nature of interstate trade.
operative subjective purpose of those
engaging in the relevant conduct in concert.
In this regard, one may contrast the purpose
referred to in s.45D(1) with the objective
purpose of an arrangement under s.260 of the
Income Tax Assessment Act 1936 (see Peate v.
FC of T [1962] HCA 64; (1964) 111 CLR 443 at 468).
It suffices, for present purposes, to say
that, in my view, the question to be answered
in determining whether conduct was engaged in
for a 'purpose' mentioned in s.45D(1) of the
Act is, to adopt the words of Viscount Simon
LC in Crofter Hand Woven Harris Tweed Co.
Ltd. v. Veitch [1941] UKHL 2; (1942) AC 435 at 444-5, to be
answered not by reference to whether it was
appreciated that the relevant conduct might
have the specified effect, but by reference
to the real reason or reasons for, or the
real purpose or purposes of, the conduct and
to what was in truth the object in the minds
of the relevant persons when they engaged in
the conduct in concert. In so far as the
Union was concerned, its purpose must, of
course, be determined by reference to the
purpose of those through whom it acted."
29. In my opinion there is nothing in the evidence to indicate that the purpose of the conciliation agreement or its later implementation or sequel was made or that any of the conduct engaged in pursuant thereto was engaged in for the purpose of hindering interstate or inter-territorial trade.
30. Accordingly the application, against the Union and its officers, so far
as it depends upon s.45D(1A) of the Act cannot succeed.
The claims made under s.45E(1)(a) and (c)
31. The provisions of those sub-sections are as follows:-
"(a) has the purpose of preventing or32. The circumstances in which those provisions may have application are those in which,
hindering the first-mentioned person
from supplying or continuing to supply
any such goods or services to the second
person or, as the case may be, from
acquiring or continuing to acquire any
such goods or services from the second
person;
...
(c) has the purpose of preventing or
hindering the first-mentioned person
from acquiring or continuing to acquire
any such goods or services from the
second person except subject to a
condition (not being a condition to
which the acquisition of such goods or
services by the first-mentioned person
from the second person has previously
been subject by reason of a contract
existing between those persons) as to
the persons to whom, as to the manner in
which, or as to the terms on which, the
second person may supply any goods or
services."
(a) Borthwicks has been accustomed to acquire services from
particular carriers who were on the Union banned list in(b) Borthwicks has been accustomed to acquire goods from
1980 or thereafter and still are and whose services are
still available to Borthwicks.
farmers and other owners of livestock who are still33. In respect of each of these situations it is necessary to examine the alleged contract agreement or understanding between Borthwicks and the Union. The question is whether there was and is any such contract, arrangement or understanding of the kind designated in s.45E(1)(a) and (c).
ready and willing to sell stock to Borthwicks.
34. The contracts, arrangements or understandings designated in these provisions are such as contain a provision which has the purpose of preventing or hindering one of the parties thereto from, inter alia, acquiring the services of a person with whom that party has been accustomed to acquire them, or from acquiring goods from a person with whom that party has been accustomed to acquire such goods, except subject to a condition as to the manner in which or the terms on which the supplier of such goods may supply them, that condition not being one previously applicable to acquisition of such goods under a contract previously entered into between the supplier and the persons acquiring such goods.
35. It is clear that in September 1980 the conciliation proceedings between Borthwicks and the Union were resolved by agreement. That agreement provided for the discontinuance of the proceedings in the Federal Court brought by Borthwicks against the Union and its officers and for much more. To be properly understood regard must be had to the method by which Borthwicks conducted its business. That business involved the purchase by Borthwicks of livestock on farms or at sale yards or at its abattoir, the receipt of stock brought by carriers to its abattoir, the unloading and killing of the stock so brought and the disposal of the resulting meat product to butchers. In the course of its business Borthwicks engaged carriers to carry livestock purchased by it at sale yards or from farmers at their location to the abattoir. It frequently purchased stock, especially cattle but sometimes sheep, from farmers on what were called weight and grade terms. In those cases stock would be delivered by the farmer to Borthwicks' abattoir by the farmer himself or a carrier chosen by the farmer. When stock was bought straight out on the farm the property in the stock passed to Borthwicks at the time of purchase when they were loaded into Borthwicks' trucks at the farm. In the case of weight and grade transactions the property did not pass until delivery at the abattoir. But in each case, as a matter of practicality the stock had to be carried from their location to Borthwicks abattoir. The carrier would be chosen by Borthwicks or the farmer according to whether the purchase was at a price for the animals or on a weight and grade basis. Purchases of cattle at the farm were nearly all by weight and grade but in the case of sheep the reverse was the case.
