FEDERAL COURT OF AUSTRALIA Australian Competition & Consumer Commission v Automotive, Food, Metals, Engineering, Printing & Kindred Industries Union [2004] FCA 517 TRADE PRACTICES – remedies – orders sought by consent – declarations – whether appropriate – form of declaration – monetary penalties – whether amounts appropriate Trade Practices Act 1974 (Cth) ss 6A, 45D, 76(1A) Workplace Relations Act 1996 (Cth) Federal Court of Australia Act 1976 (Cth) s 21(1) Australian Competition & Consumer Commission v Francis [2004] FCA 487 applied Rural Press Ltd v Australian Competition and Consumer Commission [2003] HCA 75 (2003) 203 ALR 217 followed AUSTRALIAN COMPETITION AND CONSUMER COMMISSION v AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION, AUSTRALIAN WORKERS' UNION AND COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING AND ALLIED SERVICES UNION OF AUSTRALIA V 389 of 2003 GRAY J 30 APRIL 2004 MELBOURNE IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY V 389 of 2003 BETWEEN: AUSTRALIAN COMPETITION AND CONSUMER COMMISSION APPLICANT AND: AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION FIRST RESPONDENT AUSTRALIAN WORKERS' UNION SECOND RESPONDENT COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING AND ALLIED SERVICES UNION OF AUSTRALIA THIRD RESPONDENT JUDGE: GRAY J DATE OF ORDER: 30 APRIL 2004 WHERE MADE: MELBOURNE THE COURT DECLARES THAT: 1. The first respondent, by having in the period between 2 October 2002 and 23 October 2002, in concert with the second respondent and the third respondent: (a) induced and encouraged employees of Transfield Construction Pty Ltd ('Transfield') and employees of Transfield's contractors not to attend at their place of work and not to perform work at the Patricia Baleen gas processing facility located at Ewing Marsh Road, in Newmerella in Victoria (the 'Site'); and (b) hindered and prevented employees of Transfield and employees of Transfield's contractors and other persons delivering materials from entering the Site; being conduct that hindered or prevented Transfield from supplying building construction services to Basin Oil Pty Ltd ('Basin Oil') at the Site and that was engaged in for the purpose, and has had the effect, of causing substantial loss or damage to the business of Basin Oil, has engaged in conduct in contravention of s 45D of the Trade Practices Act 1974 (Cth). 2. The second respondent, by having in the period between 2 October 2002 and 23 October 2002, in concert with the first respondent and the third respondent: (a) induced and encouraged employees of Transfield and employees of Transfield's contractors not to attend at their place of work and not to perform work at the Site; and (b) hindered and prevented employees of Transfield and employees of Transfield's contractors and other persons delivering materials from entering the Site; being conduct that hindered or prevented Transfield from supplying building construction services to Basin Oil at the Site and that was engaged in for the purpose, and has had the effect, of causing substantial loss or damage to the business of Basin Oil, has engaged in conduct in contravention of s 45D of the Trade Practices Act 1974 (Cth). 3. The third respondent, by having in the period between 2 October 2002 and 23 October 2002, in concert with the first respondent and the second respondent: (a) induced and encouraged employees of Transfield and employees of Transfield's contractors not to attend at their place of work and not to perform work at the Site; and (b) hindered and prevented employees of Transfield and employees of Transfield's contractors and other persons delivering materials from entering the Site; being conduct that hindered or prevented Transfield from supplying building construction services to Basin Oil at the Site and that was engaged in for the purpose, and has had the effect, of causing substantial loss or damage to the business of Basin Oil, has engaged in conduct in contravention of s 45D of the Trade Practices Act 1974 (Cth). THE COURT ORDERS THAT: 1. The first respondent is restrained until 30 June 2008, whether by itself, its officers, officials, delegates, servants, members or agents or howsoever otherwise, from engaging in conduct in concert with the second respondent and/or the third respondent or their officers, officials, delegates, servants, members or agents: (a) that hinders or prevents a third person supplying goods or services to a fourth person at the Site or at any other site at which a land based gas processing plant is located or under construction in Victoria; and (b) that is engaged in for the purpose, and would have or be likely to have the effect, of causing substantial loss or damage to the business of the fourth person in contravention of s 45D of the Trade Practices Act 1974 (Cth). (For the avoidance of doubt this does not restrain the first respondent from engaging in any industrial action that is protected under the Workplace Relations Act 1996 (Cth)). 2. The first respondent is restrained until 30 June 2008, whether by itself, its officers, officials, delegates, servants, members or agents or howsoever otherwise from inducing or procuring or attempting to induce or procure any member of the first respondent to engage in conduct in concert with any officers, officials, delegates, servants, members or agents of the first, second or third respondent: (a) that hinders or prevents a third person supplying goods or services to a fourth person at the Site or at any other site at which a land based gas processing plant is located or under construction in Victoria; and (b) that is engaged in for the purpose, and would have or be likely to have the effect, of causing substantial loss or damage to the business of the fourth person in contravention of s 45D of the Trade Practices Act 1974 (Cth). (For the avoidance of doubt this does not restrain the first respondent from engaging in any industrial action that is protected under the Workplace Relations Act 1996 (Cth)). 3. The first respondent pay a pecuniary penalty to the Commonwealth of Australia in the sum of $100 000 by a payment of $50 000 on the first day of the month following the date of this order and a payment of $50 000 on the first day of the 12th month following the date of this order. 