Trade Practices - secondary boycott - application for interlocutory injunction - applicant contracted to carry cut work on building project - alleged ban by first and second respondents on installation of equipment by contractors engaged by applicant - whether in contravention of s.45D of Trade Practices Act - summary of relevant principles - whether serious question to be tried - alleged detriment to applicant if ban allowed to continue - balance of convenience - relevant conduct the subject of a notification to Conciliation and Arbitration Commission - whether a relevant factor in the exercise by the Court of its discretion to grant the relief sought. Trade Practices Act 1974 ss. 45D, 80, 80AA FLOWER DAVIES WEMCO PTY LTD and THE AUSTRALIAN BUILDERS LAROURERS' FEDERATED UNION OF WORKERS WA BRANCH v THE PLUMBERS AND GASFITTERS EMPLOYEES UNION OF AUSTRALIA and THE FEDERATED ENGINE DRIVERS' AND FIREMEN'S UNION No. WA G118 of 1986 FRENCH ¢. , PERTH ~ 3 DECEMBER 1986 OP AUSTPALIA WESTERN AUS'TRALIA OISTRICT REGISTRY GENERAL DIVISTON BETWEEN : PLOWER DAVIES WEMCO PTY LTD Applicant and THE AUSTRALIAN BUILDERS LABOURERS' FEDERATED UNION OF WORKERS WA BRANCH First Respondent and THE PLUMBERS AND GASFITTERS EMPLOYEES UNION OF AUSTRALIA Second Respondent and THE FEDERATED ENGINE DRIVERS' AND FIREMEN'S UNION Third Respondent MINUTE OF PROPOSED ORDER ? Judge Making Order : FRENCH J. Date of Order : 3rd December 1986 Where Made : Perth THE COURT ORDERS THAT upon the Applicant having undertaken to pay to any party adversely affected by the interlocutory injunction such compensation (if any) as the Court thinks just in such manner as the Court directs: NOTE: - oot - i? 4 - . 1 ' - . me ut - aw OL Tk Hora . i ~ hee Zi t Puribop op@e. shir et rould fucert ce vir, the SF Re Fad wm spondent and Second Respondent and each of them be restrained by themselves their servants and agents from imposing waintainzng giving effect to or enforcing any ban on the provision by any person of goods or services to the Applicant at the oremises of the Australian Institute of Management on the corner of Underwood and Birkdale Streets in Floreat Park where any such ban has the purpose and would have or be likely to have the effect of preventing or hindering the acquisition of services by the Applicant from any other person being the lifting of an air handling unit and condensing unit for installation on the roof of the said premises. That liberty be reserved to any Respondent to apply on such notice as a Judge will allow to discharge or vary Order 1. That the costs of the application be reserved. Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION . CORAM: FRENCH J. No. WAG 118 of 1986 wwe eww BETWEEN: FLOWER DAVIES WEMCO PTY LID Applicant and THE AUSTRALIAN BUILDERS LABOURERS' FEDERATED UNION OF WORKERS WA BRANCH First Respondent and THE PLUMBERS AND GASFITTERS EMPLOYEES UNION OF AUSTRALIA Second Respondent and THE FEDERATED ENGINE DRIVERS' AND FIREMEN'S UNION Third Respondent 3rd December 1986 The Applicant REASONS FOR JUDGMENT moves for an interlocutory injunction restraining the First and Second Respondents from engaging in conduct said to constitute a contravention of s.45D of the Trade tw Practices Act 1974. The Applicant which 18 a company incorporated in Western Australia 15 engaged in the business of mechanical services contracting and in particular the design, construction and installation of air conditioning, heating and refrigeration systems. The contravention of s. 45D is said to arise from a ban imposed by the Second Respondent and supported by the First Respondent preventing the Applicant from acquiring the services of contractors to lift an air handling unit and condensing unit for installation on the roof of premises of the Australian Institute of Management in Floreat Park. The originating application is brought under s. 80 of the Trade Practices Act which empowers the grant of final injunctive relief as follows:- "80(1) Subject to subsections (lA)and (1B), where, on the application of the Minister, the Commission or any other person, the Court is satisfied that a person has engaged, or is proposing to engage, in conduct that constitutes or would constitute - (a) a contravention of a provision of Part IV or V the Court may grant an injunction in such terms as the Court determines to be appropriate." Sub-section 80(2) of the Act authorises the grant of interim injunctions as follows:- "Where in the opinion of the Court it is desirable to do so, the Court may grant an interim injunction pending determination of an application under sub-section (1)." The motion for interlocutory relief was initially brought on before the Court ex parte late on the afternoon of 27 November. The Applicant sought to justify the hearing of its motion without notice to the Respondents, by asserting its concern that the equipment affected by the ban was in danger of being damaged or destroyed should the Respondents have notice of the proceedings. *'\No evidence beyond the Applicant's belief was put before the Court; to indicate that there was any risk of such an "occurrence: 'Further, the Applicant had engaged a security guard to protect the equipment while its own employees were not on site. s TIn the cirumstances I declined to deal with the motion ex parte. Subsequently the matter was relisted for 2.15 pm on 28 November when Counsel appeared for the First and Second Respondents. The Applicant sought leave to discontinue against the Third Respondent and leave was granted although it would seem in the light of Federal Court Rules 0.22 r.2 that it was unnecessary. The Applicant also sought leave to abridge the time limited under 0.4 r.12 for service of an application and statement of claim so that the motion for interlocutory relief, incorporated in the application under o. 4 r.9 could be dealt with then. In the event and in order to give the Respondents adequate opportunity