36. In and prior to September 1980 the applicants Gibbins were carriers whose services in the carriage of livestock from farms to its abattoir and otherwise Borthwicks had been accustomed to use. Also in the course of their business those applicants carried livestock from farms to Borthwicks' abattoir for farmers who engaged them so to carry their stock.
37. In a sense such carriers were "invited" by Borthwicks to bring livestock to the abattoirs. Borthwicks' business proceeded on the basis that they should do so and naturally and inevitably the carriers concerned acted on that basis. It was in this context that Borthwicks made an agreement with the Union that it would cease to "invite" certain carriers, being "people known to the company", to come onto the works and that it would not require members of the Union to attend those persons. Borthwicks also agreed that persons other than those who had involved themselves in the process of conciliation should "respect the need not to cause further provocation" and therefore, Borthwicks "accepted the fact" that stock carriers who did not recognize the Union's picket lines over live sheep were not accepting the spirit of conciliation and would see those persons as an antagonistic factor to a continuing resolution of the industrial relations problem and would not invite or engage such people to come onto the works or require the members of the Union to be involved with such people.
38. Stripped of its poetry the agreement was, first, that the people banned by the Union for having passed the picket lines should not be engaged by Borthwicks to carry stock or be allowed to bring stock to the abattoirs and if they did the company's Union employees would not be required to unload the stock so brought on or to kill them. Secondly, the agreement was that the carriers who did not recognize the Union's picket lines in the future would also not be so engaged by Borthwicks or allowed to bring stock onto the abattoirs and if they did Borthwicks would not require its Union employees to unload the stock or to kill them. And for good measure the agreement provided that persons shown to be acting in collusion to defeat 'the spirit of the resolution' (agreement) were not to be engaged or invited by Borthwicks and the Union employees would not be required to attend them.
39. So it is perfectly clear that the agreement was that carriers banned by the Union for passing the picket lines were not to come onto Borthwicks' abattoirs and if they did the stock brought by them would not be killed. It followed from this that Borthwicks had to make adjustments to its manner of carrying on its business. It had to refrain from itself engaging banned carriers to carry stock to the abattoirs and it had to take steps to ensure that farmers who sold stock to it on the basis that they would arrange for the carriage of the stock to Borthwicks' abattoir understood that they were not to engage any of the banned carriers for the task. This was well understood by Borthwicks. From then on it did not engage carriers on the banned list. Also, through its buyers or other staff it informed farmers selling stock, on the basis of delivery by them to the abattoirs, that they should not use any of the banned carriers for this purpose. And this has gone on for years. The practice has developed that Borthwicks accepts the statement of the Union that a particular carrier or truck is on the list of carriers and trucks who have passed the picket line and are for that reason banned as carriers to deliver stock to Borthwicks. There is some uncertainty as to how carriers learned that they were on the banned list. But they did, and so did Borthwicks, and so did the farmers to the extent necessary for them to know.
40. From the evidence it is clear that during all these years there has been a clear understanding between Borthwicks and the Union that carriers banned by the Union, either originally or after September 1980, are not to carry stock to Borthwicks' abattoirs and that if they do, by accident or subterfuge, the trucks involved are not to be unloaded by the Union employees and the stock involved are not to be killed by the Union employees. That is the understanding with the Union upon which Borthwicks' business has been conducted since September 1980.
41. The conciliation agreement was in my view, on its proper construction to
operate indefinitely in the future. It was determinable
by either party after
one year but unless so determined continued to operate indefinitely and is
still in force. If that were not
so the relationship between Borthwicks and
the respondents has been and still is governed by an understanding between
them containing
all the terms of the conciliation agreement and possibly some
ancillary provisions of no significance in the issues before the Court.
The Purpose which the provisions in the contract arrangement or understanding
"had"
42. If the conciliation agreement as originally made or as varied or extended
after it was first made, is to avail the applicants
in their claims against
Borthwicks it must be shown that a provision or provisions in it "had the
purpose" of:
(a) preventing or hindering Borthwicks from acquiring the
services of banned carriers from whom they were(b) preventing or hindering the acquisition of stock by
previously accustomed to acquire such services
(s.45E(1)(a));
Borthwicks except subject to a condition not formerly43. In respect of purchases of stock from farmers from whom Borthwicks was accustomed to buy stock on the basis that the farmer was to deliver the stock to Borthwicks, the introduction of a condition that in the farmer's choice of carrier to deliver the stock certain carriers were excluded, would certainly be to introduce a condition described in s.45E(1)(c). Of course the conciliation agreement does not contain any express provision as to the terms upon which Borthwicks may continue to deal with persons from whom it was accustomed to acquire stock. But one is concerned not so much with the actual provisions contained in the conciliation agreement but with the purpose that those provisions "had".
applicable to a contract of acquisition of stock from
the vendors concerned, they being persons from whom
Borthwicks was previously accustomed to acquire such
stock (s.45E(1)(c)).