4. The first respondent is directed to: (a) implement within 12 weeks from the date of this order a trade practices compliance program in accordance with the Australian Standard AS 3806 designed to prevent the first respondent from engaging in conduct that may give rise to a contravention of Pt IV of the Trade Practices Act 1974 (Cth); (b) at the end of each 12 month period from the date of this order until the third anniversary of the date of this order, cause a person to review and report on the implementation of that program and the achievement of its objectives over the preceding 12 months; (c) cause the person to complete the review and provide a copy of his or her report to the respondent within one month of the end of each 12 month period from the date of this order; and (d) provide a copy of the person's report to the applicant within seven days of receiving a written request for it from the applicant. 5. The first respondent cause to be published at its own expense in the first respondent's journal 'AMWU News' an advertisement in the terms of Annexure 'A' hereof and further that such advertisement shall be: (a) of a size not less than 15 cm wide and 15 cm deep; (b) in text which is in type not less than 12 point; and (c) published in the next available issue of 'AMWU News' from the date of this order. 6. The second respondent is restrained until 30 June 2008, whether by itself, its officers, officials, delegates, servants, members or agents or howsoever otherwise, from engaging in conduct in concert with the first respondent and/or the third respondent or their officers, officials, delegates, servants, members or agents: (a) that hinders or prevents a third person supplying goods or services to a fourth person at the Site or at any other site at which a land based gas processing plant is located or under construction in Victoria; and (b) that is engaged in for the purpose, and would have or be likely to have the effect, of causing substantial loss or damage to the business of the fourth person in contravention of s 45D of the Trade Practices Act 1974 (Cth). (For the avoidance of doubt this does not restrain the second respondent from engaging in any industrial action that is protected under the Workplace Relations Act 1996 (Cth)). 7. The second respondent is restrained until 30 June 2008, whether by itself, its officers, officials, delegates, servants, members or agents or howsoever otherwise from inducing or procuring or attempting to induce or procure any member of the second respondent to engage in conduct with any officers, officials, delegates, servants and agents of the first, second or third respondent: (a) that hinders or prevents a third person supplying goods or services to a fourth person at the Site or at any other site at which a land based gas processing plant is located or under construction in Victoria; and (b) that is engaged in for the purpose, and would have or be likely to have the effect, of causing substantial loss or damage to the business of the fourth person in contravention of s 45D of the Trade Practices Act 1974 (Cth). (For the avoidance of doubt this does not restrain the second respondent from engaging in any industrial action that is protected under the Workplace Relations Act 1996 (Cth)). 8. The second respondent pay to the Commonwealth of Australia a pecuniary penalty in the sum of $100 000 by 24 monthly instalment payments payable on the first day of each month following the date of this order, the first instalment being in the sum of $8 000 followed by 23 instalments of $4 000 per month. 9. The second respondent is directed to: (a) implement within 12 weeks from the date of this order a trade practices compliance program in accordance with the Australian Standard AS 3806 designed to prevent the second respondent from engaging in conduct that may give rise to a contravention of Pt IV of the Trade Practices Act 1974 (Cth); (b) at the end of each 12 month period from the date of this order until the third anniversary of the date of this order, cause a person to review and report on the implementation of that program and the achievement of its objectives over the preceding 12 months; (c) cause the person to complete the review and provide a copy of his or her report to the respondent within one month of the end of each 12 month period from the date of this order; and (d) provide a copy of the person's report to the applicant within seven days of receiving a written request for it from the applicant. 10. The second respondent cause to be published at its own expense in the second respondent's journal 'The Australian Worker' an advertisement in the terms of Annexure 'A' hereof and further that such advertisement shall be: (a) of a size not less than 15 cm wide and 15 cm deep; (b) in text which is in type not less than 12 point; and (c) published in the next available issue of 'The Australian Worker' from the date of this order. 11. The third respondent is restrained until 30 June 2008, whether by itself, its officers, officials, delegates, servants, members or agents or howsoever otherwise, from engaging in conduct in concert with the first respondent and/or the second respondent or their officers, officials, delegates, servants, members or agents: (a) that hinders or prevents a third person supplying goods or services to a fourth person at the Site or at any other site at which a land based gas processing plant is located or under construction in Victoria; and (b) that is engaged in for the purpose, and would have or be likely to have the effect, of causing substantial loss or damage to the business of the fourth person in contravention of s 45D of the Trade Practices Act 1974 (Cth). (For the avoidance of doubt this does not restrain the third respondent from engaging in any industrial action that is protected under the Workplace Relations Act 1996 (Cth)). 12. The third respondent is restrained until 30 June 2008, whether by itself, its officers, officials, delegates, servants, members or agents or howsoever otherwise from inducing or procuring or attempting to induce or procure any member of the third respondent to engage in conduct in concert with any officers, officials, delegates, servants, members or agents of the first, second or third respondent: (a) that hinders or prevents a third person supplying goods or services to a fourth person at the Site or at any other site at which a land based gas processing plant is located or under construction in Victoria; and (b) that is engaged in for the purpose, and would have or be likely to have the effect, of causing substantial loss or damage to the business of the fourth person in contravention of s 45D of the Trade Practices Act 1974 (Cth). (For the avoidance of doubt this does not restrain the third respondent from engaging in any industrial action that is protected under the Workplace Relations Act 1996 (Cth)). 13. The third respondent pay a pecuniary penalty to the Commonwealth of Australia in the sum of $100 000. 