: \a4 JUDGMENT No. saat mal Sout X CATCHWORDS - TRADE PRACTICES — Secondary boyeott — interlocutory proceedings -- whether interlocutory orders should be granted — 'balance of convemence!' — adjournment for short tuume pending coneiliation procecdings. CONCILIATION AND ARBITRATION — relationship between s.45D Trade Practices Act and Coneihation and Arbitration Act — How President of the Concilation and Arbitration Commission may otherwise 'become aware' -- whether Judge of the Court may act to make President aware. Trade Practices Act 1974 ss 45D, 80 Coneihation and Arbitration Act 1904, s 88DC(1)(e) ALCAN AUSTRALIA LIMITED v AUSTRALIAN BUILDING CONSTRUCTION EMPLOYEES AND BUILDERS LABOURERS' FEDERATION & ORS No G109 of 1984 KIRBY J 6 APRIL 1984 SYDNEY IN LHe Fs Dan AL COURT Or AUptRALIA ) 'nifW SOUTH WALES DISTRICT REGISTRY ) G109 of 1984 , GENERAL DIVISION ' ) ' . a BETWEEN: ALCAN AUSTRALIA LIMITED Applicant AND: AUSTRALIAN BUILDING CONSTRUCTION EMPLOYEES AND BUILDERS LABOURERS' | FEDERATION First Respondent NORMAN GALLAGHER Second Respondent NORMAN RUST Third Respondent NORMAN WALLACE Fourth Respondent . STEVE BLACK Fifth Respondent - HARRY NOWICKI - Sixth Respodent - CORAM: Kirby J 6 April 1984 REASONS FOR JUDGMENT In this matter the Appheant seeks rehef under s.45D of the Trade Practices Act 1974 in respect of certain conduct by the First Respondent (which I shall call the BL) and its officers and members. The situation disclosed by the evidence is very serious indeed, not least because of evidence of violence as recently as today at the Applicant's Granville plant and yesterday in the offices of the Applicant's solicitors. Such conduct is to be deplored. I shall say no more about those events as the Respondents may be ignorant of them. The Respondents were not represented before me, although it is clear that some at least of the Respondents were duly served with notice of ihe proceedings. The primary dispute which gives rise to the developments complained of is a demarcation issue involving the BLF and other organisations engaged in the Kurri Kurri operations of the Applicant. That dispute and its sequelae have twice been before the Australian Coneihation and Arbitration Commission (Commissioners Merriman and Lear) but without resolution. it is my view, for reasons which I shall elaborate later, that a sufficient case has been made out for interlocutory relief — at least against the first, second. fourth and sixth Respondents. Certain problems as to service of process arise in the case of the third and fifth Respondents which Iwill not deal with now, The question is therefore whether the 'balance of econvenience' requires immediate interlocutory orders of the kind now sought by the Applicant. Cf Australian Coarse Grain Pool Pty Ltd v Barley Marketing Board of Queensland (1982) 46 ALR 399 (Gibbs CJ). The Applicant offers the Court the usual undertakings as to damages. Seetion 88DC of the Conciliation & Arbitration Act 1904 provides that in cases such as this, the Australian Concilation and Arbitration Commission is empowered to settle the dispute by conciliation if, amongst other things, the Appleant or a Minister notifies the President or the Registrar of a dispute or the President 'otherwise becomes aware' of the existence of a dispute. It has been submitted to me that it is no part of 'the function of a Judge of the Court to trigger the mechanism by which the President becomes so aware. Certainly, there is no statutory provision empowering a Judge, in terms, to notify the President. However, I draw an inference from the provisions of para 88DC(1)(e) that the Parliament assigned high importance to invoking the power and authority of the President in cases such as this and attemptin& coneiliation so that an attempt might be made to deal with the basic dispute rather than only with conduct that may be evidence of that dispute. It 1s my view that a Judge of the Court has the power to make the President aware — and I intend to aet so that he is made aware. By the same token, the situation disclosed by the evidence is serious and apparently deteriorating. Accordingly, I would not have in mind a lengthy adjournment of these proceedings for interlocutory relief and further directions. , . THE ORDERS OF THE COURT ARE: l. That the President of the Australian Conciliation and Arbitration Commission be made aware of the existence of a dispute relating to a contravention or a threatened, impending or probable contravention of s.45D of the Trade Practices Act 1974 being a dispute in which the First Respondent, an organisation of employees registered pursuant to the Conciliation and Arbitration Act 1904, 1s involved. I myself intend to so make the President aware of the dispute. I will make available to the President the affidavits (other than the affidavits relating to service on the Respondents) filed in the Court. Copy of my notification will be available to all parties from the Registrar on Monday, 9 April 1984. 2. 5. 6. 8. That the Registrar notify the Minister for Employment and Industrial Relations of the application made by the Applicant concerning the existence of a dispute involving (amongst others) the Applicant and the Respondent organisation. That the Application be relisted for mention on Wednesday 11 April 1984 at 9.30 am at which time the Court will proceed to consider any orders which convenience requires in the light of — (a) the action, if any, taken by the President and the Conciliation and Arbitration Commission; and (b) the circumstances then obtaining. In the meantime, the application for the interlocutory injunctions sought by the Applicant are stood over to that time. That the Applicant have until 4.00 pm on Monday 9 April 1984 to file any additional affidavits on which it proposes to rely and that the time for service on the Respondents be abridged to 4.00 pm on Tuesday 10 April 1984. . That the Respondents have until 4.00 pm on Tuesday 10 April 1984 within which to file any affidavits they wish to file. That there be liberty to apply to relist the matter on twenty-four hours' notice to the Registrar. That the Registrar notify the Respondents of these orders by telegram addressed to the Registered Office of the First Respondent. Costs reserved. I certify that this and the four preceding pages are a true copy of the Reasons for Judgment herein of his Honour Justice Kirby. - Associate Dated: 6 April 1984