to instruct their Counsel and file answering affidavits, I directed that time be abridged to enable the motion for interlocutory relief to be dealt with at 2.15 pm on Monday, 1 December. The matter came on for hearing in accordance with that direction with Mr T.E. O'Connor appearing for the Applicant and Mr D. Chantler for the Respondents. Affidavits had, by then, been filed by the Respondents. According to the affidavit of Claude Faye, a director of the Applicant, the Applicant's business involves the design and construction of air conditioning, refrigeration and heating water systems. The pipe work that is necessary in the construction of such systems is described as "closed system pipe work". It is not of the type used in domestic plumbing. The Respondents are described in the pleadings as trade unions. The First Respondent is said to be registered under the Industrial Relations Act 1979 of the State of Western Australia and the Second Respondent registered under the Conciliation and Arbitration Act of the Commonwealth of Australia. While no formal proof was tendered of this fact, counsel for the Respondents advised the Court that it was not disputed. The Applicant's employees are all members of the Australian Metal Workers' and Shipwrights' Union ("The AMWU"). The Applicant is of the view that members of the AMNU are entitled to perform closed system pipe work under their award which is a State Award. On or about 14 July 1986 the Applicant entered into a contract with Interstruct Pty Ltd ("Interstruct"), Building and Civil Engineering Contractors to carry out certain work in connection with extensions to the premises of the Australian Institute of Management at the corner of Underwood Avenue and Birkdale Streets in Floreat Park. ("The AIM site") The Description of Works as set out ina e subcontract purchase order exhibited to Faye's affidavit was:- "To design and construct the mechanical services component of this project all in accordance with relevant SAA Codes and by-laws. All work is to meet Architectural layouts and the client's requirements." The fixed lump sum value of the work exclusive of sales tax was shown in the subcontract purchase order as 4247,930. Incorporated into the terms of the subcontract purchase order was a set of "Subcontract Agreement Conditions". Although neither the subcontract purchase order nor the Subcontract Agreement Conditions have been executed by the Applicant, they are said by Faye to contain the terms and conditions which govern the contractual relationship between Interstruct and the Applicant. The Applicant commenced work under the contract at the beginning of September 1986. According to an affidavit sworn by Mr John Fowler, the Applicant's contract manager, he was told by Interstruct's site manager, Mr Tony Wheeler, on the day after the Applicant commenced work at the AIM site that a peson by the name of Phil Mitchell, an organiser employed by the Second Respondent, had approached him and informed him that the Applicant would not be allowed to work on the site and that Interstruct would have "difficulties" if the Applicant were allowed to do so. Fowler said that he explained to Wheeler that' the Applicant had been approached in a similar manner by Mitchell in relation to a contract with Interstruct at Murray Street in Perth on 13 May 1986. He told Wheeler that the Applicant had ignored Mitchell's approach and that he, Wheeler, should not worry too much about 1t. Mitchell denied Fowler's allegations about the approach to Wheeler. He did say however that he had told Fowler in May 1986 that the Second Respondent would place a ban on the lifting of refrigeration units on to the roof of a site at 44] Murray Street, Perth in respect of which the Applicant was carrying out work for Interstruct. On Thursday, 20 November 1986 the Applicant delivered an air handler unit and condenser to the AIM site. The two pieces of equipment are said to weigh between 11/2 and 2 tonnes each and are worth $18,000 and $34,000 respectively. They were to he installed on the roof of the building being constructed. In order to do that it was necessary to lift each of them on to the roof by means of a crane. At the time the Applicant did not have its own crane on the AIM site. However through Elmars Jaunzem, its site supervisor, the Applicant made arrangements with a structural steel erector working on the AIM site to arrange for control of a crane to make the lift on Thursday, 20 November 1986. The crane crew according to Fowler, comprised a crane driver and a person who guides the crane driver and who is known ipa} as a@ douger we douman. oun ol November 1l2dé5 Jaunzem told Fowler Chat the doqaer had instructed the crane driver not to make the lift as there was a ban by the Flumbers Union relatina to the two particular pieces of equipment. Jaunzem told Fowler that the dogger was amember of the First Respondent and was its shop steward on site. Fowler said he went to the site and asked Wheeler why the dogger had stopped the lift. The dogger came up and told Fowler that he was acting under the instructions of the First Respondent. He told Fowler that the Second Respondent's representative had been to the site and advised him that there was a ban in force. On Tuesday, 25 November 1986 the Applicant once more attempted to lift the equipment. To do this it had hired a crane together with the services of a crane driver and two doggers from an independent subcontractor, Kewross Constructions. The crane driver and two doggers came to the site at 8.20 am. The crane driver apparently belonged to the Federated Engine Drivers' and Firemen's Union ("FEDFU") and the two doggers were both members of the First Respondent. The crane arrived at 8.40am. At 9.00 am the crane started to set up. At 9.45 am Mitchell told the crane driver and the doagers that the Second Respondent had banned the equipment and said that the Parst Respondent and