was IN THE FEDERAL COURT OF AUSTRALIA ) ) VICTORIA DISTRICT REGISTRY ) No. V23 of 1981 ) INDUSTRIAL DIVISION ) The HONOURABLE RALPH WILLIS (who sues as Minister of State for Employment and Industrial Relations) and OTHERS Applicant The AUSTRALIAN BUILDING CONSTRUCTION EMPLOYEES ' AND BUILDERS LABOURERS' FEDERATION ee Respondent CORAM: Evatt, Sheppard and Morling, JJ. DATED: 19 December 1983 REASONS FOR JUDGMENT THE COURT: The hearing of evidence in this application for the cancellation of the registration of the respondent as an organization under the Conciliation and Arbitration Act 1904 commenced on 8 November 1982. Evidence continued until March 1983. Evidence was given in respect of a variety of incidents which occurred in N.S.W., The Australian Capital Territory and Western Australia. The Court sat in Melbourne, Sydney and Perth. The oral evidence extended over 3,000 pages of transcript; there are numerous exhibits themselves involving many hundreds of pages. On 16 March 1983 the Court, on the application of all applicants, adjourned the proceedings with liberty to the parties to apply. The application was consented to by the respondent. The purpose of the adjournment was to enable the parties to confer under the chairmanship of Mr. Vosti, a retired commissioner of the Australian Conciliation and Arbitration Commission, to ascertain whether some agreement could be reached which might bring industrial peace into the building and construction industry in Australia. The subsequent history of the matter is recorded in the transcripts of the proceedings of the Court for 21 March 1983, 6 April 1983, 16 May 1983 and 31 October last. It is summarised at pp. 3391 - 3392 of the transcript for 31 October 1983. On 12 December 1983 the matter was again in the list. On that day the Minister of State for Employment and Industrial Relations sought leave to discontinue the proceedings. He did so because the respondent has offered an undertaking as to its future conduct. The undertaking has been offered as an undertaking to each of the applicants including the Minister and to the Court. It 1s not acceptable to any applicant other than the Minister. The remaining applicants, who comprise a number of employer organisations in the building industry, by their Counsel describe the undertaking as: "meaningless, uncertain, unenforceable and wholly unacceptable." During the course of the argument which took place on 12 December 1983 difficulties were raised py members of the Court about the Court accepting the undertaking. The first question to be determined is whether the Court should accept it. Rather than set it out in these reasons we have appended a copy of the undertaking to them. We have not appended copies of the three attachments referred to in it. For present purposes they are sufficiently described 1n paras. 3, 4 and 7 of the undertaking itself. An undertaking to the Court is given in lieu of an injunction and, if broken, is treated as the equivalent of an order for the purpose of enforcement; Thomson Australia Holdings Pty. Limited v. Trade Practices Commission (1981) 37 A.L.R. 66 at p. 76. The majority of The High Court in that case added (ibid.): "As an undertaking is given in lieu of an injunction and is enforceable in like manner, the principles which govern the grant of an injunction by a court must guide it in deciding whether it should accept an undertaking." The Court 1s always concerned to ensure, so far as it can, that its orders are certain and provide clearly for what parties affected by them are bound to do or refrain from doing. Since undertakings are enforceable in the same way as orders the same attention to the terms of an undertaking offered to the Court is required as in the case of an order. This is so whether the undertaking 1s acceptable to the claimant in the proceedings or not. What we have said 1s trite. But we have said it in order to emphasise to the parties why the Court was concerned to see whether the undertaking which the respondent has offered 1s sufficiently certain to warrant its acceptance by the Court. The Court's attitude in this respect has nothing to do with the merits or substance of the case, industrial harmony, or the Minister's own decision to accept it. Whether he accevts it 1s a matter for him. He is not concerned with the same considerations as are we. Having considered the terms of the undertaking we are satisfied that it should not be accepted as an undertaking to the Court. It is too uncertain. We do not give detailed reasons for this conclusion. It is sufficient to draw attention to para. 1. It may have been one thing 1f it had said: "To comply with its obligations as an organisation of employees registered under the Act." Minds may differ on this question. But the vice of the undertaking