44. The purpose that a provision has would appear to be the purpose it is
intended to achieve. Section 4F(a) of the Act provides:
"4F. For the purposes of this Act -45. Accordingly, it is necessary to inquire first, whether, whatever the nature of the relevant provisions, they were included in the conciliation agreement for the purpose of preventing or hindering the acquisition of services from particular persons. It is next necessary to inquire whether those provisions were included in that agreement for the purpose of preventing or hindering the acquisition of stock from persons from whom Borthwicks was accustomed to acquire such stock except upon a condition that banned carriers not be engaged to carry the stock to the abattoir.
(a) a provision of a contract, arrangement
or understanding or of a proposed
contract, arrangement or understanding,
or a covenant or of a proposed covenant,
shall be deemed to have had, or to have,
a particular purpose if -
(i) the provision was included in the
contract, arrangement or
understanding, or is to be
included in the proposed contract,
arrangement or understanding, the
covenant was required to be given
or the proposed covenant is to be
required to be given, as the case
may be, for that purpose or for
purposes that included or include
that purpose; and
(ii) that purpose was or is a
substantial purpose; ..."
46. It is clear that the immediate purpose of including the provisions in the agreement was, with the consent of Borthwicks, to lessen the likelihood that banned carriers would come upon the abattoir and to ensure, again with Borthwicks' consent, that if they did the stock were not to be unloaded or killed by Borthwicks' Union employees. But it went further than that. It obviously was designed to prevent Borthwicks from engaging banned carriers for carrying services.
47. Whether the relevant provisions were included in the agreement for the purpose also of ensuring that banned carriers not be used for the carriage of stock to the abattoir is a question of fact. I think that question must be answered in the affirmative. The agreement did not contemplate that situations would arise in which "uninvited" carriers would bring stock to the abattoir expecting that they be unloaded and killed, but be involved instead, in a confrontation between themselves and Borthwicks and the Union members, only ultimately to be turned away unloaded, and leaving behind complications in the contractual relations between Borthwicks and the vendors to it of the stock. A purpose of that provision was to ensure that such situations did not arise. The notion of a line of trucks of banned carriers at the abattoir, bringing stock purchased by Borthwicks, all awaiting and expecting to be unloaded would have been an anathema to Borthwicks and the Union. Each party was concerned to ensure that stock continued to arrive but only if brought by non-banned carriers. Had confrontation become the rule it would not have been long before the supply of stock dried up. Both parties intended therefore that stock purchased by Borthwicks either had to be carried by non-banned carriers engaged by Borthwicks or by non-banned carriers chosen by the vendors of the stock. The situations of confrontation would be avoided only if Borthwicks not only did not itself engage banned carriers but stipulated to vendors of stock that they should not engage such carriers. It was for this reason that lists of banned carriers were supplied by the Union to Borthwicks and Borthwicks did notify vendors of stock to it that they were not to engage the banned carriers in carrying the stock to Borthwicks. The banning of the carriers was not only to validate refusal by the employees to unload or kill stock which they brought to Borthwicks but to exclude them from carrying stock to Borthwicks.
48. In the light of earlier practices a purchase of stock from a farmer on the basis that the farmer arranged the delivery to Borthwicks of the stock was in substance an invitation to the farmer to engage any carrier he chose. In a sense the carrier chosen was impliedly invited by Borthwicks onto the abattoirs to deliver the stock. If Borthwicks was to refrain from inviting banned trucks onto the abattoir to deliver stock sold to it by farmers something had to be done by Borthwicks to withdraw that invitation. The agreement contemplated that there would be such a withdrawal. The withdrawal could be achieved only by Borthwicks intimating to farmers that delivery by banned carriers would be unacceptable. Inevitably, the provisions in the conciliation agreement had the purpose that such an intimation would be given. And it was.
49. The use of the expression "invited" in the provision in the conciliation agreement, that persons known to Borthwicks are not to be "invited" to come onto the works is inevitably a reference to the terms upon which carriers were accustomed to come upon the works. "Invitation" was perhaps a rather polite term to apply to the arrangements referred to. The carriers came either because they had a contract with Borthwicks to carry stock to the works for Borthwicks or because it was part of the arrangement with vendors of stock to Borthwicks that the stock should be delivered to the works by carriers chosen by them who must inevitably drive onto the abattoir premises. In this latter case "invitation" in the sense in which the word is used is wrapped up in the arrangement with the vendor. No doubt the conciliation agreement was designed to exclude banned carriers from the works whether they were engaged by Borthwicks or by the vendors of stock.