the FEDFU supported the ban. Mitchell agrees that he told the crane driver and doggers of the ban. He denies having told them that it was supported by the First Respondent and the FEDFU. The evidence stronaly supports the view however that the Second Respondent had the support of the First Respondent in imposing the ban. Kevin Noel Reynolds the secretary of the First Respondent, in an affidavit sworn 1 December 1986 said that a female dogger, whom he described as a "dogperson", a member of the First Respondent, had rung him and asked if she could lift the units. She told him that she thought there was a ban on doing that work which had been imposed by the Second Respondent. He told her that the Second Respondent had a ban on the work and had asked the First Respondent to respect it. Reynolds directed the inquirer to respect the ban and not to lift the airconditioning units whilst it was still on. The date of the conversation is not stated but appears from the context to have been on or shortly prior to 25 November. After Mitchell came on site and told the crane driver and doggers of the ban, Fowler asked him to leave, saying that he had no right to countermand the Applicant's lawful directions to its subcontractors. Mitchell refused saying he was there as of right. Fowler then directed the crane driver and the doggers to make the lift but thev declined to do so. The crane driver was an 10. employee of a firm called United Transport which had been engaged by Kewross to do the lift. After contacting his employer the crane driver was instructed by him to pack up and leave the site. At 11.45 am the crane left the site. Mitchell's position was that the pipe work being carried out on the AIM site and earlier at the Murray Street site was work which had traditionally been done for the Applicant and for other contractors in the building and construction industry by plumbers who were members of the Second Respondent. He contended that the work was covered by a Federal Industrial Award regulating the employment of members of the Second Respondent. While he agreed that such work would also come under the relevant State Award relating to members of the AMNU, he argued that the Federal Award would take precedence as a matter of law. Mitchell said that he told Fowler that rates payable to the AMWU were much lower than rates payable under the Federal Award relating to plumbers. Members of the Second Respondent and their employers were therefore said to be at a competitive disadvantage. ll. Fowler conceded that the award rates payable to plumbers exceed those payable under the AMWU award. However, he said that the Applicant pays a number of its employees above award rates as well as bonuses which offset the lower rates payable to them as members of the AMWU. The legal and other merits of this debate do not presently concern the Court. The evidence however indicates broadly the nature of the dispute underlying the ban imposed by the Second Respondent. According to Fowler Mitchell also told him on 25th November that the Second Respondent would take similar action against the Applicant at future projects in which the Applicant was involved. Mitchell's version of this conversation is that he told Fowler he was seeking a commitment from the Applicant that at future jobs it would employ plumbers who were members of the Second Respondent. On the afternoon of 25 November Fowler said that he attempted to communicate with Kevin Reynolds but did not succeed as he was in the Eastern States. He then spoke to Peter Morrison, the Assistant Secretary of the First Respondent who, he said, advised him that the First Respondent had spoken to a representative of the Second Respondent the previous day and had 12. advised the Second Respondent that 1t would support any bans placed by any other Union. Morrison told Fowler that the First and Second Respondents would be meeting together on the morning of Wednesday, 26 November 1986 but that he would not contact Fowler as to the outcome of that meeting. According to Morrison he had heard nothing about the dispute with the Applicant on the AIM site as he had himself been out of the State the previous week. He denies that he advised Fowler that the First and Second Respondents were meeting. What he did tell Fowler was that he would look into the matter. In fact he did not follow it up as he was absent from work the next two days because of ill health. Under cl.9 of the subcontract agreement there is a provision for liquidated damages in the following terms:- "In the event that the subcontractor causes delay to the project due to any act, fault or omission on his behalf then the subcontractor shall allow to the contractor liquidated damages at the rate specified in the Head Contract or as otherwise agreed on the Subcontract Agreement for the period of delay caused by any such act, fault or omission by the subcontractor. Such liquidated damages may only be levied against the subcontractor if deducted from the contractor by the client." The subcontract purchase order specifies liquidated damages at the rate of $800.00 per day. 13. Faye in his affidavit said that by reason of the events referred to in the affidavit of Fowler. the Applicant may be liable to liquidated damages of $800.00 per day for any delays caused by the activities of the Respondents. Whether or not that view of the potential liability of the Applicant for delay arising from the present circumstances is correct may be debatable. Indeed it may be that the generality of cl.9 is mitigated by the special provisions of cl.25 which provide:- "25(a) In the event that the works are delayed due to strikes, work bans or other union stoppages directly attributable to the subcontractor or his agents or employees the subcontractor shall be responsible to pay all costs incurred by the contractor by reason of such stoppage; (b) The contractor will not be held responsible for any