14. The third respondent is directed to: (a) implement within 12 weeks from the date of this order a trade practices compliance program in accordance with the Australian Standard AS 3806 designed to prevent the third respondent from engaging in conduct that may give rise to a contravention of Pt IV of the Trade Practices Act 1974 (Cth); (b) at the end of each 12 month period from the date of this order until the third anniversary of the date of this order, cause a person to review and report on the implementation of that program and the achievement of its objectives over the preceding 12 months; (c) cause the person to complete the review and provide a copy of his or her report to the respondent within one month of the end of each 12 month period from the date of this order; and (d) provide a copy of the person's report to the applicant within seven days of receiving a written request for it from the applicant. 15. The third respondent cause to be published at its own expense in the respondent's journal 'ETU National' an advertisement in the terms of Annexure 'A' hereof and further that such advertisement shall be: (a) of a size not less than 15 cm wide and 15 cm deep; (b) in text which is in type not less than 12 point; and (c) published in the next available issue of 'ETU National' from the date of this order. ANNEXURE 'A' PUBLIC NOTICE On 30 April 2004 the Federal Court of Australia ordered that the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union ('AMWU'), the Australian Workers' Union ('AWU') and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia ('CEPU') each pay a penalty of $100 000 for breaching the secondary boycott provisions of the Trade Practices Act ('the Act'). The orders followed legal proceedings instituted by the Australian Competition and Consumer Commission ('ACCC') against the AMWU, the AWU and the CEPU alleging that they had breached section 45D of the Act by unlawfully hindering the construction of a gas plant near Orbost. It was alleged that between 2 October 2002 and 23 October 2002 the unions maintained a picket at the entrance to the site where the plant was being constructed which prevented construction workers and vehicles delivering materials from entering the site. It was alleged that the unions also induced and encouraged construction workers not to attend at their place of work at the site during the picket. The unions allegedly took this action because the company which had been engaged to operate the plant post construction had refused to negotiate certified agreements with the unions governing the terms and conditions of its employees. In a settlement reached with the ACCC and put to the Court, the AMWU, the AWU and the CEPU admitted that they had contravened the Act and consented to orders being made against them. The Court also granted injunctions against the AMWU, the AWU and the CEPU restraining them from engaging in similar conduct in the future. Declarations were also made by the Court that the unions had contravened the Act. The unions were also ordered to implement a trade practices compliance program and publish this notice. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY V 389 of 2003 BETWEEN: AUSTRALIAN COMPETITION AND CONSUMER COMMISSION APPLICANT AND: AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION FIRST RESPONDENT AUSTRALIAN WORKERS' UNION SECOND RESPONDENT COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING AND ALLIED SERVICES UNION OF AUSTRALIA THIRD RESPONDENT JUDGE: GRAY J DATE: 30 APRIL 2004 PLACE: MELBOURNE REASONS FOR JUDGMENT The nature of the proceeding 1 By its application, filed on 16 May 2003, the applicant sought relief by way of declarations, the imposition of pecuniary penalties, injunctions (including injunctions requiring the publication in the respondents' respective journals of advertisements concerning the orders), and orders directing the establishment of compliance programs, against the three respondent organisations. The applicant is the Australian Competition and Consumer Commission ('the Commission'), the regulatory body established by s 6A of the Trade Practices Act 1974 (Cth) ('the Trade Practices Act'). The relief is sought in respect of a picket, established between 2 and 23 October 2002 at premises in East Gippsland. 2 The parties have reached agreement to resolve the proceeding. On 20 May 2003, the respondents filed a defence, admitting every allegation in the statement of claim filed with the application. On 5 September 2003, the parties filed an agreed statement of facts and a joint submission. At the hearing on 11 September 2003, the parties consented to the Court making orders in the form in a minute of consent orders, handed up in Court. 3 Although the parties are prepared to consent to the orders, the making of the orders is still an exercise of the judicial power and the Court must be satisfied that the orders sought are within the power of the Court and it is appropriate to make them. Due allowance must be made for the fact that the parties have agreed in the result, and are thereby saving significant amounts of public money that would otherwise be expended in a trial. The agreed facts 4 The facts set out in the agreed statement of facts are as follows: 'Introduction 1 The Automotive, Food, Metal, Engineering, Printing and Kindred Industries Union ("AMWU"), the Australian Workers' Union ("AWU") and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia ("CEPU") are each organisations of employees representing, inter-alia, employees of Australian companies. Each is a body corporate registered under s 191 of the Workplace Relations Act 1996 (Cth) ("WRA"). 2 Steven Dodd ("Dodd") and Gregory Warren ("Warren") are employees of the AMWU and at all material times were organisers of the AMWU. 3 Terrence Lee ("Lee") is an employee of the AWU and at all material times was an organiser of the AWU. 4 Peter Mooney ("Mooney") is an employee of the CEPU and at all material times was an organiser of the CEPU. The Patricia Baleen Project 5 Basin Oil Pty Ltd ("Basin Oil"), a subsidiary of OMV Australia Pty Ltd, is the operator of, and also a co-venturer in the Patricia Baleen Project (the "project"). The project involves the development of gas reserves located in the Patricia and Baleen gas wells which lie about 25km offshore in Bass Strait adjacent to Orbost in Victoria's East Gippsland region. The co-venturers in the project are Basin Oil, OMV Timor Sea Ltd, Trinity Gas Resources Pty Ltd and Santos Ltd. 6 As part of the project a gas pipeline was constructed to enable the gas produced from the wells to be pumped to an offshore gas processing plant (the "plant") located in Ewing Marsh Road at Newmerella near Orbost (the "Site") where the gas will be processed so that it can be fed into the Eastern Gas Pipeline for further distribution. The Eastern Gas Pipeline is owned by Duke Energy Ltd and runs from Longford in Victoria to Sydney, New South Wales. The total cost of the project is about $120m. 7 As project operator, Basin Oil was contractually responsible for seeing to the construction, commissioning and operation of the plant. In or about February 2002, Basin Oil engaged Transfield Construction Pty Ltd ("Transfield") to design and construct the plant. Transfield commenced construction of the plant in April 2002. Transfield carried out some of the construction work itself using its own employees and in other respects engaged contractors. 