50. The relevant transactions involved a willingness and indeed an obligation on the part of Borthwicks to receive the carrier in his truck and with his load at the works. In this sense the carrier was invited onto the works. And on the evidence there were no other situations in which the notion of invitation of carriers would be applicable. Further, the restriction upon Borthwicks in relation both to inviting carriers and engaging them reflected and covered the two methods by which carriers ordinarily came upon the works.
51. It is clear, however, that if Borthwicks was to refrain from so inviting carriers, "being persons known to it" namely, the carriers on the black list, it was necessary for Borthwicks to restrict the vendor's choice of the carriers to be used by them for delivery to Borthwicks of the stock sold by them to Borthwicks. Of course Borthwicks might have chosen to change the system of purchasing stock on weight and grade terms by stipulating that the carriage of stock so purchased would be transported by its own carriers. But clearly it did not desire to do this. Had that course been adopted it would have constituted the imposition of a condition into the contract with the vendors of stock within the meaning of s.45E(1)(c) in the same way and to the same extent as the condition which was imposed, namely that the vendor should engage only a non-banned carrier to transport to Borthwicks the stock purchased by Borthwicks. And even if it had adopted that course it would not escape the provision in the conciliation agreement that it would not engage banned carriers. Accordingly, arrangements had to be made by Borthwicks to ensure that carriers on the black list were not used. If they were, the conciliation agreement would preclude Borthwicks from taking delivery in accordance with its purchase contract. Accordingly, it was essential for Borthwicks to stipulate that the vendor of stock sold to it on a weight and grade sale at the farm should choose a carrier other than one on the black list. And of course Borthwicks did this. It was not incorporated into any written document of stock purchased. But vendors were informed by Borthwicks' buyers that delivery was to be made on a "clean" truck because Borthwicks could not otherwise take delivery or arrange the killing of the stock. Vendors would, and the evidence is that they did understand that a condition had been imported into the transaction between themselves and Borthwicks. They could either accept the condition and have the stock accepted and killed or ignore it and have the stock turned away. If the condition was added after the deal was concluded he could cancel the contract. But the reference to invitations to carriers to come on to the works, as deliverers of stock, inevitably extends to the invitation involved in the normal business practice whereby Borthwicks extended to vendors the right to choose their own carriers and Borthwicks' obligation to receive them at the works. It is this very practice which is the subject of clauses one and three of the conciliation agreement. And it is this very practice which is proscribed. That choice is to be taken away. The invitation will no longer be general, but restricted only to "clean" carriers.
52. In the light of past practices and the method of Borthwicks of conducting
the abattoir and the practical considerations in contemplation
by the parties
in which the terms of the conciliation agreement was arrived at and included
therein it is in my view apparent that
the provision that banned trucks be
neither invited nor engaged by Borthwicks to bring stock to the abattoir was
included for the
purposes of:
(a) preventing Borthwicks from acquiring stock on terms that
the vendor should arrange transport of such stock to an(b) hindering or preventing Borthwicks from acquiring from
abattoir from the applicant Baker and all other persons
from whom it was accustomed so to acquire stock except
upon the condition that the vendor would arrange for the
transport of such stock to Borthwicks by a carrier and
in a vehicle other than such as was banned by the
respondent Union from delivering stock to the respondent
Borthwicks or being used for that purpose.
(s.45E(1)(c));
the applicants Gibbins and other carriers banned by the53. The reality and persistent implementation by Borthwicks of the Union bans is evidenced by:
respondent Union from delivering stock to Borthwicks'
abattoirs in and about the carriage of stock to its
abattoirs. (S.45E(1)(a)).
(a) its failure to use any banned carrier or truck for the
carriage of stock to its abattoirs since September 1980;(b) its regular and continuing practice of intimating to
vendors of stock on weight and grade terms that they(c) its practice of acquiescing in the refusal of its
were not to use banned carriers for delivery of the
stock concerned on pain of it not being accepted by
Borthwicks;
employees being members of the respondent Union to(d) its acceptance from the respondent Union of updated
unload stock arriving at its abattoir and which it had
purchased and intimating to the drivers of the trucks
bringing such stock that they must be taken from the
abattoir unloaded.
lists of the banned carriers and trucks and its(e) its practice of informing farmers and carriers as to
tolerance of the maintenance and updating of such lists
on its premises;
whether particular carriers were or were not banned.54. It was argued by Mr. Barnard Q.C., on behalf of Borthwicks, that all of the conduct of Borthwicks was performed under duress and that its conduct did not constitute any consensus in the terms of the conciliation agreement or its subsequent implementation. It was said that it had no choice and acted only under duress.