costs incurred by the subcontractor that may arise from or are in any way associated with any industrial and/or safety stoppages." Faye also contended in his affidavit that by reason of the events that had happened the Applicant would suffer a diminution of its reputation in the building industry and possibly face difficulties in securing future subcontracts, thus suffering substantial damage. The Applicant, he said, was not entitled to claim the cost of the equipment until it had been installed. The delay in 14, lifting 1t to the raof cf the buileing was also incurrirg additional expense for the Applicant in interest charges. However the interest was not quantified by evidence. Mr O'Connor suggested that total annual interest could be of the order of $7,500. This assumed an interest rate of 15% and a total cost for the two units of $50,000. A point was also made of the power of the head contractor under cl.15 of the subcontract agreement conditions which provides:- "15. The contractor reserves the right to determine this Contract at any time. In this event the subcontractor shall only be entitled to be paid for goods and or works performed at the date of such determination. The subcontractor shall not be entitled to any damages or other compensation by reason of such determination." Continuing delay in the execution of the works could, according to the Applicant's counsel lead to the peremptory termination of the contract under this clause. No evidence was adduced to suggest that Interstruct had threatened to take any such course of action. However it was put as a matter of common sense that the head contractor could not tolerate indefinite delay in the completion of the project. a The Statement of Claim contends inter alia, that:- The First Respondent has in concert with its shop steward and with the Second Respondent engaged in conduct that prevented the supply of services by the subcontract steel erector and his crane operator to the Applicant. The Second Respondent has in concert with members of the First Respondent, engaged in conduct that prevented the supply of services to the Applicant by the crane operator (Kewross) contracted to the Applicant and the subcontract steel erector. The Statement of Claim goes onto allege that the conduct referred to was engaged in for the purpose and would have or would have been likely to have had the effect of substantial loss or damage to the business of the Applicant. interlocutory relief sought is in the following terms as set in a Minute handed up by counsel for the Applicant:- The Respondents and each of them by their servants, agents and/or officers be restrained and an injunction is hereby granted restraining them from imposing, giving effect to or enforcing any ban on the lifting and/or handling at the Australian Institute of Management site, Floreat Park, of the Applicant's equipment where any such ban has' the purpose and would have or be likely to have the effect of causing substantial loss or damage to the business of the Applicant. causing The out The conduct pleaded falls within the terms of sub-s. 45D(1) of the Trade Practices Act. In the relevant parts the provisions of that sub-section provide:- "45D(1) Subject to this section, a person shall not, concert with a second person, engage in in conduct that hinders or prevents the supply of goods or services by a third person to a fourth person (not being an of the first-mentioned person), or employer the acquisition of goods or services by a third person from a fourth person (not being an where - . (b) the fourth person is a corporation and the conduct is engaged in for the purpose, and would have or be likely to have the effect, of causing - (i) (ii) Sub-section (3) of substantial loss or damage to the business of the fourth person or of a body corporate that is related to that person; or a substantial lessening of competition in any market in which the fourth person or a body corporate that is related to that person supplies or acquires goods or services." the scope of the section in the following way:- s.45D excludes certain conduct from employer of the first-mentioned person), ¥ het trom, talon of ee f eed ee te be x De ; "(3) A person shall not be taken to contravene, or to be involved in a contravention of, sub-section (1) (1A) by engaging in conduct where - (a) the dominant purpose for which the conduct is engaged in is substantially related to - or 17. (1) the remuneration, conditions of employment, hours of work or working conditions of that person or of another person employed by an employer of that person; or (ii) an employer of that person having terminated, or taken action to terminate, the employment of that person or of another person employed by that employer; or (b) in the case of conduct engaged in by the following persons 1n concert with each other (and not in concert with any other person), that is to say- (i) an organisation or organisations of employees, or an officer or officers of such an organisation, or both such an organisation or organisations and such an officer or officers and (ii) an employee, or 2 or more employees who are employed by the one employer, the dominant purpose for which the conduct 15 engaged in is substantially related to - (iii)the remuneration, conditions of employment, hours of work or working conditions of the employee, or of any of the employees, referred to in subparagraph (ii); or (iv) the employer of the employee, or of the employees, referred to in subparagraph (ii) having terminated, or taken action to terminate, the employment of any of his employees." It is important upon a motion for interlocutory relief of this kind to bear in mind that the Court does not decide finally any issue in Lhe cause. Views cxupressed are for the purpose only of deciding this motion. At the final hearing the is. admissibility of evidence 1s re tslared ber different rules and the avidence before