8 Transfield's construction workforce at the Site included Transfield employees who were members of the AMWU and the AWU and contractors that had employees who were members of the CEPU. 9 In May 2002, Basin Oil, as project operator, engaged Upstream Petroleum Pty Ltd ("Upstream") to commission, operate and maintain the plant once construction was complete. 10 Between June and September 2002 Upstream engaged 8 employees to operate and maintain the plant. Upstream entered into Australian Workplace Agreements ("AWA") with each of the employees. 11 Between 23 August 2002 and 18 September 2002 the AMWU, the AWU and the CEPU served on Upstream notices initiating a bargaining period under s170MI of the WRA with a view to securing a Certified Agreement regulating the terms and conditions of employment for the employees who Upstream may employ to operate and maintain the plant. 12 On 27 September 2002 Upstream sent separate letters to the AMWU, the AWU and the CEPU advising them that it considered it unnecessary to negotiate a certified agreement given that its employees had already entered into AWAs. The Picket 13 On 2 October 2002 when the plant was still under construction, a picket was established at the main entrance to the Site. The picket was maintained until at least 23 October 2002. 14 Lee, Warren, Dodd and Mooney in concert with each other were involved in establishing the picket and maintaining it until at least 23 October 2002. 15 The picket was attended by Lee, Warren, Dodd and Mooney as well as some of the employees of Transfield and Transfield's contractors who were involved in the construction of the plant and other persons. 16 During the first four hours of the picket, vehicles blocked the entrance to the Site. Thereafter, the entrance to the site was not physically obstructed during the picket. 17 During the picket vehicles delivering materials for the construction of the plant that drove to the entrance to the Site were approached by a person on the picket line (a picketer). The picketer who approached the vehicle told the driver of the vehicle that a picket was taking place near the entrance to the Site relating to an industrial dispute. The picketer requested that the driver support the picket by not crossing the picket line and entering the Site. Lee, Warren, Dodd and Mooney encouraged the picketers to take such action and took such action themselves. The action by the picketers was intended to cause the drivers to decide not to enter the Site. 18 As a result of the actions referred to in paragraphs 16 and 17 above, persons on the picket line hindered and prevented vehicles delivering materials for the construction of the plant from entering the Site. 19 Whilst the picket was maintained the employees of Transfield and Transfield's contractors who were involved in the construction of the plant did not attend at their place of work because: (a) they elected to respect the picket; and/or (b) Lee, Warren, Dodd and Mooney encouraged them not to attend at their place of work and not to perform work at the Site. 20 By reason of the matters referred to in paragraphs 17 to 19 above, Transfield was hindered and prevented from supplying building construction services to Basin Oil at the Site. 21 Consequently, during the picket, construction of the plant at the Site ceased. 22 On 23 October 2002, the AMWU, the AWU and the CEPU gave undertakings to the Federal Court and, as a consequence, on 23 October 2002 Lee and Mooney, and on 24 October 2002 Warren and Dodd, were instructed by their respective employers not to attend or support the picket. 23 On 3 December 2002, the employees of Transfield and Transfield's contractors returned to work at the Site. 24 The picket was organised, and the employees of Transfield and Transfield's contractors were discouraged to attend at their place of work: (a) to protest against the use of non-local labour to operate the plant on its completion as proposed by Upstream; (b) to protest about Upstream's intention to use AWAs in respect of the employees who would operate the plant on its completion; (c) in order to pressure Transfield and Basin Oil to persuade Upstream to terminate the AWAs into which it had entered with its employees; and (d) to pressure Transfield and Basin Oil to persuade Upstream to negotiate certified agreements with the AMWU, the AWU and the CEPU governing the terms and conditions of those employees. 25 The conduct of Lee, Warren, Dodd and Mooney in organising and maintaining the picket, in encouraging employees of Transfield and Transfield's contractors not to attend at their place of work and not to perform work at the Site and in taking the action set out in paragraph 17 above, was engaged in for the purpose, and was likely to have the effect, of causing substantial loss and damage to the business of Basin Oil. 26 In organising and maintaining the picket, in encouraging employees of Transfield and Transfield's contractors not to attend at their place of work and in taking the action set out in paragraph 17 above, Lee, Warren, Dodd and Mooney were performing tasks that each of them as union organisers had apparent authority to perform on behalf of the respective unions who employed them. By reason of section 84(2) of the Trade Practices Act 1974, the AMWU is liable for the conduct of Warren and Dodd, the AWU is liable for the conduct of Lee and the CEPU is liable for the conduct of Mooney as set out in paragraphs 14 to 19 above. Orders made by AIRC 27 On 7 October 2002 Basin Oil filed an application with the Australian Industrial Relations Commission ("AIRC") for an order under s127 of the WRA to stop or prevent the industrial action taking place at the Site. On 8 October 2002 Transfield filed a similar application. 