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Re: CONCRETE CONSTRUCTIONS (NSW) PTY. LIMITED
And: AUSTRALIAN BUILDING CONSTRUCTION EMPLOYEES' AND BUILDERS' LABOURERS'
FEDERATION; BUILDING CONSTRUCTION EMPLOYEES' AND BUILDERS LABOURERS'
FEDERATION OF NEW SOUTH WALES; STEVE BLACK; WILLIAM ROSS HEFFERNAN; DOUGLAS
SIDDONS; DAVID CRODEN; LARRY GAINES; WILLIAM MATCHETT; ZELKO JOSEPH MARIC;
TERENCE DOYLE; NORMAN LESLIE GALLAGHER, STEVE BLACK, and WILLIAM MATCHETT
representing all the members of the unincorporated association known as the
AUSTRALIAN BUILDING CONSTRUCTION EMPLOYEES' AND BUILDERS LABOURERS'
FEDERATION
No. G950 of 1988
Trade Practices - Trespass - Unincorporated Association - Conciliation and
Arbitration - Statute
COURT
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Morling J.(1)
CWDS
Trade Practices - secondary boycott - BLF - engagement in conduct - whether
for purpose of causing loss - whether conduct likely to have effect of causing
substantial loss - Trade Practices Act 1974 s. 45D (1)
Trespass - building construction sites - entry by members of BLF - whether
building sites in possession of builder - whether exclusive possession - right
to bring action in trespass
Unincorporated Association - whether liable to be sued - members of
association - appointment of persons to represent members - whether
appointment proper - Federal Court Rules, Order 6, rule 13.
Conciliation and Arbitration - Federal union - deregistration - union
remains unincorporated association - State union - State union deregistered -
registration under Trade Union Act 1881 extant - whether deregistered State
union a body corporate
Statute - interpretation - "person" - whether a State union a person within
the meaning of s.45D of Trade Practices Act - whether State union a "body
corporate"
Trade Practices Act 1974, ss. 45D(1), 84(2)
Federal Court Rules, Order 6, rule 13
HRNG
SYDNEY
#DATE 25:8:1988
Counsel for applicant: A.B. Shand Q.C. with D.A. Cowdroy
instructed by: Westgarth Baldick
Counsel for fourth respondent: S. M. Littlemore with M.L. Brabazon
instructed by: Geoffrey Edwards & Co.
ORDER
That the second respondent by itself its servants and agents, and the third,
fourth, fifth, sixth, seventh, ninth and tenth respondents be permanently
restrained from entering upon the premises described in the schedule hereto
and the buildings being constructed thereon.
That the eleventh respondents as representing all the members of the
Australian Building Construction Employees' and Builders Labourers' Federation
be permanently restrained from entering upon the premises described in the
schedule hereto and the buildings being constructed thereon.
That the second respondent by itself its servants and agents and the third,
fourth, fifth, sixth, seventh, ninth and tenth respondents be permanently
restrained from engaging directly or indirectly in concert with another person
or other persons in conduct that hinders or prevents the supply to the
applicant of building construction services by any person or persons at any
one or more of the building construction sites described in the schedule
hereto and the buildings being constructed thereon where such conduct is
engaged in for the purposes and would have or be likely to have the effect of
causing substantial loss or damage to the business of the applicant contrary
to the provisions of Section 45D of the Trade Practices Act 1974.
That the eleventh respondents as representing all the members of the
Australian Building Construction Employees' and Builders Labourers' Federation
be permanently restrained from engaging directly or indirectly in concert with
another person or other persons in conduct that hinders or prevents the supply
to the applicant of building construction services by any person or persons at
any one or more of the building construction sites described in the schedule
hereto and the buildings being constructed thereon where such conduct is
engaged in for the purposes and would have or be likely to have the effect of
causing substantial loss or damage to the business of the applicant contrary
to the provisions of Section 45D of the Trade Practices Act 1974.
That the second respondent by itself, its servants and agents, and the
third, fourth, fifth, sixth, seventh, ninth and tenth respondents be
permanently restrained from:
(a) Aiding, abetting, counselling or procuring
any person or persons to engage in the
conduct referred to in Orders 1, 2, 3, and
4;
(b) Inducing or attempting to induce a person
or persons, whether by threat, promise or
otherwise, to engage in the aforesaid
conduct;
(c) Being in any way, either directly or
indirectly, knowingly concerned or party to
an agreement to carry out the aforesaid
conduct; or
(d) Conspiring with any other person or persons
to engage in the aforesaid conduct.
