CATCHWORDS 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. LAWRENCE NOEL GIBBINS & ORS. v. THE AUSTRALIAN MEAT INDUSTRY EMPLOYEES UNION & ORS. VG No. 99 of 1985 25 June 1986 Smithers J. Melbourne IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VG No. 99 of 1985 GENERAL DIVISION BETWEEN: LAWRENCE NOEL GIBBINS, MARLENE JUNE GIBBINS and DALE STEHR BAKER (Applicants) AND: THE AUSTRALIAN MEAT INDUSTRY EMPLOYEES UNION, ARTHUR BIRD, JOHN KENNETH BRUNT, WALTER F. CURRAN, BERT HUTCHINS, JACK O'TOOLE and THOMAS BORTHWICK AND SONS (PACIFIC) LIMITED (Respondents) Judge Making Order: Smithers J. Date of Order: 25 June 1986 Where Made: Melbourne MINUTE OF ORDER THE COURT FINDS THAT: 1.1 On 11 September 1980 the respondent Thomas Borthwick & Sons (Pacific) Limited, (Borthwicks) being accustomed to acquire services from certain carriers including the applicants Gibbins 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 1.2 1. 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 subyect 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. That on or about 11 September 1980 Borthwicks arrived at an understanding with the respondent Union that in the implementation of the conciliation agreement Borthwicks would not permit carriers or trucks who 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. Since the making of the conciliation agreement and arriving at the understanding referred to above Borthwicks has implemented and given effect to each of the same in all respects. 1.4 1.5 That by reason thereof carriers have suffered loss and damage and the trade and commerce of farmers and graziers has been interfered with and they have suffered damage in consequence thereof. That the respondent Union aided, abetted, counselled and procured Borthwicks to make the conciliation agreement 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. THE COURT ORDERS THAT: The application insofar as it relates to s.45D(1A) of the Trade Practices Act 1974 is dismissed. In respect of the application insofar as it relates to ss.45E(1)(a) and (c) of the Trade Practices Act 1974 judgment be entered for the applicants. FURTHER THE COURT ORDERS THAT: 3. The respondent Borthwicks by itself its servants and agents be restrained from: {a) (b) (c) 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; 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; 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 {d) (e) or indirectly knowingly concerned 1n or party to any such refusal or failure. 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; 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 ta 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 or them bringing stock to Borthwi abattoir at Portland. him cks' (f£) from permitting its employees or agents concerned with the purchase of stock for Borthwicks or carriage of stock to Borthwicks' abattoir Portland to be or remain of the belief the at or understanding that 1t 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 abattoir only carriers not subject to such ban; The respondent Union by its officers, officials the or members, servants or agents and the respondents Arthur Bird, John Kenneth Brunt, Walter F. Curran, Hutchins and Jack 0'Toole be restrained implementing or giving effect to or complying with Bert from 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) (b) 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; 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 Grinding livestock to Borthwicks abattoir at Portland. 5. The respondents. to pay the applicants' casts of this application excluding any costs exclusively referrable fo the issue arising under s.,45D(1A) of the Trade Practices Act 1974, but including any reserved costs. Poy . That the applicants pay to the first ta sixth cespondents the costs incurred by them which were 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. 7. There be liberty to all parties to apply with rererence fo the content of any injunction which may be made on the findings herein and generally. NOTE: — Settlement and entry of Orders 15 dealt with in 0.36 of the Rules of the Court. IN THE FEDERAL COURT OF AUSTRALIA VICTORIA OLSTRICT REGISTRY GENERAL O[VISLON BETWEEN : AND: VG No. 99 of 1985 LAWRENCE NOEL GIBBINS, MARLENE JUNE GIBBINS and DALE STEHR BAKER (Applicants) THE AUSTRALIAN MEAT (INDUSTRY EMPLOYEES UNION, ARTHUR BIRD, JOHN KENNETH BRUNT, WALTER F. CURRAN, BERT HUTCHINS, JACK 0' TOOLE and THOMAS BORTHWICK AND SONS (PACIFIC) LIMITED (Respondents) \ Coram: Smithers J. Date: 25 June 1986 REASONS FOR JUDGMENT 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 tthe Act) in respect of alleged Part IV of the Act. ATT contraventions ot provisions ot tvs Against the Union the applicants allege contravention by 1t ot the provisions of s.45D:(1lA). Against Borthwicks they allege contraventions of ss.45Eil)(a) and tc). Each respondent 1s alleged to bea party knowingly concerned within the meaning of s.80(1) of the Act, in the contraventions alleged to have been committed by the other. At all material times Mr. and Mrs. Gibbins have carried on business as carriers of livestock and other 1tems for farmers and others and they stili carry on that business. Mr. Baker has carried on business as a grazler on a property an South Australia, and Borthwicks have carried on the business of conducting abattoirs at Portland and Brooklyn in Victoria and elsewhere. The Snion ia an organization of employees registered as such under the Conciliation and Arbitration Act 1904 (C & A Act). At all material timés members of the Union have been engaged as drovers, slaughtermen or otherwise as employees of Borthwicks. 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 Fortland harbour, The Unlen objecta to the export of live sheep because 1t 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. There 1s a body of opinion in Australia which objects to the export of live sheep to the Middle East on the ground that 1t involves cruelty to sheep both in the course of transport and the killing thereof according to Middle Eastern practices. But 1t 21s not on that ground that the Union objects ta ut. And the export trade in live sheep 15 perfectly lawful. In 1980 the Union decided to take active steps to stop 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 1n 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 30. Those same drivers and carriers for whom thev 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 aR CS Portland 1£ 1 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 Tarmers who sold and. delivered stock to Borthwicks and to the carriers of such stock. 