28 On 11 October 2002 the AIRC made separate orders in favour of Transfield and Basin Oil that the industrial action stop. The Transfield order came into effect at 7.00 am on 15 October 2002 and remained in force for a period of three weeks. That order was expressed to be binding on Transfield, the AMWU, the CEPU, the AWU, Warren, Dodd, Mooney and employees of Transfield and Transfield's contractors who were members of the unions and were employed at or in relation to the construction of the plant. The order was not expressed to be binding on Lee as the AIRC was not satisfied that Lee had notice of the application or the proposed terms of the order sought. The order stated, inter-alia, as follows: "3. INDUSTRIAL ACTION TO STOP 3.1 Each of the employees must immediately cease and refrain from engaging in industrial action as defined in clause 3.4 of this Order [and all such conduct] shall stop and must not occur. 3.2 Each of the employees must make themselves available for work and perform work as their employer may reasonably require. 3.3 The CEPU, AWU and AMWU (collectively 'the unions'), Warren, Dodd and Mooney (collectively 'the organisers') and the employees must, whether by themselves, their servants, their agents or otherwise howsoever, immediately cease and desist from any of the following conduct described in 3.4(b) with respect to the undertaking of Transfield at the site in relation to any of the following applicable AWA's and/or certified agreements: (i) Transfield Construction (AWU) Construction Certified Agreement 2002; (ii) Transfield Construction South East Region Construction Certified Agreement 2000/2003; (iii) Corke Instrument Engineering (Australia) Pty Ltd Enterprise Agreement 2000-2003; (iv) National Metal and Engineering On-site Construction Industry Award 1989; and (v) National Electrical, Electronic and Communications Contracting Industry Award 1998; and 3.4 For the purposes of this Order: (a) 'industrial action' means in respect of the members the refusal or failure to attend for work or to perform work in the manner in which it is customarily performed at the Site. (b) 'industrial action' also means in respect of each of the CEPU, AWU and AMWU, their officers, employees and delegates, the authorisation, direction, incitement, persuasion or encouragement of any of the members to engage in any of the industrial action defined in paragraph 3.4(a)" 29 The Basin Oil order came into effect at midnight on 11 October 2002 and remained in force for a period of three weeks. That order was expressed to be binding on Basin Oil, the CEPU, the AWU, the AMWU and delegates and officers of those unions and stated, inter-alia, as follows: "4. INDUSTRIAL ACTION TO STOP 4.1 Industrial action as defined in clause 4.3 of this Order shall stop and must not occur. 4.2 The CEPU, AWU and AMWU must forthwith take all reasonable steps available to them to ensure that the members are made aware of and comply with this Order, and in writing shall notify the Company and Basin Oil, through their respective solicitors, of the steps they have taken in this regard. 4.3 For the purposes of this Order: (a) 'industrial action' means in respect of the members the refusal or failure to attend for work or to perform work in the manner in which it is customarily performed at the Site. (b) 'industrial action' also means in respect of each of the CEPU, AWU and AMWU, their officers, employees and delegates, the authorisation, direction, incitement, persuasion or encouragement of any of the members to engage in any of the industrial action defined in paragraph 4.3(a)." 30 Appeals against the orders were lodged in the AIRC and a stay of their operation was refused on 22 October 2002. The appeals are pending. 31 Notwithstanding the orders made by the AIRC, the unions' members did not return to work and there was no cessation of the picket. Basin Oil's Loss and Damage 32 As a result of no construction work in respect of the plant taking place between 2 October 2002 and 23 October 2002, the co-venturers in the project suffered loss and damage. Under the co-venture agreement in respect of the project, Basin Oil suffered loss and damage in the sum of approximately $455 000 being 35% of the total loss and damage suffered by the co-venturers during the above period. The loss and damage suffered included: (a) holding costs incurred by Transfield from 2 October 2002 to 23 October 2002. These were costs that Transfield had to pay in relation to the construction of the plant irrespective of whether or not any construction work in respect of the plant was actually being performed. They included: (i) direct staff costs in the form of salaries, allowances and expenses for salaried staff and applicable on-costs (such as Workers' Compensation payments, pay-roll tax, superannuation etc); (ii) the rental of equipment and plant including craneage, generators, compressors and site-huts; and (iii) utilities and communication systems, such as electricity and telecommunications infrastructure. (b) costs incurred by Basin Oil from 2 October 2002 to 23 October 2002 in relation to the construction of the plant and managing the project irrespective of whether or not any construction work in respect of the plant was actually being performed. They included wages paid to personnel and payments to contractors for providing services in relation to the construction of the plant and managing the project. (c) costs incurred in insuring equipment at the Site from 2 October 2002 to 23 October 2002. (d) prolongation costs (the costs incurred as a result of the project running longer than expected) including those incurred by Transfield which arose generally out of having to reschedule sequential events on account of disruptions to the completion of tasks. (e) legal costs incurred by Basin Oil and Transfield. Basin Oil indemnified Transfield in respect of the costs incurred by Transfield referred to above as Basin Oil was obliged to do so under its contract with Transfield.' The orders sought by consent 5 The orders sought by consent were in the following form: '1 Against the first respondent 1.1 The first respondent, by having in the period between 2 October 2002 and 23 October 2002, in concert with the second respondent and the third respondent: (a) induced and encouraged employees of Transfield Construction Pty Ltd ("Transfield") and employees of Transfield's contractors not to attend at their place of work and not to perform work at the Patricia Baleen gas processing facility located at Ewing Marsh Road, in Newmerella in Victoria (the "Site"); and (b) hindered and prevented employees of Transfield and employees of Transfield's contractors and other persons delivering materials from entering the Site; being conduct that hindered or prevented Transfield from supplying building construction services to Basin Oil Pty Ltd ("Basin Oil") at the Site and that was engaged in for the purpose, and has had the effect, of causing substantial loss or damage to the business of Basin Oil, has engaged in conduct in contravention of section 45D of the Trade Practices Act 1974. 