55. As to duress it may be observed that the respondent Borthwicks had before it the choice of making an agreement in contravention of the provisions of s.45E of the Act or proceeding with its proceedings under s.45D. Of course it was faced with possible industrial disruption if it proceeded to enforce remedies under s.45D. Experience of the operation of this provision would indicate that such risk is much less than is sometimes thought. Indeed compliance with orders made under s.45D has been quite marked. In any event the Court cannot proceed upon the basis that the laws are made not to be enforced or speak in vain. And, large institutions such as Borthwicks have an interest and probably a duty to support the enforcement of the law. It certainly has an interest not to break the law. It is clear that the advisers of Borthwicks knew, when they made the conciliation agreement, that there was a risk, that notwithstanding that it was made in the course of conciliation proceedings, it was illegal. No doubt this was explained to Borthwicks. But Borthwicks was so anxious to have industrial peace at its works that it was prepared to surrender to Union pressure and sacrifice the interests of carriers whose services it had used theretofore and whose only offence was that they wished to carry on their lawful occupation.
56. It is one thing for conciliation proceedings to be resolved by agreement of the persons affected thereby. To obtain such resolution is no doubt the intention of Part 5A of the C & A Act. But it is another to deal with the interests of absent parties to their detriment and then to say, "There you are, your interests have been traded away. You must put up with it". That is what Borthwicks has done in this case and has attempted to cover it with a pale cast of legality. If there were any genuine element of duress in the making of the conciliation agreement the effect thereof could be put, at the highest, that that agreement was voidable. But Borthwicks has made no attempt to avoid the agreement. On the contrary right up to October 1985 it was implementing it when Mr. Gibbins and other carriers were turned away and they took away the farmers' choice of carriers. Although a director of Borthwicks gave evidence in this case there was no suggestion that Borthwicks intends to do other than continue to implement the agreement.
57. It was suggested that the principle applied by Franki J. in Keith Russell
Simplicity Funerals Pty. Ltd. v. Cremation Society
of Australia (ACT) Ltd. &
Ors 1982 40 ALR 125 is applicable to this case. But that case is far removed
from this. In that case
there was nothing to show a consensus, somewhat
solemnly arrived at in a ceremony, and evidenced in writing, and followed by
six
years of implementation of what was agreed to in 1980 and a continuing
intention to continue to observe it.
The Understanding
58. It is clear that the conciliation agreement not only governs by its own
strength but has given rise to an understanding of a
slightly wider nature,
namely by the exclusion from an invitation to come onto the works or from
being engaged to come onto the works,
not only of carriers who have passed the
picket lines but to those who according to Union judgment have done so or have
done the
equivalent. And of course at a later date the black list was extended
to include those carriers who, not necessarily having crossed
a picket line,
had delivered sheep to Mr. Paddy's sheep lot. That sheep lot was a holding lot
for sheep awaiting delivery to a ship.
And so strong is the understanding as
to the observance of the Union's prerogative to name the banned carriers and
banned trucks
that Borthwicks has acquiesced in the designating by the
respondent Brunt and other Union representatives of carriers and trucks
that
are banned. It was inevitable that this should occur because the upper
management of Borthwicks did not inform its executive
staff at the abattoir of
the terms of the conciliation agreement. It was probably reluctant to publish
the fact that for practical
purposes, it had given into the Union's demands to
exclude from the works the carriers who offended the Union. Borthwicks' view
of
the effect and probably the intent of the conciliation agreement is to be
gathered from the instruction given to Mr. Harris, namely,
to ensure that
there was no interruption in the operation of the abattoir, his main job being
to keep that plant operating come what
may. And thus it was that from the
date of the agreement the works were operated on the basis that a carrier
designated as being
on the black list or a truck on the black list which the
employees refused to unload for that reason was effectively unable to deliver
its load. Borthwicks' staff in the course of what they understood to be their
duty simply acquiesced in the Union decision and made
it clear to the driver
that he must depart with his load of stock. The situation was described in
the following passage in the evidence
of Mr. Harris:
"The plant really had to be carried on. InThis inability of the staff to resist the Union enforcement of the ban with respect to any condemned carrier or truck designated by it as on the blacklist merely reflected the fact that Borthwicks' top management had entered into the conciliation agreement intending to "go along with" the Union's terms. To my mind the inference is clear that this was the understanding between the Union and Borthwicks pursuant to which the works have operated since September 1980.
view of the attitude of the union, to
carry on with any hope of continuity
black trucks really had to be kept off
the place? --- They had to be, yes, but
I would have liked to have seen the bans
lifted.
I beg your pardon? --- I would have been
quite happy if there had been no bans.
Oh yes, that would have solved everything.
But you were faced with the bans and I
think you told me that if you told Mr.