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 fo 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 tiled by Borthwicks 1n such proceedings. In support of Borthwicks' application 1t was sworn by Mr. Keith McDonald the Manager of Borthwicks that: "6, 10. ll. 12. wn The AMIEU 1s engaged in a campaign to stop or limit the exports of live sheep from Australia ... The campaign reached 1ts climax during the months of April, June and July this year with AMIEU demonstrations and picketing ot livestock carriers delivering from the Portland feed lot to the wharf at Portland. It 15 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'. ... From inquiries JI 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 ali meat processing plants within the State of Victoria. Although the present production 1s, as 1s usual for this time of the vear, only some 50% of the seasonal peak, which 15 between October and March, the supply of livestock from farmers to the Applicant's Portiand works 1s at present precarious because of the few carriers available following the AMIEU 'bans' referred to above and in the said Affidavit of Mr. Bean. 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 1ts normal capacity during 'the season' between October 1980 and March 1981 at Portland. ... 19. al. In further Farmers ain 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. 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 ic) the Applicant 1S suffering and will suffer substantial loss and damage to its business by reason of the ban. support of Borthwick's application it sworn by Mr. Bean its Industrial officer that: "10 I then showed the list to the AMIEU 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. Ee was 12. On my aimstructions, 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 1t 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. At about 1.10 p.m. on Friday l6th 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 1f they brought livestock to Portland'. eee 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 sufficrent 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 qrew 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. 15. 18. 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 unformed 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. 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. Iwas present at a discussion between Mr. K.A. McDonald, the Applicant's Southern Reqional Manager and the Respondent Smith (the AMIEU's assistant works delegate at Portiand' ) on Wednesday, 4th June, 1980. Mr. McDonald said that the union's actions were putting the works 1n jeopardy because the bans on the supply of stock were restricting the Applicant s_ production by limiting the numbers of livestock for 20. L 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 ot Portland members of the AMIEU and the Prime Minister. After fhat 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 11ft 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. ... 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. EL Cameron. Mr. Robertson refused ... I then told Mr. Robertson that he was being asked to perform only his normal duties and that 1f 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 unformed 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 22. 23. LO. Applicant as Union members would not feed the stock at Portland. »». Me. Brunt then came to the works and asked me to rescind the suspension. I refused to do so. A little later Mr. Brunt intormed 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. »». on the 4th July and at the general meeting of AMIEU members at Portland 1 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. ... On Bth 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 tly 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 s0, 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 siaughter because of the ban on ll. 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 ona 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 ot livestock to Portland' and accordingly place the whole enterprise in jeopardy. At the present time the season 1S at a 'low' and 'Portland' 1s 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' 1s 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 avallable 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 otf 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." 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 inthe Federal Court. It would appear that for the purposes of Division SA of the C & A Act, the existence of the proceedings in the Federal Court 18 presumed to create or involve a dispute to which Division SA 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 anstitute 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 1n any such proceeding are those only 1n Division l 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 13. take effect as an award. [f an agreement be reached it 15 enforceable, if at all, only according to the law of contract. 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 bhorthwicks and would not kill such stock 1f they were unloaded or having arrived in a banned truck and been turned away, later came in some other way onto the works. Those carriers were under the Union ban. Borthwicks sought to induce the Union to lift ats 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 14. eight. The applicant Gibbins was one of those with respect to whom the ban was Lifted. ft 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". As to the carriers with respect to whom the ban was not lifted Borthwicks agreed that they "would not be invited" onto 1ts abattoir and that 1f a truck of any such carrier was brought to the premises Borthwick would mot vequire 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 aie ship. This 1S apparent from the circumstance that it was agreed between the Union and Borthwicks that 1f 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 abattour. Neither Mr. & Mrs. Gibbins nor Mr. Baker were present or had any knowledge of this agreement. Nor 1t would seem were or did any other carriers. even those remaining banned. Section 88DE of the C & A Act provides that the parties toa proceeding under s.88DC are the immediate parties involved and, 1f the dispute relates to conduct in relation to the supply of goods or services to, or the acquisition of goods ar 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 qrazlers. gection S88DE(3) provides that the Registrar shall give.notice of a proceeding 1n relation to a dispute the subject of conciliation proceedings under Division 5A to every person who 1s a party to the proceeding by virtue of s.88DC (1)(e) and (f), namely, the affected parties. It 1s 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 ut likely that any oft the affected carriers were members of that Federation. The aqreement 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: Ll. It 1s accepted that for many and varied 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 ta the works, nor will the company, or any of its agents, require members of the union to attend those known persons. The company agrees to give work to M. Pye and D. Quayle, providing their rates are competitive. It 1s accepted that persons other than the parties who have involved themselves un 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 1n 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. 