1.2 The first respondent is restrained until 30 June 2008, whether by itself, its officers, officials, delegates, servants, members or agents or howsoever otherwise, from engaging in conduct in concert with the second respondent and/or the third respondent or their officers, officials, delegates, servants, members or agents: (a) that hinders or prevents a third person supplying goods or services to a fourth person at the Site or at any other site at which a land based gas processing plant is located or under construction in Victoria; and (b) that is engaged in for the purpose, and would have or be likely to have the effect, of causing substantial loss or damage to the business of the fourth person, in contravention of section 45D of the Trade Practices Act 1974. (For the avoidance of doubt this does not restrain the first respondent from engaging in any industrial action that is protected under the Workplace Relations Act 1996). 1.3 The first respondent is restrained until 30 June 2008, whether by itself, its officers, officials, delegates, servants, members or agents or howsoever otherwise from inducing or procuring or attempting to induce or procure any member of the first respondent to engage in conduct in concert with any officers, officials, delegates, servants, members or agents of the first, second or third respondent: (a) that hinders or prevents a third person supplying goods or services to a fourth person at the Site or at any other site at which a land based gas processing plant is located or under construction in Victoria; and (b) that is engaged in for the purpose, and would have or be likely to have the effect, of causing substantial loss or damage to the business of the fourth person, in contravention of section 45D of the Trade Practices Act 1974. (For the avoidance of doubt this does not restrain the first respondent from engaging in any industrial action that is protected under the Workplace Relations Act 1996). 1.4 The first respondent pay a pecuniary penalty to the Commonwealth of Australia in the sum of $100 000.00 by a payment of $50,000 on the first day of the month following the date of this order and a payment of $50,000 on the first day of the twelfth month following the date of this order. 1.5 The first respondent is directed to: (a) implement within 12 weeks from the date of this Order a trade practices compliance program in accordance with the Australian Standard AS3806 designed to prevent the first respondent from engaging in conduct that may give rise to a contravention of Part IV of the Trade Practices Act 1974 ("the Program"); (b) at the end of each twelve month period from the date of this Order until the third anniversary of the date of this Order, cause a person ("the person") to review and report on the implementation of the Program and the achievement of its objectives over the preceding twelve months; (c) cause the person to complete the review and provide a copy of his report to the respondent within one month of the end of each twelve month period from the date of this Order; and (d) provide a copy of the person's report to the applicant within seven days of receiving a written request for it from the applicant. 1.6 The first respondent cause to be published at its own expense in the respondent's journal "AMWU News" an advertisement in the terms of Annexure "A" hereof and further that such advertisement shall be: (a) of a size not less than 15 cm wide and 15 cm deep; (b) in text which is in type not less than 12 point; and (c) published in the next available issue of "AMWU News" from the date of this order. 2 Against the second respondent 2.1 The second respondent, by having in the period between 2 October 2002 and 23 October 2002, in concert with the first respondent and the third respondent: (a) induced and encouraged employees of Transfield and employees of Transfield's contractors not to attend at their place of work and not to perform work at the Site; and (b) hindered and prevented employees of Transfield and employees of Transfield's contractors and other persons delivering materials from entering the Site; being conduct that hindered or prevented Transfield from supplying building construction services to Basin Oil at the Site and that was engaged in for the purpose, and has had the effect, of causing substantial loss or damage to the business of Basin Oil, has engaged in conduct in contravention of section 45D of the Trade Practices Act 1974. 2.2 The second respondent is restrained until 30 June 2008, whether by itself, its officers, officials, delegates, servants, members or agents or howsoever otherwise, from engaging in conduct in concert with the first respondent and/or the third respondent or their officers, officials, delegates, servants, members or agents: (a) that hinders or prevents a third person supplying goods or services to a fourth person at the Site or at any other site at which a land based gas processing plant is located or under construction in Victoria; and (b) that is engaged in for the purpose, and would have or be likely to have the effect, of causing substantial loss or damage to the business of the fourth person, in contravention of section 45D of the Trade Practices Act 1974. (For the avoidance of doubt this does not restrain the second respondent from engaging in any industrial action that is protected under the Workplace Relations Act 1996). 2.3 The second respondent is restrained until 30 June 2008, whether by itself, its officers, officials, delegates, servants, members or agents or howsoever otherwise from inducing or procuring or attempting to induce or procure any member of the second respondent to engage in conduct with any officers, officials, delegates, servants and agents of the first, second or third respondent: (a) that hinders or prevents a third person supplying goods or services to a fourth person at the Site or at any other site at which a land based gas processing plant is located or under construction in Victoria; and (b) that is engaged in for the purpose, and would have or be likely to have the effect, of causing substantial loss or damage to the business of the fourth person. in contravention of section 45D of the Trade Practices Act 1974. (For the avoidance of doubt this does not restrain the second respondent from engaging in any industrial action that is protected under the Workplace Relations Act 1996). 