Brunt that if they tried to enforce the
ban they would all get the sack and that
would have brought on a crisis, and I
suppose you mean by that that they would
have all gone on strike? --- Yes, you
see, we were trying ---
So in that situation you had a number of
alternatives, either to sack them all?
--- True.
Or pretend that the black truck, that the
sheep had come not on a black truck but
a white truck? --- That is right.
Or to accept the ultimatum from the Union and
keep the black trucks out? --- That is
right.
That is about all there was, was it not? ---
That is right.
And it would seem that of all those
alternatives you were operating on the
basis that it was wise to keep the black
trucks out and reduce all these
incidents? --- That is right."
59. And I find that arising out of the conciliation agreement and in connection with its implementation there has been, at all material times, and still is, an understanding between Borthwicks and the Union that in the management of the abattoir the designation by the Union or its representative at the abattoir of a carrier or a truck as a carrier or truck subject to a ban by the Union against him or it delivering livestock to the abattoir will be recognized by Borthwicks and its staff as valid and that the carrier or truck and the stock in which it is brought to the abattoir is not to be unloaded by the employees of Borthwicks or otherwise dealt with by them should they be unwilling to do so.
60. Mr. Brunt clearly regards himself as the Master of the situation where a question of banning a carrier or a truck is concerned. He knows Borthwicks' staff will accept his decision. Not only does Borthwicks acquiesce when carriers and trucks are banned by their employees but it takes steps to ensure that banned trucks do not arrive.
61. The bans and Borthwicks' acquiescence therein have been widely understood amongst carriers, farmers and the Union and its employees. So much so that carriers have refused offers of work from farmers because they believe they were banned and farmers have refrained from employing carriers in the belief that they were on the banned list. There have been few confrontations. However, in October 1982 one Lyons, a farmer of Melville Forest engaged a carrier, Alan Fellenberg, to carry 300 sheep to Borthwicks' abattoir at Portland. Mr. Fellenberg was understood to be on the banned list. When the truck was driven onto the works the drover on duty and then Mr. Brunt declared that it could not be unloaded. Mr. Fellenberg was forced to withdraw. Mr. Lyons protested to the Manager who said he would look into the matter but failed to communicate further. Mr. Lyons complained to the Borthwicks' buyer who asked him why he was playing silly games. He claimed that there was no ban as such, but no stock bought onto the abattoir by Mr. Fellenberg would be unloaded.
62. In January 1985 the applicant L. N. Gibbons carried sheep for the applicant Baker to the abattoir. He was challenged by the drover, the challenge was supported by Brunt. Mr. Harris, the Plant Manager explained that he had a list of carriers and stated that some trucks could be unloaded and some couldn't. He said, "You've got to be in the Transport Workers' Union and not go to a feed lot, don't have anything to do with the export of live sheep and they'll unload you, they're the ones that went through the picket line. You're not being unloaded. I spend half the time running backwards and forwards looking at this list". As a result Mr. Gibbins had to withdraw.
63. In February 1985 Mr. Weatherly a farmer of Mortlake accompanied a load of his stock driven by one David Gale. Mr. Harris the Works Manager explained to Mr. Weatherley that the sheep would not be unloaded because David Gale was on the list as one who had crossed the picket line. After much discussion Mr. Weatherly and his stock were forced to withdraw.
64. In late 1985 one Terry Lane was engaged as a sub-contractor to K. & S.
Freighters to deliver a load of cardboard boxes for the
use of Borthwicks in
packing meat. He was told by Mr. Brunt that he was on the banned list for
having crossed the wharf picket line
and could not unload. Borthwicks'
Industrial Relations Officer told Mr. Lane he would have to withdraw and he
did. Borthwicks sent
a truck to a depot in Portland and picked up the boxes
from Mr. Lane there.
Borthwicks as a party accustomed to acquire sheep from Baker on a weight and
grade basis
65. An issue arose as to whether it was established that prior to the sale by the applicant Baker to Borthwicks of the sheep the subject of carriage by the applicants Gibbins for Baker in January 1985, Borthwicks was accustomed to acquire sheep from Baker on a weight and grade contract. Baker was quite certain that on numerous occasions he had sold sheep to Borthwicks on such a contract. This was challenged by Mr. Forbes who said that the January sale was the first weight and grade sale of sheep he had negotiated with Mr. Baker.