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 unton in this matter. ft is aqreed 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 va or its officers or members in relation to the Trade Practices Act or any other Act that may be applicable, e1lther 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 iSth September, 1980. 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: "Tt would appear trom private discussions with the parties, that both ot 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 anformed 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 [ am prepared to say that what has been reported to me asa resolution of the dispute could only be regarded as proper in the circumstances and I recommend it. 18. 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 Esigned] Deputy President" 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 1t. The only meaning to be attributed to 1t 1s that 1t 1s a declaration that if carriers desire to do 19. 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, 15 a naive and iungenuous 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. It 1s 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 trom liability to the applicants which might otherwise have attached to them under ss.45D or 45E in respect of conduct engaged in by them 1n 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. Part 5A of the C & A Act 1s designed to provide an opportunity to parties to a proceeding under 5s.45D or 45E to bring the dispute between them before a member of the Commission with a view to conciliation and possible resolution thereby ot the dispute. Clearly, 1f an an atmosphere ot conciliation an agreement ot a practical nature can be negotiated and the delays, costs and inconvenience of an action at law be avoided, that 15 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. But what 15 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 1t from liability to other persons under ss.45D or 45E 1f that conduct constituted a contravention thereot. It would be surprising and hardly an accordance with justice 1f it did. I[t 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 1s complete. The agreement 1s but an agreement enrorceable at law according to its terms not under the C&A Act. Those entities who are parties to the agreement are bound by 1t, but it does not arfect the legal rights or diabilitires ot entities not being parties to it. 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 1s 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 1s 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 Sorthwicks was able to enunciate with any conviction the effect of s.88DG on any other basis. In addition the provisions of s.45E(2) of the Act point strongly against the applicant's submission. It provides: "C2) Sub-section (1) does not apply in relation to a contract, arrangement or understanding that 1s in writing if the second person mentioned in that sub-section 18 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." tw ba The substance or this provision 1s neatly encapsulated in the CCH heading thereot, namely, "Consent of tarqet". Where "the target" consents in writing to a contract, arrangement or understanding between other parties which affects him, or 15 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 1s contended by the applicants in this proceeding the agreement arrived at by conciliation under s.88DC or the € & A Act 1s a contract, arrangement or understanding within the proscription of s.45E( lL) 1t as 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 1s shown that there was and 15s 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 1t in full force. It may be asked why there 1S no provision concerning s.45D 1n similar terms to s.45E(2). The answer is that 1f 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 1s inevitably a party thereto. In my opinion it 1s manitestly clear that in the absence of agreement by a party concerned, conciliation proceedings by ty e under Part SA have no effect upon the rights and liabilities of such party. The claim against the Union and its Otticers under s.45D( 1A) Section 45D(1A) 1s in the following terms: "(1A) Subject to this section, a person. shall not, in concert with another person, engage un 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) trom engaging 1n 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." Tt 1s not difficult to conclude that the Union and its officers engaged 1n conduct tor the purpose and having the likely etfect 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 24. 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 thelr trade and commerce 1s 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 or trade or commerce being conducted by any carrier save that aspect thereot which concerned delivery of stock to Borthwaicks. The ban was on persons having a particular characteristic, namely, that they had delivered stock at the whart or crossed the picket line established to prevent such deliveries. 