in its present form 1s in the use of the words, "in the same terms as other organizations of employees registered under the Act." The question 1s what meaning does the undertaking have especially taking into account the words last quoted. One possible meaning is that the respondent will only be in breach of that part of the undertaking if any breaches of the Act committed by 1t are more extensive or more serious than breaches committed by other registered organizations. There are about 150 organizations of employees registered. All no doubt behave in markedly different ways. This in part will be due to the different industries in which their members are engaged, the different problems which confront their executives and members and a host of other matters. If it were suggested that there had been a breach of para. 1, how could one ever determine satisfactorily whether that was so or not? The yardstick 1s simply too vague and uncertain. Of course, the undertaking may be intended to mean something different to that which we have postulated. But 1f so, that meaning has escaped us. If it is intended to mean something different, that only highlights the difficulty which there as in the Court's acceptance of what the respondent has offered, During the hearing there was discussion with Counsel for the respondent in which it was suggested that the wording of para. 1 might be altered to make clear what was meant. Since the adjournment we have been informed by the solicitor for the respondent that no change to the wording of the paragraph is possible. Apart from the meaning of the words used in para. 1, there needs to be considered the terms of para. 2. This obliges the respondent to have regard "to the policies of the trade union movement and its (the respondent's) collective commitment to such policies." That puts a qualification on the obligation imposed by para. 1 which increases the uncertainty of the content of the obligation in para. 1. Para. 2 seems to envisage that there may be circumstances in which the respondent will not be obliged to comply with para. 1 notwithstanding that it will nevertheless be in breach of obligations imposed upon it by the Act under which it is registered. Apparently, 1f the policies of the trade union Movement run counter to the provisions of the Act, the provisions of para. 1 are not to apply. For the reasons we have given we decline to accept the undertaking which has been offered. Nevertheless, we are still asked to grant the Minister leave to discontinue the proceedings. The application is not opposed by the remaining applicants nor by the respondent. Ordinarily, the Court will grant a party leave to discontinue proceedings brought by him provided it 1s satisfied that appropriate orders have been made in relation to costs and that no injustice will be caused the other party by the bringing of fresh proceedings if the Court is of opinion that it would be unjust that fresh proceedings be brought. Normally the Court would not be interested in doing otherwise than giving effect to an application for leave to discontinue where no other party to the proceedings opposed it. We have paused to consider, however, the circumstances of the present case. It seems to us that an application under section 143 of the Act for the cancellation of the registration of an organisation involves questions of public policy. There is a question in our minds whether an application for leave to discontinue such a proceeding 1s governed by the ordinary rules to which we have referred. The evidence which we have so far had in the matter raises, in our opinion, serious matters for consideration. We have not heard the respondent's case and the applicants' case is still incomplete, so our statement is made tentatively. It by no means represents any concluded view about the evidence we have heard. But it is our tentative view concerning that evidence which has made us pause to consider whether we should not investigate the question of whether considerations of public policy might militate against our acceding to the Minister's application. Having reflected on the matter we have decided that we should accede to it. In the administration of the Act as a whole, the Minister plays a substantial part. He was obviously intended by the legislature to represent the public interest in many situations. Such a situation is an application under section 143 itself, the section specifically providing that the Minister may make an application pursuant thereto. If the Minister, having instituted such an application, wishes to withdraw it, 1t would seem, even if public policy considerations may be taken into account, that he, representing as he does the public interest, should be allowed to act as he wishes, If the Minister subsequently wishes to be