the Court may be different - Co-Operative Bulk Handling Ltd v Waterside Workers' Federation of Australia (1983) 51 ALR 79 at 87 per Lockhart J., Barneys Blu-Crete Pty Ltd v Australian Workers' Union (1979) 43 FLR 463 at 465-466 per Northrop J. Before interlocutory relief can be granted the Applicant must satisfy the Court that there is a serious question to be tried - Epitoma Pty Ltd v Australasian Meat Industry Employees' Union (No. 2) (1984) 54 ALR 730 at 734 in the judgment of the Full Court. See also Australian Coarse Grain Pool Pty Ltd v Barley Marketing Board of Queensland (1982) 57 ALJR 425 (Gibbs CJ), Tableland Peanuts Pty Ltd v Peanut Marketing Board (1984) 58 ALJR 283 at 284 (Brennan J.), State of Queensiand v Australian Telecommunications Commission (1985) 59 ALR 243 at 244 (Gibbs CJ) and Castlemaine Tooheys Limited v State of South Australia (High Court unreported decision of Mason ACJ delivered 3 October 1986). In the case of an application under s. 45D this requires some evidence going to each of the elements making up a cause of action under the section - Springdale Comfort Pty Ltd Vv Electrical Trades Union of Workers (WA Branch) Perth [19861 ATPR 40-694 at 47,623 per Toohey J. Those elements for present purposes are:- l. A person engages in conduct in concert witha second person. 2. The conduct hinders or prevents the supply of goods or services by a third person toa corporation. 3. The conduct 1s engaged in for the purpose of causing substantial loss or damage to the business of the corporation. 4. The conduct has or is likely to have the effect of causing substantial loss or damage to the business of the corporation - Tillmanns Butcheries Pty Ltd v Australasian Meat Industry Employees' Union (1979) 27 ALR 367 at 370 - Bowen CJ, Evatt J. concurring. Each of the elements must be established against each Respondent before an injunction will be ordered against it. For present purposes Mitchell's admitted approach to the crane driver and doqgers on 25 November 1986, when he told them ag. " that the Second Respondert had "banned the equipment" constitutes relevant conduct on the part of the Second Respondent. The question then arises whether the conduct was as pleaded, in concert with members of the First Respondent. Engaging in conduct "in concert" as the term is used in s.45D involves "knowing conduct, the result of communication between the parties and not simply simultaneous actions occurring spontaneously" - Tillmanns Butcheries v Australasian Meat Industry Employees' Union (supra) at 373 per Bowen CJ. It has also been said to involve contemporaneity and a community of purpose which requires a consensual element - Australasian Meat Industry Employees' Union v Mudginberri Station Pty Ltd (1985) 61 ALR 417 at 424 per Keely and Pincus JJ, Epitoma Pty Ltd v Australasian Meat Industry Employees' Union (No. 2) (supra) at 738. The element of contemporaneity mentioned by Keely and Pincus Jd was not discussed further in their Honours' judgment. Presumably it does not require that the acts constituting the relevant conduct coincide precisely in time. No doubt their temporal relationship must be sufficiently close to be consistent with the notion of "concert". 21. Ihe necessary cancert with members of the First Respondent may be implied in this case from Reynolds' evidence that the Second Respondent had asked the First Respondent to respect its ban on the work, from his request to his inquirer to respect that ban and from the conduct of the First Respondent's members in giving effect to the ban. Reynolds' conduct 1s also capable of being conduct of the First Respondent in concert with the Second Respondent if the First Respondent is regarded as the first person referred to in s.45D. The conduct in each case must hinder or prevent the supply of goods or services by a third person to a corporation. In this case there is evidence that the contractor hired to provide the services of a crane to the Applicant has been prevented from doing so by the refusal of its employees to operate the crane and the refusal of the doggers to assist in the lift. That refusal can be said to arise directly from the conduct of each of the Respondents which has been identified above. Where, as in the present case, reliance is placed upon sub-s. 45D(1)(b) the prospective beneficiary of the goods or services to be supplied must be a corporation. | rm iF = oer: SEEPS RR atin ae peiteten: Vie FR 8 ar ade a Se a et Se me Hee ts NI In this case the reference to a corporation means a trading corporation formed within the limits of Australia or a financial corporation so formed (Trade Practices Act sub-s.4(1)). On any test there 1s evidence that the Applicant answers the description of a trading corporation. The conduct of the Respondents must be engaged in for the purpose of causing substantial loss or damage to the business of the corporation, this not being a case in which any purpose related to substantial lessening of competition in any market is alleged. The purpose referred to in sub-s.45D(1)(b) need not be the sole or even the dominant purpose for which the impugned conduct 1s undertaken. This appears from sub-s.45D(2) as applied in Utah Development Co. v Seamen's Union of Australia (1977) 17 ALR 15 at 22-23 per Keely J., Transport Workers Union of Australia v Leon Laidely Pty Ltd (1980) 28 ALR 589 at 594 per Bowen CJ., Industrial Enterprises Pty Ltd v Federated Storemen and Packers Union of Australia (19791 ATPR 40-100 at 17988 per Lockhart J., Wribass Pty Ltd v Swallow and Australasian Meat Industry Employees' Union (1979) 38 FLR 92 at 102 per Smithers J., Tillmanns Butcheries Pty Ltd v Australasian Meat Industry Employees' Union (supra) at 374 per Bowen CJ and 384 per Deane J. The purpose which attracts the application ot sub-s.45D(1)(b; has been described as the "operative subjective purpose of those engaging in the relevant conduct in concert". It 1s