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 Sorthwicks if the delivery of sheep to the whart was not prevented or substantially hindered. Thus the purpose included hindering or preventing the export ot live sheep to locations overseas. But Mr. Dalton 0.C. for the applicants did not rely upon this purpose for the good reason, no doubt, that 1t 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 tate or 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) 1s concerned with agreements hindering or preventing the "target" person himself in his overseas or interstate trade. But ot 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 1n 1985 and the carriage of those sheep by the applicant Lawrence Gibbins from South Australia to Borthwicks which surfered a direct hindrance pursuant to the agreement between the Union and Borthwicks was a direct interference ot trade among the States both ot 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 ot stock to Borthwicks. And 1t is said that the purpose ot the conduct in question was to hander that trade. In a sense that 1s true. But 1t 1s also true -that the purpose of hindering that trade was not related ty "to 1ts interstate characteristic. It was related to the conduct of the carrier in having passed the picket line. As a result of that one aspect or the trade of the carrier and the farmer were intended to be hindered or prevented whether 1t was trade among the States or trade intra-State. In relation to that intended hindrance or prevention it 1s not shown that the conduct was engaged in with any thought as to whether the trade struck at was interstate trade or any sort or trade other than that 1t was the carriage ot livestock to Borthwicks by a banned carrier. Can 1t be said that conduct engaged 1n in such circumstances was engaged in for the purpose of hindering interstate trade? The answer, [ think is, No. As Deane J. said in Tillmanns Butcheries Pty. Ltd. v. AMTEU & Ors (1979) 27 ALR 367 at 382 and 383: "The 'purpose' referred to in s.45D(1) is. the 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. FO of T (1964) 111 CLR 443 at 468). It suffices, ror 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 5,45D(1) of the Act 18, ta adopt the words of Viscount Simon LC in Crofter Hand Woven Harris Tweed Co. Ltd, v. Veitch £19421 AC 435 at 444-5, to be answered not by rererence to whether it was appreciated that the relevant conduct might have the specitied effect, but by reterence to the real reason or reasons for, or the real purpose or purposes ot, the conduct and to what was in truth the object in the minds 27. mt the relevant persons when they engaged in the conduct in concert. In so tar as the Union was concerned, 1ts purpose must, of course, be determined by reference to the purpose ot those through whom 1t acted." If one searches tor the real purpose of the action of the respondent Union and its officers one will not discover that 1t 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 1mportance or signiticance to the Union. It is to be inferred that the minds ot 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 atfected trade might be interstate trade. It follows that 1t cannot be inrerred that their purpose in taking these actions was to hinder persons from engaging in trade being in the nature of interstate trade. 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 ot hindering interstate or inter-territorial trade. 28. Accordingly the application, against the Union and its officers, so far as 1t depends upon s.45D(1A) of the Act cannot succeed. The claims made tunder s.45htlva' and ic) The provisions or those sub-sections are as follows:- "(a) has the Purpose of preventing or hindering the tirst-mentioned person Irom 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 qoods 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 tnot being a condition to which the acquisition ot such goods or services by the tirst-mentioned person Trom the second person has previously been subject by reason of ai 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 gocds or services." The circumstances in which those provisions may have application are those in which, (a) Borthwicks has been accustomed to acquire services trom particular carriers who were on the Union banned list in 1980 or thereatter and still are and whose services are still available to Borthwicks. tb) Borthwicks has been accustomed to acquire goods trom farmers and other owners of livestock who are still ready and willing to sell stock to Borthwicks. In respect of each of these situations 1t 1s necessary to examine the alleged contract agreement or understanding between Borthwicks and the Union. The question is whether there was and 1s any such contract, arrangement or understanding ot the kind designated in s.45B(1)(a) and (c). The contracts, arrangements or understandings designated in these provisions are such as contain a provision which has the purpose of preventing or hindering one ot the parties thereto from, inter alia, acquiring the services of a person with whom that party has been accustomed to acquire them, or trom 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 gqocds under a contract previously entered into between the supplier and the persons acquiring such goods. It 18 clear that in September 1980 the conciliation proceedings between Borthwicks and the Union were resolved by agreement. That agreement provided for the discontinuance ot the proceedings in the Federal Court brought by S8orthwicks against the Union and its ofticers 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 1ts abattoir, the unloading and killing ot 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 1t at sale yards or frrom tarmers at their location to the abattoir. ft trequently purchased stock, especially cattle but sometimes sheep, trom 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 tarmer. When stock was bought straight out on the farm the property in the stock passed to Borthwicks at the time ot 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 tarmer according to whether the purchase was at aprice for the animals or ona welght and gqrade basis. Purchases ot cattle at the tarm were nearly all by weight and grade but in the case of sheep the reverse was the case. In and prior to September 1980 the applicants Gibbins were carriers whose services inthe carriage of livestock from rarms to 1ts abattoir and otherwise Borthwicks had been accustomed to use. Also in the course of their business those applicants carried Livestock trom farms to Borthwicks' abattoir for farmers who engaged them so to carry their stock. 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 1t would cease to "invite" certain carriers, being "people known to the company", to come onto the works and that 1t would not require members ot 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 turther 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 or 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. Stripped of its poetry the agreement was, tirst, that the people banned by the Union ror having passed the picket lines should not be engaged by Borthwicks to carry stock or be allowed to bring stock to the abattoirs and 1f 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 SBorthwicks 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 tor good measure the agreement provided that persons shown to he 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. 