2.4 The second respondent pay to the Commonwealth of Australia a pecuniary penalty in the sum of $100 000.00 by twenty four months instalment payments payable on the first day of each month following the date of this order, the first instalment being in the sum of $8000 followed by twenty three instalments of $4000 per month. 2.5 The second respondent is directed to: (a) implement within 12 weeks from the date of this Order a trade practices compliance program in accordance with the Australian Standard AS3806 designed to prevent the first respondent from engaging in conduct that may give rise to a contravention of Part IV of the Trade Practices Act 1974 ("the Program"); (b) at the end of each twelve month period from the date of this Order until the third anniversary of the date of this Order, cause a person ("the person") to review and report on the implementation of the Program and the achievement of its objectives over the preceding twelve months; (c) cause the person to complete the review and provide a copy of his report to the respondent within one month of the end of each twelve month period from the date of this Order; and (d) provide a copy of the person's report to the applicant within seven days of receiving a written request for it from the applicant. 2.6 The second respondent cause to be published at its own expense in the respondent's journal "The Australian Worker" an advertisement in the terms of Annexure "A" hereof and further that such advertisement shall be: (a) of a size not less than 15 cm wide and 15 cm deep; (b) in text which is in type not less than 12 point; and (c) published in the next available issue of "The Australian Worker" from the date of this order. 3 Against the third respondent 3.1 The third respondent, by having in the period between 2 October 2002 and 23 October 2002, in concert with the first respondent and the second respondent: (a) induced and encouraged employees of Transfield and employees of Transfield's contractors not to attend at their place of work and not to perform work at the Site; and (b) hindered and prevented employees of Transfield and employees of Transfield's contractors and other persons delivering materials from entering the Site; being conduct that hindered or prevented Transfield from supplying building construction services to Basin Oil at the Site and that was engaged in for the purpose, and has had the effect, of causing substantial loss or damage to the business of Basin Oil, has engaged in conduct in contravention of section 45D of the Trade Practices Act 1974. 3.2 The third respondent is restrained until 30 June 2008, whether by itself, its officers, officials, delegates, servants, members or agents or howsoever otherwise, from engaging in conduct in concert with the first respondent and/or the second respondent or their officers, officials, delegates, servants, members or agents: (a) that hinders or prevents a third person supplying goods or services to a fourth person at the Site or at any other site at which a land based gas processing plant is located or under construction in Victoria; and (b) that is engaged in for the purpose, and would have or be likely to have the effect, of causing substantial loss or damage to the business of the fourth person. in contravention of section 45D of the Trade Practices Act 1974. (For the avoidance of doubt this does not restrain the third respondent from engaging in any industrial action that is protected under the Workplace Relations Act 1996). 3.3 The third respondent is restrained until 30 June 2008, whether by itself, its officers, officials, delegates, servants, members or agents or howsoever otherwise from inducing or procuring or attempting to induce or procure any member of the third respondent to engage in conduct in concert with any officers, officials, delegates, servants, members or agents of the first, second or third respondent: (a) that hinders or prevents a third person supplying goods or services to a fourth person at the Site or at any other site at which a land based gas processing plant is located or under construction in Victoria; and (b) that is engaged in for the purpose, and would have or be likely to have the effect, of causing substantial loss or damage to the business of the fourth person. in contravention of section 45D of the Trade Practices Act 1974. (For the avoidance of doubt this does not restrain the third respondent from engaging in any industrial action that is protected under the Workplace Relations Act 1996). 3.4 The third respondent pay a pecuniary penalty to the Commonwealth of Australia in the sum of $100 000.00. 3.5 The third respondent is directed to: (a) implement within 12 weeks from the date of this Order a trade practices compliance program in accordance with the Australian Standard AS3806 designed to prevent the first respondent from engaging in conduct that may give rise to a contravention of Part IV of the Trade Practices Act 1974 ("the Program"); (b) at the end of each twelve month period from the date of this Order until the third anniversary of the date of this Order, cause a person ("the person") to review and report on the implementation of the Program and the achievement of its objectives over the preceding twelve months; (c) cause the person to complete the review and provide a copy of his report to the respondent within one month of the end of each twelve month period from the date of this Order; and (d) provide a copy of the person's report to the applicant within seven days of receiving a written request for it from the applicant. 3.6 The third respondent cause to be published at its own expense in the respondent's journal "ETU National" an advertisement in the terms of Annexure "A" hereof and further that such advertisement shall be: (a) of a size not less than 15 cm wide and 15 cm deep; (b) in text which is in type not less than 12 point; and (c) published in the next available issue of "ETU National" from the date of this order. ANNEXURE 'A' PUBLIC NOTICE On 2003 the Federal Court of Australia ordered that the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union ("AMWU"), the Australian Workers' Union ("AWU") and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia ("CEPU") each pay a penalty of $100 000 for breaching the secondary boycott provisions of the Trade Practices Act ("the Act"). The orders followed legal proceedings instituted by the Australian Competition and Consumer Commission ("ACCC") against the AMWU, the AWU and the CEPU alleging that they had breached section 45D of the Act by unlawfully hindering the construction of a gas plant near Orbost. It was alleged that between 2 October 2002 and 23 October 2002 the unions maintained a picket at the entrance to the site where the plant was being constructed which prevented construction