to be identified "by reference to the real reason or reasons for, or the real purpose or purposes of, the conduct and to what was 1n truth the obiect in the minds of the relevant persons when they engaged in the conduct in concert". Tillmanns Butcheries Pty Ltd v Australasian Meat Industry Employees' Union (supra) at 382-383 per Deane J., Leon Laidely Pty Ltd v Transport Workers Union of Australia (1980) 28 ALR 129 at 141 per Lockhart J., Chevron Transport Corporation v Seamen's Union of Australia (1983) 49 ALR 180 at 184 per Beaumont J. It has been said that the relevant purpose under sub-s.45D(1)(b) may not be the ultimate purpose for which the participants acted in concert - Wribass Pty Ltd v Swallow and Australasian Meat Industry Employees' Union (supra) at 102-103 per Smithers J., Barneys Blu-Crete Pty Ltd v Australian Workers' Union (supra) at 473 per Northrop J., Mudginberri Station Pty Ltd v Australasian Meat Industry Employees' Union (1985) 61 ALR 280 at 283 per Morlindg J. In Epitoma Pty Ltd v Australasian Meat industry Employees' Union (No. 1) (1984) 54 ALR 713 at 726, Gray J., onan application for the grant of an interlocutory injunction, felt compelled to differ from the reasoning of Smithers J. in Wribass v swalluw (supra: own Ehe basis chat his Honour's approach 'vould render sub-s. 45D(3) mugatory in most if not all cases. When that case went on appeal to the Full Court in Epitoma Pty Ltd v Australasian Meat Industry Employees' Union (No.2) (supra) the Court comprising Sheppard, Morling and Beaumont JJ declined to express any view in an interlocutory judgment as to whether the approach taken by Smithers J. should be preferred to that of the trial judge. They nevertheless were prepared to say that on this aspect there was a serious question to be tried. That proposition is enhanced by the support given to the approach adopted by Smithers J. in the two later cases cited. In this case the evidence will support an inference that the ultimate purpose of the Respondents was to ensure that the Applicant would in the future use member of the Second Respondent to carry out closed system pipe work associated with the installation of air conditioning and refrigeration units. The evidence is also clearly capable of supporting the inference that the immediate operative subjective purpose of the conduct of the Respondents was to interrupt the carrying out by the Applicant of the work 1t was obliged to do under its contract with Interstruct. eae te Wine Ue FTy Re SOIT ila RR INT) nee mie Se mee TM Ty Berore tne Applicant can establish a contravention of s. 45D 1t has to show that a purpose of the conduct 1s to cause substantial loss or damage to its business. The term "substantial" was discussed by the Full Court in Tillmanns Butcheries v Australasian Meat Industry Employees' Union (supra) at 374 where Bowen CJ.. with whom Evatt J. agreed said:- "The word 'substantial' would certainly seem to require loss or damage that is more than trivial or minimal. According to one meaning of the word the loss or damage would have to be considerable (see Palser v Grinling £19483 1 All ER; AC 291 at 316-7). However, the word is quantitatively imprecise; it cannot be said that it requires any specific level of loss or damage. No doubt in the context in which it appears the word imports a notion of relativity, that is to say, one needs to know something of the circumstances of the business affected before one can arrive at a conclusion whether the loss or damage in question should be regarded as substantial in relation to that business." Deane J. at 382 said of the term:- "In the context of s. 45D(1) of the Act, the word 'substantial' is used in a relative sense in that, regardless of whether it means large or weighty on the one hand or real or of substance as distinct from ephemeral or nominal on the other, it would be necessary to know something of the nature and scope of the relevant business before one could say that particular actual or potential loss or damage was substantial. As at present advised, I incline to the view that the phrase, substantial loss or damage, in s.45D(1) includes loss or damage that is, in the circumstances, real or of substance and not insubstantial or nominal. It is, however, unnecessary that I form or express any concluded view in that regard, since the ultimate conclusion which I have reached is the same regardless of which of the alternative meanings to which reference has been made is given to the word 'substantial' in s. 45D(1)." The evidence of loss >t aamave that could Flow trom fa giving effect to the Respondents' purpose was not of the dramatic character to be found in some other cases arising under s.45D. But as Northrop J. said in Barneys Blu-Crete Pty Ltd v Australian Workers' Union (supra) at 473:- "The phrase loss or damage ins. 45D(l)(a) is not directed to the question of quantum or less profit or greater loss over a period of time. The phrase is directed to a factual situation where the purpose and effect or likely effect 1s the cause of substantial loss or damage to the business." Taking what might loosely be described as this qualitative approach, there is evidence in the present case to support the inference that the Applicant would be prevented by the continuance of the Respondents' conduct from completing a contract which it entered into in the ordinary course of its business. That interruption to its activities may, on the evidence, have consequences of a financial nature and affect its ability to obtain other work. It is reasonably open on the evidence that such consequences are embodied in the Respondents' purpose and cannot be dismissed as not "substantial" within the meaning of the section. The purpose and likely effects of the conduct are closely related in this case. OT Ee ne ene eer ee Swe SITS Se tare rt one The probability contemplated by the word "likely" appearing 1n s.45D has been said