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. f[t followed 33. from this that Borthwicks had to make adjustments to its manner ot carrying on 1ts business. [t had to retrain trom itself engaging banned carriers to carry stock to the abattolrs and 1t had to take steps to ensure that tarmers who sold stock to 1t on the basis that they would arrange tor the carriajye 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 Horthwicks. From then on 1t did not engage carriers on the banned list. Also, through its buyers or other staff if anformed farmers selling stock, on the basis ot delivery by them to the abattoirs, that they should not use any of the banned carriers for this purpose. And this nas 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 tor that reason banned as carriers to deliver stock to Borthwicks. There 1S 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. From the evidence 1t 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 atter September 1980, are not to carry stock to Borthwicks' abattolrs and that if they do, by accident or 34. 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 1s the understanding with the Jnion upon which Borthwicks' business has been conducted Since September 1980, The conciliation agreement was in my view, om 1ts proper construction to operate indefinitely in the future. It was determinable by either party atter one year but unless 50 determined continued to operate indefinitely and 1s still in force. If that were not so the relationship between Borthwicks and the respondents has been and still 1s governed by an understanding between them containing all the terms otf the conciliation agreement and possibly some ancillary provisions ot no signiticance in the issues before the Vourt. The Purpose which the provisions in the contract arrangement or understanding "had" {ff the conciliation agreement as originally made or as varied or extended after it was first made, 1s to avail the applicants in their claims against Borthwicks 1t must be shown that a provision or provisions in it "had the purpose" of: (a) preventing or hindering Borthwicks trom acquiring the services or banned carriers trom whom they were 35. previously accustomed to acquire such services (S.45E(1L) (as); (b) preventing or Rindering the acquisition ot stock by Borthwicks except subject toa condition not tormerly 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(1l)ic)). 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 otf 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(1l)(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". The purpose that a provision has would appear to be the purpose it 1s intended to achieve. Section 4F(a) of the Act provides: "4F. For the purposes of this Act - 'a) a provision ot a contract. arrangement or understanding or ot 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 - oe) the provision was included in the contract, arrangement Or understanding, or 1s to be included in the proposed contract, arrangement or understanding, the covenant was required to be given or the proposed covenant 15 to be required to be given, as the case may be, tor that purpose or tor purposes that included or include that purpose; and (11) that purpose was or 1s a substantial purpose; ..." Accordingly, 1t 185 necessary to inquire first, whether, whatever the nature ot the relevant provisions, they were included in the conciliation agreement tor 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 tor the purpose of preventing or hindering the acquisition of stock from persons trom 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. {ft 1s clear that the immediate purpose of including the provisions in the agreement was, with the consent ot Borthwicks, to lessen the likelihood that banned carriers would come upon the abattoir and to ensure, again with Borthwicks consent. that 1f they did the stock were not to be unloaded or killed by Borthwicks' Union employees. But 1t went further than that. It obviously was designed to prevent Borthwicks from engaging banned carriers for carrying services. Whether the relevant provisions were 1ncluded in the agreement tor the purpose aiso of ensuring that panned carriers not be used for the carriage otf stock to the abattolr 1s 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 ot 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 uf brought by non-banned carriers. Had confrontation become the rule 1t would not have been' long 38. berore the supply of stock dried up. Both parties intended theretore 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 Sltuations otf 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 ot banned carriers were supplied by the Union to Borthwicks and Borthwicks did notify vendors ot 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 retusal by the employees to unload or kill stock which they brought to Borthwicks but to exclude them from carrying stock to Borthwicks. In the light of earlier practices a purchase ot stock From a tarmer on the basis that the tarmer 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 carriér chosen was impliedly invited by Borthwicks onto the abattoirs to deliver the stock. Ir Borthwicks was to refrain from inviting banned trucks onto the abattolr to deliver stock sold to 1t by tarmers 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 GO Borthwicks intimating to tarmers that delivery by banned carriers would be unacceptable. Inevitably, the provisions 1n the conciliation agreement had the purpose that such an intimation would be given. And it was. The use ot the expression "invited" in the provision in the conciliation agreement, that persons known to Borthwicks are not to be "invited" fo come onto the works 1s inevitably a rererence 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 reterred to. The carriers came either because they had a contract with Borthwicks to carry stock to the works tor Borthwicks or because it was part or 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 1s used 1s 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. 