66. It is clear that prior to September 1980 Borthwicks was accustomed to purchase cattle from Mr. Baker on a weight and grade basis. So far as sheep are concerned I have no reason to doubt that Mr. Forbes spoke the truth according to his recollection and means of knowledge. However, although Mr. Baker was shaken to some extent in respect of a particular sale to Borthwicks on a weight and grade contract earlier than January 1985, I accept his evidence that from time to time prior to January 1985 he had made sales of sheep to Borthwicks on a weight and grade contract. Mr. Baker was an intelligent witness not likely to be under a misapprehension as to the general basis upon which he had done business with Borthwicks. Subject to the ever present possibility of error in recollection, Mr. Baker was a witness whose evidence was most impressive. On the point at issue I accept it. I am satisfied that Mr. Baker was a person from whom Borthwicks had been accustomed to purchase cattle on weight and grade terms prior to September 1980. But I am not satisfied, on the evidence, that it ever occurred that, Mr. Baker being then a person from whom Borthwicks was accustomed to purchase sheep on a weight and grade contract not containing a stipulation or being subject to a condition that he would engage only a non-banned carrier to carry the sheep to Borthwicks, Borthwicks bought sheep from Mr. Baker by a contract subject to that condition or including a stipulation that Mr. Baker was to engage only a non-banned carrier to carry the stock to Borthwicks' abattoir.
67. I do not regard this as a matter going to the entitlement of Mr. Baker to
relief pursuant to the Act in these proceedings. Apart
from his position as a
vendor of cattle on a weight and grade basis or sheep to Borthwicks, he is,
"any other person" within the
meaning of s.80 of the Act both technically and
as a matter of substance. Phelps v. Western Mining Corporation Ltd. (1977) 33
FLR
327 is authority for this.
Conclusion
68. There can be no doubt on the balance of probabilities that since
September 1980, by way of implementation of the conciliation
agreement, and
the understanding referred to above, Borthwicks in the course of its business
with persons with whom it was accustomed
to purchase livestock, including
cattle and sheep, by contracts not subject to or including a stipulation that
for the carriage of
such stock to Borthwicks the vendors should engage only
carriers who were not banned by the respondent Union from carrying livestock
on to Borthwicks' abattoir, purchased livestock from such persons, and did so
only by contract subject to or including a condition
that for the carriage of
the stock so purchased the vendor would engage only carriers who were not
subject to a ban by the Union
against the carriage by them of livestock to
Borthwicks' abattoir and that the stock so purchased included cattle and
sheep, and
refrained from engaging the services of the applicants Gibbins and
other carriers the subject of the Union ban referred to above.
Union involvement in the s.45E contraventions
69. It is beyond question that within the meaning of s.80(1) of the Act the
Union and the respondents Curran and Brunt have each
aided, abetted,
counselled and procured Borthwicks to contravene the provisions of s.45E(1)(a)
and s.45E(1)(c) discussed above.
They have also induced and have been
directly knowingly concerned in such contraventions. The evidence in respect
of each of those
is unambiguously compelling. The Union and the respondents
Curran and Brunt worked for and achieved the conciliation agreement.
They
have supported the implementation thereof and the understanding between the
Union and Brunt that Borthwicks will observe the
Union's banned or black list
in relentless fashion during and since 1980. Asked by Mr. Harris as late as
1984 whether there was
any change in the Union's intention to continue the
bans Mr. Curran answered in the negative.
Relief
70. The situation is that the conciliation agreement and the understanding which has arisen out of it are in full force and the Union and its officers and Borthwicks intend to continue to implement them in full.
71. The result is:
(a) that Borthwicks still intends to refrain from acquiring
the services of any carrier who is the subject of a ban(b) Borthwicks still intends not to acquire stock from
by the respondent Union from carrying livestock to
Borthwicks' abattoir;
persons from whom it was accustomed to acquire stock on(c) that the Union and the respondents Curran and Brunt
a weight and grade basis in 1980 and thereafter on terms
that such persons chose the carrier to transport that
stock to Borthwicks' abattoir except on the condition,
not being a condition of the acquisition of such goods
had previously been subject by reason of a contract
existing between Borthwicks and such persons that such
persons engage only carriers who are not on a list of
carriers banned by the respondent Union from delivering
stock to the abattoir; and
intend to maintain such list and implement such bans by72. Thus the intention of each of such respondents is that contraventions of the provisions of ss.45E(1)(a) and 45E(1)(c) of the Act are to continue. The jurisdiction of the Court is to grant such injunction as the Court determines to be appropriate (s.80). It is in my view, appropriate, to restrain Borthwicks from implementing or giving effect to the conciliation agreement and the understanding between it and the Union referred to above, in those aspects thereof, in the implementation of which, Borthwicks is prevented from employing carriers who are subject to Union bans and farmers are prevented from employing such carriers from whom Borthwicks purchases livestock and to restrain the Union and the second, third, fourth, fifth and sixth respondents from being involved in the implementation or giving effect to the conciliation agreement and the understanding in any way which promotes the exclusion of those carriers from employment by Borthwicks or farmers.
directing or procuring its members, being employees of
Borthwicks, to refuse and refrain from unloading,
killing or otherwise dealing with stock brought to
Borthwicks by a carrier or on a truck on such banned
list for the purpose of maintaining their bans on
carriers who have been connected with the live sheep
export deliveries to ships at Portland Harbour or to
Paddy's feed lot.