workers and vehicles delivering materials from entering the site. It was alleged that the unions also induced and encouraged construction workers not to attend at their place of work at the site during the picket. The unions allegedly took this action because the company which had been engaged to operate the plant post construction had refused to negotiate certified agreements with the unions governing the terms and conditions of its employees. In a settlement reached with the ACCC and put to the Court, the AMWU, the AWU and the CEPU admitted that they had contravened the Act and consented to orders being made against them. The Court also granted injunctions against the AMWU, the AWU and the CEPU restraining them from engaging in similar conduct in the future. Declarations were also made by the Court that the unions had contravened the Act. The unions were also ordered to implement a trade practices compliance program and publish this notice.' The appropriateness of the orders 6 I reserved my judgment in this matter because I was concerned about two issues. One was the appropriateness of making declarations which merely record conclusions as to what has occurred, and from which no consequences flow. I was concerned that such declarations might not answer the description of 'declarations of right' in s 21(1) of the Federal Court of Australia Act 1976 (Cth). The other matter was the quantum of the penalties. 7 As to the question of declarations, I am now persuaded, although reluctantly, that the practice of making declarations of the kind sought has become so endemic in cases under the Trade Practices Act that it is too late to overturn it. See Australian Competition & Consumer Commission v Francis [2004] FCA 487 [92] – [113]. The practice appears to have the tacit approval of the High Court of Australia. See Rural Press Ltd v Australian Competition and Consumer Commission [2003] HCA 75 (2003) 203 ALR 217. The declarations sought in the present case contain sufficient detail to avoid what the majority of the High Court described at [90] as 'a bad precedent'. 8 The question of the quantum of the penalties causes me greater difficulty. Bearing in mind that the maximum pecuniary penalty fixed by s 76(1A)(a) of the Trade Practices Act for a body corporate in respect of a contravention of s 45D of the Trade Practices Act is $750 000, if I had been determining the penalties myself in this case I should have fixed a figure considerably lower than the $100 000 agreed. The uniformity of the penalties suggests that no attempt has been made in the settlement of the proceeding to attribute relative blame among the respondents. The respondents are not profit-making enterprises. They did not engage in the conduct the subject of the proceeding for their own gain, or the gain of their officials. Their overriding concern was no doubt to protect the employees of Upstream Petroleum Pty Ltd, including those employed in the future, and perhaps other employees at the workplace concerned, from possible exploitation by the negotiation individually of their terms and conditions of employment. The use of a picket is a very traditional means of engaging in industrial action over such an issue. With the exception of a four-hour period on 2 October 2002, access to the site was not blocked. But for the involvement of other enterprises, whose operations on the site in question were hindered by the picket, the events would have been unremarkable. The respondents have reached agreement in relation to compensation to Basin Oil Pty Ltd for its losses. The respondents are entitled to credit for their cooperation with the Commission and for the saving of public money in relation to the litigation. It is not suggested that any of the respondents has a record of similar contraventions. In these circumstances, to call upon the respondents each to pay such a large sum from their resources, which ultimately come from the pockets of wage-earners appears to be excessive. 9 Considerable weight must be given to the fact that each of the respondents has agreed to pay a penalty of $100 000. There can be little doubt that the agreement has been brought about as much for financial reasons as for any other. Facing a proceeding that would be long and involved if the Commission were put to its proof, the respondents probably chose to pay larger amounts in penalties rather than incurring large bills for the Commission's costs of the proceeding. It is relevant that the orders sought by consent do not include orders for costs. It would be going too far to say that the Commission has misused its position as a regulator to overbear the respondents and procure an agreement to penalties of the magnitude that it could not otherwise hope to achieve. 10 A factor that would tend to increase the size of the penalty is that the picket continued to be operated despite the orders of the Australian Industrial Relations Commission. The delay in the construction of the plant at the site was thus extended. The absence of any program or training within each of the respondents, designed to ensure compliance with the Trade Practices Act, is another factor tending to increase the magnitude of the penalties. 11 My conclusion is that the penalties sought must be at the very highest end of the range appropriate for conduct of this kind. On that basis, I am prepared to make the orders in respect of those penalties. 12 I have not been troubled significantly by the injunctions sought by consent as to future conduct, the establishment of compliance programs and the publication of advertisements. Again, left to my own devices, I might not have granted injunctions in the terms sought, but the consent of the respondents overcomes any difficulties I may have had. The effect of injunctions as to future conduct is to broaden the range of sanctions, by adding possible penalties for contempt of court. The choice of any period for the operation of such an injunction is arbitrary. If the respondents are prepared to submit themselves to such a regime, I do not propose to interfere with their choice. Conclusion 13 For these reasons, I propose to make the orders sought substantially in the form in which they appear in the minutes of consent orders, but without the headings and with some minor changes in drafting. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gray. Associate: Dated: 30 April 2004 Counsel for the Applicant: Dr C Jessup QC with M Wheelahan Solicitor for the Applicant: Corrs Chambers Westgarth Counsel for the Respondents: WL Friend with C Dowling Solicitor for the Respondents: Maurice Blackburn Cashman Date of Hearing: 11 September 2003 Date of Judgment: 30 April 2004