by Deane J. in Tillmanns Butcheries Pty Ltd v Australasian Meat Industry Employees' Union (supra) at 382 to bea "real chance or possibility" that the conduct will if pursued cause substantial loss or damage. Bowen CJ at 375 observed that the word has various shades of meaning between "more probable than not" and "some possibility - more than a remote chance". However his Honour did not find it necessary in that case to finally construe the tern. As is observed in Taperell, Vermeesch and Harland - Trade Practices and Consumer Protection 3rd Edition at para. 5121, in practice it seems unlikely that the applicability of s.45D to particular boycotts will depend upon the choice of meaning of the term "likely". At whichever place in the spectrum of possible meanings the true construction of "likely" resides, there is sufficient evidence in this case to support an inference that the Respondents' conduct, if allowed to continue would be likely to have the effect of causing substantial loss or damage to the Applicant's business. Counsel for the Respondents raised by way of part answer to the Applicant's submissions, the possibility of a defence under sub-s.45D(3). In that connection it 15 to be observed that the conduct the subject of the interlocutory relief sought is that of the two Respondents, both of which are registered trade unions, one under State law the other under a law of the Commonwealth. The substantive application brings in the First Respondent's shop steward and members of the First Respondent. None of these persons are employees of the Applicant. All the Applicant's employees, on the evidence belong to another body the AMWU. Plainly paragraph (a) of sub-s.45D(3) cannot apply to the Respondents as it relates only to the conduct of employees. Nor on the face of it is paragraph (b) relevant. Insofar as it relates to the conduct of organisations of employees, it applies to their conduct in concert with employees of an employer, where the dominant purpose for which their conduct is engaged in is substantially related to the remuneration, conditions of employment, hours of work or working conditions of the employees in question. The threshold requirement is that the conduct be in concert with employees whose pay and conditions are at issue. The conduct here in issue does not involve the Applicant's employees. But it is their pay and conditions that is at issue according to the Respondents. wt tree we Bee ie Pie Pe pet Tt 1s not necessary for present purposes to express a concluded view as to the application of sub-s.45D(3). It is sufficient to ascertain that there 15 a serious question to be tried as to its application to this case and I so find. For these reasons therefore the Applicant has established that there is a serious question to be tried in respect of its allegation of a contravention of s.45D of the Trade Practices Act. On the balance of convenience the evidence is all one way. The Respondents have been unable to demonstrate any real prejudice flowing to them from the grant of an interlocutory injunction except in the broad sense that they may suffer a tactical loss in their dispute with the Applicant. The Applicant on the other hand, if the ban is allowed to continue in relation to the present contract, will suffer interruption to its ability to perform the contract, delay in receiving payment for the equipment to be installed and the possibility of peremptory termination. In the circumstances I am satisfied that the balance of convenience as between the parties lies in favour of the Applicant. This does not finally dispose of the matter for it was submitted that the Court ought, in its discretion, refuse to grant 30. the unterlocutory crélief on the basis that there had been a notification of a dispute covering the relevant conduct, to the Australian Conciliation and Arbitration Commission. Mr Mitchell in his affidavit, told the Court that he had notified "this current industrial dispute" to the Australian Conciliation and Arbitration Commission in the following terms:- "Notification of a Dispute Pursuant to Sec 25 of the Act. Please be advised of a dispute between Flower Davies Wemco and the Plumbers Union in relation to work being performed on an Interstruct site on the corner of Underwood and Burkedale (sic) Streets, Floreat. "AIM site" (Australian Institute of Management). We would seek the urgent assistance of the Commission to convene a compulsory conference and would suggest that senior management of Flower Davies Wemco be present." This notification was sent by telex on 28 November. Counsel for the Respondents advised that the Commission would sit to deal with the notification on Thursday, 4 December. Proceedings have also been instituted in the State Commission. It was submitted that the present dispute was an industrial dispute which should be resolved in the appropriate industrial tribunal. Reference was made to s.80AA of the Trade Practices Act. 31. The section empowers the court to stay an injunction already granted to restrain a contravention of 3.45D where there 1s a proceeding pending before the Commission in respect of a dispute relating to that conduct. The power is conditioned by the requirement that the Court must consider that the stay of the operation of the injunction would be likely to facilitate the settlement of the dispute by conciliation and that 1n all the circumstances it would be just to do so. The section does not apply to a case where the Court is considering whether or not to grant an injunction. However the legislative policy implicit in the section must be respected and is a relevant factor to be weighed in the exercise of the Court's discretion. In Industrial Enterprises Pty Ltd v Federated Storemen and Packers Union of Australia (supra) it was apparently contended for the Respondent that the notification of a dispute under s.25 of the Conciliation and Arbitration Act 1904 was a