heard in the matter he may "intervene in the public interest;" see subsection 106 (1) of the Act. We wash to make it clear, however,that we are leaving open the question of whether, in the event of an applicant other than the Minister wishing to discontinue proceedings of this kind, leave to discontinue will involve an applicant demonstrating that there are no public policy considerations which militate against the grant of the application. We leave for the future the question of whether that would be a relevant consideration or not. Although we are not prepared to accept the undertaking offered by the respondent as an undertaking to the Court, we are prepared formally to note it as an undertaking given to the applicants including the Minister. It may have relevance for these proceedings which the remaining applicants desire to prosecute. It may also have relevance if any other proceedings of this kind are instituted in the future by the Minister or any other party. We give leave to the Minister to discontinue the proceedings against the respondent. We reserve all questions of costs arising as a result of the grant of that leave and the withdrawal of the Minister from the proceedings. Leave is reserved to any party to make such application in relation to those costs as he or it May be advised. It is next appropriate to give directions as to the future hearing of the matter. That is something which we wish now to discuss with Counsel. I certify that this preceding pages are a true copy of the Reasons fcr cudement herein of thy Full Court (Phir Eumb , Shyyud umd cree aay fe, MC Re. Dated : 14.12.83 A. DRAFT ONLY UNDERTAKING WHEREAS: The respondent acknowledges that registration as an organisation of employees pursuant to the Conciliation and Arbitration Act 1904 ("the Act") confers benefits upon it. The respondent: (1) recognises that such registration creates duties and responsibilities in registered organisations inter alia to utilise the means provided by the Act for the prevention and settlement of industrial disputes and otherwise refrain from conduct preventing or hindering the achievement of the objects of the Act and (2) affirms its desire and intention to participate in the prevention and settlement of such disputes in accordance with the Act. THE RESPONDENT THEREFORE: . Cc. HEREBY UNDERTAKES to the Federal Court of Australia and to the applicants as follows: I. To comply with its obligations in the same terms as other organisations of employees registered under the Act. 2. In complying with its obligations, the organisation will necessarily have regard to the policies of the trade union movement and its collective commitment to such policies. 3, The organisation agrees to honour its commitment given in the terms attached (see Attachment |) to the National Wage Principles of the Conciliation and Arbitration Commission in its decision dated 23 September 1983. The organisation, as an expression of its commitment, reaffirms its. preparedness to give the undertakings in tecms of the Memorandum of Understanding entered into between the National Industrial Construction Council and the organisations in the building and censtruction industry (Attachment 2). To comply with its obligations as an organisation registered under the Act and the terms of the Memorandum of Understanding, the organisation agrees that in developing agreements, policies, and guidelines for the improvement of industrial relationships in the building and construction industry, the prime objectives to be considered are: (a) To settle award disputes in a manner consistent with the economic strategies of the Federal Government and to improve the efficiency and stability of the building and construction industry; (b) To eliminate the incidence of widespread industrial action in support of claims for increased wages or better conditions of employment, and to minimise the level of industrial disputation over other issues; ' (c) To achieve wages and conditions that are fair and equitable having regard to the state of the economy and the circumstances prevailing in the building and construction industry; (d} , To introduce an allowance, and to adjust existing allowances in accordance with past practice, In recognition of the substantial changes which are to be implemented within the industry by this Agreement; (e) To meet regularly to consider emerging and recurring industrial relations problems; and 6. and 7. . (f) To maintain dispute settling procedures, and io improve the operation of those procedures. The organisation agrees to commit itself to the specific undertaking in the Agreement. The organisation recognises that the Agreement set out in Attachment 2 has not been able to be fully implemented, bur (a) the organisation is, consistent with the terms of the