73. Formulating this in terms appropriately specific for injunctive relief I
consider that the Court should:
1. Restrain Borthwicks by its servants and agents from:
(a) implementing or giving effect to the conciliation2. to restrain the respondent Union by its officers,
agreement or the understanding referred to above
by refraining from or failing, pursuant thereto,
to acquire from the applicants Gibbins services in
and about the carriage of livestock;
(b) implementing or giving effect to the conciliation
agreement or the understanding referred to above
by refraining or failing pursuant to such
agreement or understanding to acquire from a
carrier the subject of the ban by the Union
against such carrier bringing livestock onto
Borthwicks' abattoir, services in and about the
carriage of livestock;
(c) directing or procuring, consenting to or
acquiescing in a refusal or failure by its
employees being members of the respondent Union to
unload or kill or otherwise deal with stock
brought to Borthwicks' abattoir at Portland by a
carrier or in a truck who or which are subject to
a Union ban, relating to or connected with the
conciliation agreement or understanding referred
to above, against the delivery by him or it to the
abattoir of livestock in the ordinary course of
business of the abattoir and from being directly
or indirectly knowingly concerned in or party to
any such refusal or failure.
(d) implementing or giving effect, or being knowingly
concerned in the implementation or giving effect
to the conciliation agreement or the understanding
between Borthwicks and the Union that carriers and
trucks designated by the Union as banned from
coming onto or delivering livestock to Borthwicks'
abattoir at Portland by withdrawing or refusing
permission to such carriers or trucks to be or
remain on such abattoir consenting or acquiescing
in or being a party to the refusal or failure to
unload stock brought to the abattoir by such
carriers or on such trucks or to kill the same;
(e) from instructing its employees or agents concerned
with the purchase of stock for Borthwicks or the
carriage of stock to Borthwicks' abattoir:
(i) that the carriers to be engaged for such carriage
shall only be those not the subject of a ban of
the respondent Union against them bringing stock
to Borthwicks' abattoir at Portland; or
(ii) that they should inform vendors of stock to
Borthwicks that for the carriage of such stock
the carrier or carriers to be engaged shall be
only such as is or are not subject to a ban of
the respondent Union against him or them bringing
stock to Borthwicks' abattoir at Portland.
(f) from permitting its employees or agents concerned
with the purchase of stock for Borthwicks or the
carriage of stock to Borthwicks' abattoir at
Portland to be or remain of the belief or
understanding that it is part of their duty or
function to engage for carriage to the abattoir
only carriers not subject to the abovementioned
ban, or to inform vendors of stock to Borthwicks
that they should engage to carry the same to the
abattoir only carriers not subject to such ban;
officials or members, servants or agents and the second74. I give judgment accordingly for the applicants with costs against the respondent Union, Arthur Bird, John Kenneth Brunt, Walter F. Curran, Bert Hutchins, Jack O'Toole and the respondent Borthwicks excluding costs referrable exclusively to the issues under s.45D(1A) of the Act but including reserved costs. These applicants should pay to the first to sixth respondents the costs incurred by them which were referrable exclusively to the issues arising under s.45D(1A) of the Act such costs to be set off against costs payable by them to the applicants.
to sixth respondents from implementing or giving effect
to or complying with the provisions of the conciliation
agreement between Borthwicks and the respondent Union
dated 11 September 1980 or the understanding referred to
above between Borthwicks and the Union:
(a) by directing or procuring the employees of
Borthwicks at its abattoirs at Portland to refuse
or fail to unload stock which is brought onto
Borthwicks' abattoir at Portland by a carrier or
in a truck who or which is subject to a Union ban
against the carriage or delivery by him or it to
the abattoir of livestock or to refuse or fail to
kill or otherwise deal with such stock in the
ordinary course of the conduct of the abattoir or
from being directly or indirectly knowingly
concerned in or party to any such refusal or
failure;
(b) by engaging or being concerned in any way in
conduct by way of implementing, promoting or
enforcing the provisions of the conciliation
agreement between the Union and Borthwicks dated
11 September 1980 or the understanding between it
and Borthwicks referred to above or the exclusion
from employment by Borthwicks or farmers who sell
stock to Borthwicks of carriers who are subject to
a ban by the respondent Union against them
bringing livestock to Borthwicks' abattoir at
Portland.
75. Further I grant to all parties liberty to apply with reference to the content of any injunction which may be made on the findings herein and generally.
AustLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.austlii.edu.au/au/cases/cth/FCA/1986/199.html