Re Meat and Allied Trades Federation of Australia (Queensland) Division) Union of Employers; Meat and Allied Trades Federation of Australia and Meat and Allied Trades Federation of Australia (South Australian Division) v Australasian Meat Industry Unio [1989] FCA 449 (6 November 1989)

FEDERAL COURT OF AUSTRALIA

Re: MEAT AND ALLIED TRADES FEDERATION OF AUSTRALIA (QUEENSLAND)
DIVISION) UNION OF EMPLOYERS; MEAT AND ALLIED TRADES FEDERATION OF
AUSTRALIA and MEAT AND ALLIED TRADES FEDERATION OF AUSTRALIA
(SOUTH AUSTRALIAN DIVISION)
And: AUSTRALASIAN MEAT INDUSTRY UNION OF EMPLOYEES (QUEENSLAND BRANCH) AND
ORS
Re: MEAT AND ALLIED TRADES FEDERATION OF AUSTRALIA (QUEENSLAND DIVISION)
UNION OF EMPLOYERS
And: AUSTRALASIAN MEAT INDUSTRY EMPLOYEES' UNION OF EMPLOYEES
(QUEENSLAND BRANCH) AND ORS
Nos. Qld G104 and 3426 of 1989
FED No. 697
Judgments and Orders - Industrial Law
30 IR 297

COURT

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
Pincus J.(1)

CATCHWORDS

Judgments and Orders - industrial law - interlocutory injunction granted restraining industrial action - press release on behalf of applicants misrepresenting effect of judgment before order taken out - evidence of previous misrepresentation of similar order - whether injunction granted should be rescinded.

Trade Practices Act 1974, s.45D

HEARING

BRISBANE
6:11:1989

Counsel for the applicants: D.G. Russell Q.C., and B.D.

O'Donnell

Solicitors for the applicants: Morris Fletcher and Cross

Counsel for the respondents: J.A. Jerrard

Solicitors for the respondents: Poteri Woods & Co.

ORDER

the interlocutory injunction granted on Friday, 3 November 1989 be rescinded.

The costs of and incidental to this application made by the respondents to rescind the injunction be taxed and paid by the applicants.

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

DECISION

This is an application made on behalf of the respondents for an order terminating the effect of an interlocutory injunction which I granted on Friday last, 3 November 1989. The application is made during the gap in time between the pronouncement of the effect of the order and its perfection. That is, the order has not yet been taken out and counsel for the respondents says that it should not be, but it should rather be put an end to, because of a press release issued by the applicants, an event which happened during the gap in time just referred to. The respondents contend that this is a second instance of such conduct, the previous one relating to an order of MacKenzie J. in the Supreme Court of Queensland.

2. The application was made to the court by the applicants under s.45D(1A) of the Trade Practices Act 1974 which, in certain circumstances there mentioned, renders it unlawful for people to act in concert in the circumstances there mentioned; that is subject to limitations in s.45D(3), the relevant limitations for present purposes being those set out in para.(b) of the latter provision. These provisions, the construction of which was the subject of some discussion during the course of the hearing, produce a rather complex result. They do not make it the law that strikes are unlawful or that industry-wide strikes are unlawful. They produce the result which their terms require. The relevant parts are quoted in my reasons given on Friday; they are not repeated here.

3. To take an example of the limitations upon them, the provisions of sub-s.(1A) (as was submitted by Mr Russell Q.C., senior counsel for the applicants, and as I have accepted) appear to bring it about that if two persons act in concert with one another and one of them is an employee and the matter is otherwise caught by that sub-section, the person who is an employee of the person who is hindered is not liable. A further limitation, and one of some importance, is in paragraph (b) of s.45D(3) and that is, putting it shortly, a limitation in respect of industrial action where those acting in concert are employees employed by the one employer.

4. The significance of these limitations was illustrated by the course of the litigation. An issue upon which much evidence was adduced - literally dozens of affidavits, on which considerable submissions were made - was whether or not the stoppages which were the foundation of the applicants' claim were, although widespread, spontaneous action on the part of groupings of employees, or rather, as was submitted for the applicants, co-ordinated industrial action instigated by the respondent unions and union officials. If they fell into the former class, then it appeared, on my construction of s.45D, that they were not caught. Insofar as the case involved factual questions, that was the principal issue: whether or not the stoppages in question prima facie fell within the provisions I have mentioned, or rather, as Mr Jerrard, for the respondents, contended, fell outside them because the stoppages were agreed by the employees themselves at each abattoir. His argument was that if the stoppages happened to coincide in time, that was because the infection, as I think was said during the course of discussion, spread from works to works.