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 40. evidence there were no other situations in which the notion ot 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. ft 15 clear, however, that 1f Borthwicks was to retrain from so inviting carriers, "being persons known to 1t" namely, the carriers on the black list, 1t was necessary tor Borthwicks to restrict the vendor's choice of the carriers to be used by them tor delivery to Borthwicks of the stock sold by them to SBorthwicks. uf 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 1t did not desire to do this. Had that course been adopted ut would have constituted the imposition or a condition into the contract with the vendors or stock within the meaning ot 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 1t had adopted that course 1t 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 41, preclude Horthwicks trom taking delivery 1n accordance with its purchase contract. Accordingly, 1t was essential tor Borthwicks to stipulate that the vendor of stock sold to it on a weljght 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 iuntormed by Borthwicks' buyers that delivery was to be made ona "clean" truck because Borthwicks could not otherwise take delivery or arrange the killing ot the stock. Vendors would, and the evidence 1s 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 reterence 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. ft 1s this very practice which 1s the subject of clauses one and three of the conciliation agreement. And it 1s this very practice which 1s proscribed. That choice is to be taken away. The invitation will no longer be general, but restricted only to "clean" carriers. In the light or past practices and the method of Borthwicks of conducting the abattoir and the practical considerations in contemplation by the parties in which the terms ot the conciliation agreement was arrived at and included therein 1t 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 abattoir trom 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 ot such stock to Borthwicks by a carrier and ina 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.45ER(1)(c)); (b) hindering or preventing Borthwicks from acquiring from the applicants Gibbins and other carriers banned by the respondent Union from delivering stock to Borthwicks' abattoirs in and about the carriage of stock to its abattoirs. (S.45E(1)(a)). 43, The reality and persistent implementation by Borthwicks of the Union bans 1s evidenced by: (a) (b) (c) (d) (e) its failure to use any banned carrier or truck tor the carriage of stock to its abattoirs since September 1980; its regular and continuing practice of intimating to vendors of stock on weight and grade terms that they were not to use banned carriers for delivery of the stock concerned on pain ot 1t not being accepted by Borthwicks; 1ts practice of acquirescing in the refusal ot its employees being members of the respondent Union to unload stock arriving at its abattoir and which 1t had purchased and intimating to the drivers of the trucks bringing such stock that they must be taken from the abattoir unloaded. 1ts acceptance from the respondent Union of updated lists of the banned carriers and trucks and 1ts tolerance of the maintenance and updating of such lists on its premises; its practice ot intorming farmers and carriers as to whether particular carriers were or were not banned. 44, It was argued by Mr. Barnard 9.0., on behalf ot Borthwicks, that all ot the conduct ot Borthwicks was pertormed under duress and that its conduct did not constitute any consensus in the terms of the conciliation agreement or 1ts subsequent implementation. It was said that 1t had no choice and acted only under duress. As to duress 1t may be observed that the respondent Borthwicks had berore 1t the choice of making an agreement in contravention or the provisions of s.45E of the Act or proceeding with 1ts proceedings under s.45D. Of course i1t was faced with possible industrial disruption if 1t proceeded to enrorce remedies under s.450. Experience of the operation of this provision would indicate that such risk 1s much less than 1s 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. [t 15 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, 1t was 1lllegal. No doubt this was explained to Borthwicks. But Borthwicks was so anxlous to have industrial peace at its +5. works that it was prepared to surrender to Union pressure and sacrifice the interests ot carriers whose services it had used theretotore and whose only offence was that they wished to carry on their lawrul occupation. It 15 one thing tor conciliation proceedings to be resolved by agreement of the persons arfected thereby. To obtain such resolution 1s no doubt the intention ot Part 5A ot the C& A Act. But 1t ais another to deal with the interests of absent parties to thelr detriment and then to say, "There you are, your interests have been traded away. You must put up with 1t". That 1s 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 ot 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 Uctober 1985 it was implementing 1t when Mr. Gibbins and other carriers were turned away and they took away the farmers' choice ot carriers. Although a director ot Borthwicks gave evidence in this case there was no suggestion that Borthwicks intends to do other than continue to implement the agreement. It was suggested that the principle applied by Franki J. in Keith Russell Simplicity Funerals Pty. Ltd. v. Cremation pociety or Australia (ACT) Ltd. & Ors 1982 40 ALR 125 18s 46. applicable to this case. But that case 1s tar removed trom this. In that case there was nothing to show a consensus, somewhat solemnly arrived at in a ceremony, and evidenced in writing, and tollowed by six years ot implementation ot what was agreed to in 1980 and a continuing intention to continue to observe 1t. The Understanding It 15 clear that the conciliation agreement not only governs by 1ts own strength but has given rise to an understanding or 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 awalting delivery to a ship. and so strong 1s the understanding as to the observance ot 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 ot carriers and trucks that are banned. It Was inevitable that this should occur because the upper management ot Borthwicks did not inform its executive start at the abattoir of the terms of the conciliation agreement. ft was probably reluctant to publish the fact that for practical purposes, it had given into the Union s demands te exclude rrom the works the carriers who otfended the Union. Borthwicks view of the effect and probably the intent of the conciliation