complete answer to an Applicant for injunctive relief under the Trade Practices Act arising out of substantially the same facts. At 17996 Lockhart J. said of this submission:- "I reject this notion completely. One does not know whether the facts before this Court which may come ne gs = Re wee i (e5) bo betore the Commissioner are the same or substantially the same, whether the issues nave anything ian common, whether the parties are cr will be the same, when the Commissioner will hear the matter, or what the result of the hearing will be? These are but some of the matters which must lead to the rejection of the contention of the respondents. But there are more substantial reasons than these, one being that the Act specifically prohibits conduct such as that mentioned in sec. 45D and provides its own remedies for dealing with it, including the power to grant injunctions under sec. 80." His Honour went on however to accept that there may be circumstances where it would be proper for the Court to exercise its discretion to await the result of proceedings under the Conciliation and Arbitration Act before hearing proceedings under the Trade Practices Act. As in the present case, Counsel had pressed upon his Honour the decision of Street J. (as he was then) in Harry M. Miller Attractions Pty Ltd v Actors and _ Announcers Equity Association of Australia (1970) 1 NSWR 614. In that case Street J. in a common law action against the defendant union refused to grant interlocutory relief to the plaintiffs as there was a4 dispute pending before the Conciliation and Arbitration Commission. Of that case Lockhart J. said at 1997:- "That case turned on its own special facts and has little bearing on the case before me, not only because the facts are very different but this is an application under sec. 80 for alleged contravention of sec. 45D of the Act." In Barneys Blu-Crete Pty Ltd v Australian Workers' Union (supra) at 475, Northrop J. considered a submission similar to that advanced before Lockhart J. in the Industrial Enterprises case. Reliance was again placed on the decision in Harry MM. Miller Attractions Pty Ltd v Actors and Announcers Equity Association of Australia (supra). Of the submission his Honour said:- I reject this contention for the reasons given by Lockhart J. in Industrial Enterprises Pty Ltd Vv Federated Storemen and Packers Union of Australia." These cases preceded the introduction of s.80AA to the Act but they do embody an acceptance that there could be circumstances in which the pendency of a proceeding in the Commission would justify withholding the grant of an injunction. This suggests that s.80AA has not introduced any novel factor into the range of matters proper for consideration in the exercise of the Court's discretion to grant interlocutory relief for a contravention of s.45D. _— This tends to be supported by the observations of Lockhart J. in Co-Operative Bulk Handling Ltd v Waterside Workers' Federation of Australia (supra) at 93:- "The present dispute before this court is part of a wider problem and I would hesitate to invoke the court's injunctive powers to prevent breaches of s.45D if the real dispute between the parties would be seriously exacerbated. Sometimes it may be appropriate for this court to refuse interlocutory relief on this basis..." SEF OT NEAT FTE TTT IT IE TEM OT TEESE . oer ran STEGER STG <4 if 34. In R. & E.P. Eccleston Pty Ltd v The Federated Storemen and Packers Union [£19851 ATPR 40-548, it was submitted that the Court should stay an application for interlocutory relief pending the determination of an industrial dispute in the Australian Conciliation and Arbitration Commission. The submission was reyected on the basis that the proceedings scheduled for hearing before the Commission would not duplicate the proceedings before the Federal Court. - In doing so Keely J. at 46,447 made reference to the distinction drawn by the High Court in Australian Federation of Air Pilots v_Flight Crew Officers Industrial Tribunal (1968) 119 CLR 16, between an industrial dispute and bans imposed by a union in an attempt to force the granting of a claim. On the evidence there is no sufficient basis for the belief that to withhold the grant of the injunction sought would facilitate the settlement of the dispute notified to the Conciliation and Arbitration Commission. Nor is there any real basis for saying that the grant of the injunction will exacerbate such dispute as exists. The injunction sought is of limited operation. The Court is entitled to expect that the Respondents as responsible organisations will comply with its order. Indeed there is no suggestion that they would not. ,@ ee 35. In the circumstances and subject to hearing Counsel as to the precise wording I am prepared to make orders in the following terms:- 1. That until the final determination of this proceeding or further order whichever should first occur, the First Respondent and Second Respondent and each of them be restrained by themselves their servants and agents from imposing maintaining giving effect to or enforcing any ban on the provision by any person of goods or services to the Applicant at the premises of the Australian Institute of Management on the corner of Underwood and Birkdale Streets in Floreat Park where any such ban has the purpose and would have or be likely to have the effect of preventing or hindering the acquisition of services by the Applicant from any other person being the jifting of an air handling unit and condensing unit for installation on the roof of the said premises. 2. That liberty be reserved to any Respondent to aply on such notice as a Judge will allow to discharge or vary Order 1. 3. That the costs of the application be reserved. I certify that this and the preceding 3% pages are a true copy of the reasons for judgment of his Honour Mr Justice French. MK bh —— Associate Dated : 3 Leanrgs, /78S, t [ 7 Pe os EFiuks