5. I resolved that factual point in favour of the applicants, in the sense that I held that there was a serious question to be tried. I also decided the other main questions of fact and law argued in favour of the applicants, generally speaking. But one question I did not decide in their favour was whether it was correct and relevant to say, as was argued by the applicants (p.6 of the reasons):

"What they (the applicants) do seek is that such
pursuit should occur within the framework
established by Parliament and that their members
should not be subjected to industrial pressure
directed to overturning the decision of a properly
constituted industrial tribunal."

6. As I understood the contentions advanced by Mr Russell, that submission was intended to discriminate between ordinary industrial action and what might be described as improper industrial action. Clearly, the submission was that the industrial action mentioned in evidence was in the latter category, and should therefore be enjoined.

7. I declined to act upon the basis that a proper question for the Court was whether the industrial action taken was in pursuit of claims "legitimately or reasonably made", to quote from p 7 of my reasons.

8. Although generally in favour of the contentions which Mr Russell made, I did not decide that industry-wide strikes are banned, nor did I ban them, nor did Mr Russell suggest in his submissions that industry-wide strikes are unlawful. I did not decided that industry wide strikes would be illegal following my decision. I did not make my decision on the basis that I considered:

"... that the AMIEU was attempting to operate
outside the established framework of accepted
industrial relations procedures by initiating
pressure to overturn the decision of a properly
constituted industrial tribunal."

9. The reader of press reports of the case might have been pardoned for thinking that I decided those matters which I have just mentioned, and decided them in favour of the applicants in particular, and in favour of employers generally.

10. "The Australian" newspaper, apart from printing some material which is obviously taken from a press release which I will mention shortly, said this:

"The decision means that employees at six abattoirs
in South Australia and one in Queensland are not
permitted to take any strike action."

"The Courier-Mail" said:

"The court order, under the Trade Practices Act
powers, means no meat employees in Queensland,
South Australia or federal branches can strike
until an injunction is reviewed."

This is also a point which may be derived from the applicants' press release I will set out shortly.

11. What happened on Friday afternoon was that I indicated the nature of the order I would make. I went on to hear another case, during which time the parties had discussions about the precise form of the order. After I had finished the other case, Mr Russell informed me of the form of order which was agreed and I was told (by my associate, as it happens) that there would be an engrossment prepared for my approval, and I waited for thatto happen.

12. It happened rather late and the engrossment was seriously defective. It adds not a little to the vice of what was done that when the applicants' advisers should have been preparing an engrossment, a simple enough task, to ensure that the order was properly recorded, accurately setting out the effect of what was done, they seem to have been engaged otherwise; the task on which they were engaged was what can only be described as preparing a misrepresentation of the effects of the order, the press release, which has become exhibit 1.

13. Exhibit 1 reads in part as follows:

" 3 November 1989
JUDGE BANS INDUSTRY WIDE STRIKES
Industry-wide strikes would be illegal and in
breach of the Trade Practices Act following a
landmark decision by Justice Pincus in the Federal
Court in Brisbane today.
The decision was made in respect of a case between
the Meat and Allied Trades Federation of Australia
(National, Queensland and South Australia
Divisions) and the Australasian Meat Industry Union
of Employees Federal, Queensland and South
Australian Branches.
The main thrust of the decision is that strikes
within similar industries, but involving more than
one employer, will be illegal and in breach of the
Trade Practices Act.
The judge considered that the AMIEU was attempting
to operate outside the established framework of
accepted industrial relations procedures by
initiating pressure to overturn the decision of a
properly constituted industrial tribunal.
The reason for the Federal Court hearing was the
failure of the AMIEU and its members to accept a
decision made by the Industrial Relations
commission to grant a 38 hour week, superannuation
and 4 percent pay rise to abattoir workers.
Although it was an interlocutory decision, Justice
Pincus deliberated for a week before making his
decision because of the significance of the implications.
He said that much ordinary industrial action, such
as strikes arranged or coordinated by a union, were
prima facie unlawful as long as it involved preventing
or hindering export or interstate trade or commerce.
Mr Brian Enders, The Director of The Meat and
Allied Trades Federation of Australia said that the
Federation had been successful in obtaining a
decision that had unlimited application in
preventing industry-wide industrial disputes."

It went on to discuss the matter further.