agreement 1s to be gathered from the instruction given to Mr. Harris, namely, to ensure that there was no interruption in the operation or the abattoir, his main job being to keep that plant operating come what may. And thus 1t 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 retused to unload for that reason was effectively unable to deliver its load. Borthwicks' starf in the course or what they understood to be their duty simply acquiesced in the Union decision and made 1t clear to the driver that he must depart with his load of stock. The situation was described in the tollowing passage in the evidence of Mr. Harris: "The plant really had to be carried on. In 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 beq your pardon? --- [ would have been quite happy if there had been no bans. Oh yes, that would have solved everything. But you were taced with the bans and [ think you told me that if you told Mr. +8. Brunt that if they tried to entorce the ban they would all get the sack and that would have brought ona crisis, and [fT 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, e1ther to sack them all? --- True. Or pretend that the black truck, that the sheep had come not ona black truck but a white truck? —--- That 1s right. Ur to accept the ultimatum trom the Union and keep the black trucks out? --- That 15 right. That 1s about all there was, was 1f not? --- That is right. And 1t would seem that ot all those alternatives you were operating on the basis that 1t was wise to keep the black trucks out and reduce all these incidents? "<= That 1s right." This inability of the staff to resist the Union enforcement of the ban with respect to any condemned carrier or truck designated by 1t as on the blacklist merely reflected the fact that Borthwicks' top management had entered into the conciliation agreement iuntending to "go along with" the Union's terms. To my mind the inference 1s clear that this was the understanding between the Union and Borthwicks pursuant to which the works have operated since September 1980. And I find that arising out ot the conciliation agreement and in connection with its implementation there has 49, been, at all material times, and still 15, an understanding between Borthwicks and the Union that in the management of the abattoir the designation by the Union or its representative at the abattolr of a carrlér or a truck as a carrier or truck subject to a ban by the Union against him or 1t delivering livestock to the abattoir will be recognized by Borthwicks and its starf as valid and that the carrier or truck and the stock 1n which 1t is brought to the abattoir is not to be unloaded by the employees ot Borthwicks or otherwise dealt with by them should they be unwilling to do so. Mr. Brunt clearly regards himselt as the Master ot the situation where a question ot banning a carrier or a truck 1s 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. The bans and Borthwicks' acquiescence therein have been widely understood amongst carriers, farmers and the Union and 1ts employees. So much so that carriers have refused offers ot work trom farmers because they believe they were banned and farmers have refrained from employing carriers in the beliet that they were on the banned list. There have been few conirontations. However, in October 1982 one Lyons, a farmer ot Melville Forest engaged a carrier, Alan Fellenberg, 50. 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 ait could not be unloaded. Mr. Fellenberg was torced to withdraw. Mr. Lyons protested to the Manager who said he would look into the matter but tailed 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. In January 1985 the applicant GL. N. Gibbons carried sheep tor 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' 11 unload you, they're the ones that went through the picket line. You're not being unloaded. I spend halt the time running backwards and torwards looking at this list". As a result Mr. Gibbins had to withdraw. In February 1985 Mr. Weatherly a tarmer of Mortlake accompanied a load of his stock driven by one David Gale. cary rR 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 torced to withdraw. fn late 1985 one Terry Lane was engaged as a sub-contractor to K. & 3. Freighters to deliver a load of cardboard boxes tor the use ot SBorthwicks in packing meat. He was told by Mr. Brunt that he was on the banned list for having crossed the whart 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 An issu@€ arose as to whether 1¢ was established that prior to the sale by the applicant Baker to Borthwicks of the sheep the subject ot carriage by the applicants Gibbins tor 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 tirst weight and grade sale of sheep he had negotiated with Mr. Baker. Tk 1s clear that prior to September 1980 Borthwicks was accustomed to purchase cattle trom Mr. Baker on a weight and grade basis. So tar as sheep are concerned I have no reason to doubt that Mr. Forbes spoke the truth according to his recollection and means ot 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 an recollection, Mr. Baker was a witness whose evidence was most Impressive. On the point at issue J accept it. I am satistied 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 f am not satistied, 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 4 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. 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 trom 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 5.80 of the Act both technically and as a matter of substance. Phelps ov. Western Mining Corporation Ltd. (1977) 33 FLR 327 18 authority tor this. Conciusion 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 1t was accustomed to purchase livestock, including cattle and sheep, by contracts not subject to or including a stipulation that tor the carriage of such stock to Borthwicks the vendors should engage only carriers who were not banned by the respondent Union trom carrying livestock on to Borthwicks' abattoir, purchased livestock from such persons, and did so only by contract subject to or including a 54. condition that tor the carriage of the stock sa purchased the vendor would engage only carriers who were not subject to a ban by the Union against the carriage by them or livestock to Borthwicks' abattoir and that the stock so purchased included cattle and sheep, and refrained trom engaging the services of the applicants Gibbins and other carriers the subject of the Union ban referred to above. Union involvement in the s.45B contraventions