Agreement, Continuing to confer to reach settlement of the Agreement (b) the organisation undertakes that its commitments in terms of the Act will be the same as other organisations registered under the Act. The undertakings given by the organisation are supported by tne ACTU as set out in the decision of the ACTU Executive (Attachment 3). iD |%% CATCHWORDS Industrial law - application to deregister industrial organization of employees - application for leave to discontinue by Minister for Employment and Industrial Relations - relevant considerations - discontinuance of proceedings by consent. Federal Court of Australia Act 1976, Order 22, rule 2 of Rules made thereunder. AUSTRALIAN FEDERATION OF CONSTRUCTION CONTRACTORS AND ORS. v. THE AUSTRALIAN BUILDING CONSTRUCTION EMPLOYEES' AND BUILDERS LABOURERS' FEDERATION V No. 23 of 1981 Coram: Evatt, Sheppard and Morling JJ. Dated: 19 December 1983- and 18 July 1984 Sydney 2. in relation to those costs as he or it may be advised. 18 July 1984 Sydney Application discontinued by consent No order made. parties to confer under the chairmanship of Mr. Vost1, a retired Commissioner of the Australian Conciliation and Arbitration Commission, to ascertain whether some agreement could be reached which might bring zndustrial peace into the building and construction industry in Australia. The subsequent history of the matter 1s recorded in the transcripts of the proceedings of the Court for 21 March 1983, 6 April 1983, 16 May 1983 and 31 October last. It is summarised at op. 3391 -. 3392 cf the transcript for 31 October 1983. On 12 Decemper 1983 the matter was again in the list. On that day the Mirister of State for Employment and Industrzal Relations sougnt leave to discontinue the proceedings. He did so because the respondent has offered an undertaking as to izs future conduct. The undertaking has been offered as an uncertaking to each of the applicants including the Minister and to the Court. It 1s not acceptable to any applicant ether tnan the Minister. The remaining applicants, who comprise a numcer of employer organisations in the building industry, by their Counsel descrine the andertaking as: "Meaningiess, uncertain, unenforceable and wnolly unacceptable." During tne course of the argument wnich toox place on 12 December 1983 arffi culties were raised py nembers of tae Court about tne Tourt accepting the undertaking. Ta First questicn to be Getermined is*whethe: the Court should accept 1t. Ratner tnaan set it out in tnese yvcasors we have appended a copy of the undertaking to them. We have not he accepts it 1s a matter for him. He 1s not concerned with the same considerations as are we. Having considered the terms of the undertaking we are satisfied that it should not be accepted as an undertaking =o the Court. It 1S too uncertain. We do not give detailed reasons for this conclusion. It 1s sufficient to draw attention to para. 1. It may have been one thing if it had said: "To comply 'with 1ts obligations as an organisation of employees registered under the Act." Minds may difiecr on this question. But tne vice of the undertaking in its present form 1s in the use of the words, Ns in the same terms as other organizations of employees registered under the Act." The zuestion 1s what meaning does the undertaking iave especiaily taking unto account tne words last quoted. One possiple meaning is that tne respondent will oniy se an breach of tnat oart of tae underta<ing 1f any breaches of the Act commitced by =t are more 2xXtensive Or more serious than breaches committed by other registered organizations. There are about 150 organzzations of employees registered. All no doubt penave in markedly different ways. This in part vill be due to the different urdustries in which their memeers are encaced, the differant crobiers which confront their executives and mempers anc a host of otaer ratters. If it were sugcestecd that <cnere had been a breacan of tara. 1, now could one ever determire satisfactorliy wnectaer *nat was so or not? The yardstick 2S simply too vague and uncertain. Of course, still asked to grant the Minister leave to discontinue the proceedings. The application is not opposed by the remaining applicants nor by the respondent. Ordinarily, the Court will grant a party leave to discontinue proceedings brought by him provided it 1s satisfied that appropriate orders have been made relation to costs and tnat no injustice will be caused the other party by the bringing of fresh proceedings if the Court 1S of opinion that it would be unjust that fresh proceedings be brought. Normally the Court would not be interested in Going otnerwise than giving effect to an application for leave to discontinue where no other party to the proceedings opposed it. We have paused to consider, however, the circumstances of the present case., It seems to us that an application under section 143 of the Act for the cancellation of the registration of an organisation involves questions of public policy. There LS a question 1n our minds whether an application fer leave to discontinue such a proceeding 1s governed by the ordinary rules to which we nave referred. The evidence which we nave so far nad in the matter raises,1in our opinion, serious matters for consideration. We have not heard the respondeni's case and the applicants' case 1s still incomplete, so our statement 1S made tentatively. It by no means represents any concluded view about the evidence we have heard. 