14. The inaccuracy of the early part of it appears from what I have already said, but it is worth repeating that the suggestion is made that the effect of my decision was that industry-wide strikes would be illegal. That is plainly not what I said and it was not the effect of my decision. The question whether industry-wide strikes are illegal depends, as the applicants well know, upon the facts of a particular strike and the terms of s.45D and other relevant laws applicable to such strikes.

15. It is, in my view, a particularly reprehensible feature of the press release and one which has been picked up by the press, that an important submission made by counsel and set out by me in my reasons as one made by counsel (at p 6) has been attributed to me as my considered view. I find it impossible to believe that that has been done by error.

16. It was not a basis of my decision to grant interlocutory relief that I considered that the AMIEU was attempting "to operate outside the established framework of accepted industrial relations procedures by initiating pressure to overturn the decision of a properly constituted industrial tribunal". The press release creates the impression that I had taken the view that the AMIEU was to be enjoined because of that improper conduct. I said nothing of the sort and no-one could have thought that I did. I made it clear that the question whether the claims on behalf of employees which had given rise to this litigation were reasonably or properly made was not one which appeared to me to fall within the scope of the Court's inquiry.

17. Looking at the matter more generally, it has to be said in favour of Mr Jerrard's contention that the jurisdiction which the court is asked to exercise under s.45D is a particularly delicate and difficult one. It is very much open to misrepresentation. The Court has to make decisions which may affect many, perhaps hundreds or thousands, of people, in an atmosphere which can be quite heated. One party or the other may seek to create, and succeed in creating, an impression that the Court has taken sides in an improper way or made some extravagant decision beyond its power. This is what the applicants, in my opinion, have done here.

18. The current standard of press reporting of litigation is not always such as to make it an occasion for remark that some aspects of a judge's reasons are not reported accurately and, in a sense, one may therefore say that this is a commonplace event. What is not so commonplace, in my opinion, is a widespread misreporting of an important kind which is sheeted home firmly to one of the parties in the litigation, as happened here.

19. I mentioned earlier that in both "The Courier-Mail" and the "Australian" a statement is made to the effect that meat employees now cannot strike in Queensland and South Australia until the injunction is reviewed, or so "The Courier-Mail" says; the "Australian" puts it slightly differently, but to much the same effect. Mr Russell says, correctly, that there is no evidence that this was given to the press by the applicants or any of them; Mr Jerrard no doubt would say that it seems a coincidence. Whatever the exact source of it, and I agree with Mr Russell that I could not find on the evidence that it came from the applicants, it is perhaps a reasonable extrapolation of what was said in the press release, exhibit 1. There is no suggestion there that there is any limitation on the strike ban which I am supposed to have issued, except the reference to the strike involving more than one employer, and the width of what I was alleged to have done is emphasised on p.2 by Mr Enders, who describes the decision as having unlimited application.

20. How is a court to defend itself against this sort of thing? The law of contempt is there, of course, and may yet be availed of in this case. It seems to me that, whereas in other circumstances the situation might be met in some such fashion as Mr Russell suggested - that is, by simply suspending the effect of the order - nothing else will do here, to mark the Court's disapproval, than to rescind the order. I take into account the evidence that an order made by the Supreme Court, of a similar kind, is said to have also been misrepresented. I propose to rescind the order for interlocutory relief which I made on Friday, on the ground that it was promptly and deliberately misrepresented to the press by agents of the applicants. It appears to me that the applicants' mis-information as to what the Court did will have come to the notice of many people and misled them. It is desirable that a firm stand be taken (likely, I hope, also to be reported) against this sort of deliberate misrepresentation of the Court's actions.

21. I do not rescind the order simply to uphold the dignity of the Court, although that is an important factor. My decision to rescind the order is motivated by a view that the proper exercise of this particular jurisdiction is rendered impossibly difficult if the parties are to be free to broadcast, no doubt with the worst of motives, deliberate misrepresentations as to the effect of what the Court has done. I hope that the fate of these applicants will discourage others.

22. There are three other matters which require mention. The first is that the order of Byrne J. will continue to stand. No attack was made upon it today by Mr Jerrard, nor could one justify putting an end to it because of misrepresentation of my own order. The second is that there are orders which I made with respect to directions on Friday, which will also stand. The third is that I desire to hear Mr Jerrard on the question of costs.

(Submissions were made.)

23. The order I will make is that the interlocutory injunction I granted on Friday is rescinded and the costs of and incidental to the application made by the respondents to rescind it are to be taxed and paid by the applicants. Otherwise the orders which I made on Friday will stand.