It 18 beyond question that within the meaning of s.80(1) ef the Act the Union and the respondents Curran and Brunt have each aided, abetted, counselled and procured Borthwicks to contravene the provisions of s.4S5E(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 ot each of those 1s 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 Sorthwicks 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 1n the Union's intention to continue the bans Mr. Curran answered in the negative. Reliret The situation is that the canciliation agreement and the understanding which has arisen out of it are in tull force and the Union and its otricers and Borthwicks intend to continue to tmplement them in full. (a) (b) The result is: that Borthwicks still intends to refrain from acquiring the services of any carrier who is the subject of a ban by the respondent Union from carrying livestock to Borthwicks' abattoir; Borthwicks still intends not to acquire stock from persons from whom 1t was accustomed to acquire stock on 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 ot a contract existing between Borthwicks and such persons that such persons engage only carriers who are not ona list of carriers banned by the respondent Union from delivering stock to the abattoir; and i) (ec) that the Union andthe respondents Curran and Brunt intend to maintain such list and implement such bans by directing or procuring i1ts members, being employees of Borthwicks, to refuse and refrain trom unloading, killing or otherwise dealing with stock brought to Borthwicks by a carrier or ona truck on such banned list tor the purpose of maintaining thelr bans on carriers who have been connected with the live sheep export deliveries to ships at Portland Harbour or to Paddy's teed Lot. Thus the intention or each of such respondents 1s that contraventions of the provisions of ss.45E(1)(a) and 45E(1l)(c} of the Act are to continue. The jurisdiction of the Court 1s 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 etfect to the conciliation agreement and the understanding between it and the Union reterred to above, in those aspects thereot. in the implementation of which, Borthwicks 1s prevented from employing carriers who are subject to Union bans and farmers are prevented from employing such carriers trom 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 etfect to the conciliation agreement and the understanding in any way which un ~ promates the exclusion of those carriers trom employment by forthwicks or tarmers. Formulating this un terms appropriately specific tor injunctive relief {[ consider that the Court should: i. Restrain Borthwicks by 1ts servants and agents trom: (a) (b) «c)} implementing or giving effect to the conciliation agreement or the understanding referred to above by retraining trom or falling, pursuant thereto, to acquire from the applicants Gibbins services in and about the carriage of livestock; implementing or giving effect to the conciliation agreement or the understanding referred to above by retraining or tailing 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 ot livestock; directing or procuring, consenting to or acquiescing in a retusail or failure by ats employees being members ot the respondent Union to unload or kill or otherwise deal with stock brought tc Borthwicks abattoir at Partland by a marr1er or in a truck who or which are subject to a Union ban, relating to or connected with the Ttonciliation agreement or understanding referred bo 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 réfusal or failure. 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 desiqnated 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 abatto1r consenting or acquiescing in or being a party to the refusal or failure to unioad stock brought to the abattoir by such carriers or on such trucks or to kill the same; from instructing 1ts employees or agents concerned with the purchase of stock for Borthwicks or the carriage of stock to Borthwicks' abattoir: (1) that the carriers to be engaged for such carriage shall only be those not the subject ot a ban of the respondent Union against them bringing stock to Borthwicks' abattoir at Portland; or (121) that they should inform vendors ot 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. (ft) from permitting 1ts employees or agents concerned with the purchase of stock tor Borthwicks or the carriage or stock to Borthwicks' abattoir at Portland to be or remain of the belief or understanding that 21t 1s part of their duty or tunction to engage tor carriage to the abattoir only carriers not subject to the abovementioned ban, or to anform vendors of stock to Borthwicks that they should engage to carry the same to the abattoir only carriers not subject to such ban; to restrain the respondent Union by its officers, officials or members, servants or agents and the second to sixth respondents trom implementing or giving effect 60. to or complying with the provisions ot the canciliation agreement between Borthwicks and the respondent Union dated 11 September 1980 or the understanding referred to above between Borthwicks and the Union: Ca) by directing or procuring the employees of Borthwicks at its abattoirs at Portland ta refuse or fail to unload stock which 1s brought onto _ Borthwicks' abattoir at Portland by a carrier or in a truck who or which 1s subject to a Union ban against the carriage or delivery by him or it to the abattoir of livestock or to retuse or fail to kill or otherwise deal with such stock i1n_ the ordinary course of the conduct of the abattoir or from being directly or indirectly knowingly concerned 1n or party to any such refusal or failure; tb) by engaging or being concerned in any way in conduct by way ot implementing, promoting ar entorcing the provisions ot 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. I give judgment accordingly for the applicants with costs against the respondent Union, Arthur Bird, John Kenneth Beunt, Walter F. Curran, Bert Hutchins, Jack ) Toole and the respondent Borthwicks excluding costs referrable exclusively fto the ussues 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 rererrable 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. Further [I qrant to all parties liberty to apply with reference to the content of any injunction which may be made on the findings herein and generally. , ' LT certify that this and the preceding sixty (60) pages are a true copy of the Reasons for Judgment herein or the Honourable Mr. Tustice Smithers. Vrerorrke Associate Dated: 28 (6(€G