3ut 1t 15 our tentative view concerning that evidence wnich has made us pause to consider whether we should not investigate the question of whether considerations of public policy mignt militate against our acceding to the Minister's application. in any other party. We give leave to tne Minister to discontinue the proceedings against the respondent. We reserve ali questions of costs arising as a result of the grant of that leave and the withdrawal of the Minister from the proceedings. Leave 1s reserved to any party to make such application in relation to those costs as he or it May be advised. It is next appropriate to give directions as to the future hearing of the matter. That 1s something which we wish now to discuss with Counsel. Icertify that this and the seven (7) preceding pares are a true copy of the sons fcr guaeme it herein of th Full Cut la Euatt CPhabley Cuntk ago Keven 7) ld ure Meow WR, Assaciak D Tated 14 12.83 The organisation, as an exoression of its commitment, reaffirms its Oo ? preoaredness to give the undertakings in terms of the Memorandum of Understanaing entered into between the National Inaustrial Construction Council and the organisations in the building and oO c=] Construction industry (Attachment 2). To comply with its obligations as an organisation registered under the Act and the terms of the Memorendum of Uncerstanding, the organisation agrees that in developing agreements, policies, and guidelines for the improvement of industrial relationships in the pbuilding and construction industry, the prime oajectives to de ' considered are: (a) To settle award disputes in a manner consistent with the economic strategies of the Federal Government and te improve the efficiency and stapil.ty of the building and Construction sndustry; (b) To eliminate the incidence of widespread industrial action .n support of claims for increased wages or better conditions of employment, and to minimise the level of industria: disputation over other issues; ' (c) To achieve wages and congitions that are fair and equitable having regard to the state of the economy ana the circumstances prevail.ng in the osuiicing and construction industry; (d) | To introduce an allowance, and to adjust existing allowances in accordance with past practice, in recognition of tne substantial changes which are to be implemented w.chin the industry by this Agreement; (e) To meet regularly to consider emer ging and recurring industrial relations problems; and oe IN THE FEDERAL COURT OF AUSTRALIA V No. 23 of 1981 VICTORIA DISTRICT REGISTRY INDUSTRIAL DIVISION BETWEEN : AUSTRALIAN FEDERATION OF CONSTRUCTION CONTRACTORS AND OTHERS Applicants THE AUSTRALIAN BUILDING CONSTRUCTION EMPLOYEES' AND BUILDERS LABOURERS' FEDERATION Respondent CORAM: Evatt, Sheppard and Morlina JJ. DATED: 18 July 1984 STATEMENT ON DEISCONTINUANCE OF PROCEEDINGS THE COURT: The hearing of this arvlication for the deregistration of the respondent Jnion commenced in Melbourne un November 1982. The hearina proceeded in Melbourne and Sydney during the balance of tne year and in Perth in February i983. ft was to have proceeaed in Melbourne in March of that vear, but at the request of tne parties, who then included the Minister for Employment and Industrial Relations, was adjourned to enable discussions and negotiations to take place. There was no further hearing of evidence in 1983. On 12 December 1983, the Minister applied for leave to discontinue the proceedinas on his part. On 19 Sub-rule 2(2) has no application to the circumstances of this case. As we read the rule, the parties are entitled to take the course announced by counsel for the applicants. It obviates the need for leave to be obtained. Upon filing in Court of the notice of discontinuance this morning, the proceedings came to an end. It is therefore inappropriate for the Court to express any view on the propriety of the course the parties have taken whether from the point of view at - the public interest or otherwise. I certity that this andthe Q- preceding pages weatrle* 'of rie seasensfor statement spedgrrese herein of .e Court S. P. HUTCHICON Associate Bated (9 TOLY 1984