That the eleventh respondents as representing all the members of the
Australian Building Construction Employees' and Builders Labourers' Federation
be permanently restrained from:
(a) Aiding, abetting, counselling or procuring
any person or persons to engage in the
conduct referred to in Orders 1, 2, 3, and
4;
(b) Inducing or attempting to induce a person
or persons, whether by threat, promise or
otherwise, to engage in the aforesaid
conduct;
(c) Being in any way, either directly or
indirectly, knowingly concerned or party to
an agreement to carry out the aforesaid
conduct; or
(d) Conspiring with any other person or persons
to engage in the aforesaid conduct.
That the application be dismissed as against the first and eighth
respondents.
That the respondents, other than the first and eighth respondents, pay the
applicant's costs.
That the matter stand over to a date to be fixed for consideration of the
question of damages.
THE SCHEDULE
(a) Chevron Hotel, Rockwall Crescent, Potts Point.
(b) Gateway Plaza, Cnr. Pitt Street and Reiby Place,
Sydney.
(c) 135 King Street, 135 King Street, Sydney.
(d) Carringbush, 572 George Street, Sydney.
(e) Grosvenor Place, Level 3, 117-119 Harrington & Essex
Streets, Sydney.
(f) Hurstville Viewpoint, Bridge Street, Hurstville.
(g) Malabar Sewerage Treatment Plant, Malabar.
(h) Pitt Street Hotel, 267 Pitt Street, (Cnr. Bulletin
Place), Sydney.
(i) Sydney Futures Exchange, 2nd Floor,
117-119 Harrington Street, Sydney.
(j) Warragamba Dam, Recreation Area, Warragamba.
(k) Yard, 12 Loyalty Road, North Rocks.
NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal
Court Rules.
JUDGE1
The applicant is engaged in the building construction industry. It is in
the course of erecting a number of substantial buildings, including commercial
buildings in Pitt Street Sydney ("Gateway Plaza site"), King Street, Sydney
("King Street site") and Kings Cross ("Chevron Hotel site"). It seeks relief
against all of the respondents in respect of what it claims are past and
apprehended breaches of s.45D(1) of the Trade Practices Act 1974 and in
respect of past and apprehended trespasses by the respondents on the lands
upon which the buildings are being constructed.
2. The first respondent ("the Federal Union") was, until 14 April 1986, an
organization of employees registered pursuant to the Conciliation and
Arbitration Act, 1904. On that date the Builders Labourers' Federation
(Cancellation of Registration) Act 1986 and the Builders Labourers' Federation
(Cancellation of Registration - Consequential Provisions) Act, 1986 came into
force. Section 3 of the first-mentioned Act cancelled the Federal Union's
registration under the Conciliation and Arbitration Act. Thereafter it has
continued to operate as an unincorporated association. The circumstances in
relation to the deregistration of the Federal Union are referred to in the
judgment of Beaumont J. in Australian Building Construction Employees' and
Builders Labourers' Federation v Master Builders' Association of New South
Wales (1986) 69 ALR 515 at p 518 et seq.
3. The second respondent ("the State Union") is a trade union registered
under the Trade Union Act, 1881 (N.S.W.). Consequent upon a declaration made
by the Governor pursuant to s.3(1) of the Industrial Arbitration (Special
Provisions) Act, 1984 (N.S.W.) the registration of the State Union under the
Industrial Arbitration Act 1940 was cancelled. Any doubts as to the validity
of the declaration were removed by the Builders Labourers' Federation (Special
Provisions) Act 1986 (N.S.W.). However, the State Union continues to exist as
a trade union registered under the Trade Union Act.
4. It will be convenient in these reasons to refer to the Federal Union and
the State Union collectively as "the B.L.F." and to the other respondents as
"the B.L.F. representatives".
5. None of the respondents, save the fourth respondent, Mr Heffernan, entered
appearances. No evidence was given by or on behalf of Heffernan. The
applicant sought to obtain documents and records from the Federal and State
Unions relating to their affairs but subpoenas for production of such
documents and records, although served, were unanswered. In these
circumstances the relationship between the B.L.F. and the other respondents
was not as easily proved as it might otherwise have been.
6. It is convenient first to deal with the case against the third to tenth
respondents. The third respondent, Black, is the secretary of the State
Union. The fourth respondent, Heffernan, is one of the trustees of the State
Union and is described as an "organizer" in a pamphlet distributed to men
working on the applicant's building sites. This and other pamphlets purported
to be authorized by Black and it is reasonable to infer that they were issued
with the knowledge and authority of the Federal and State Unions. The fifth
respondent, Siddons, is referred to in one of the pamphlets as a "B.L.F.
Official". The sixth respondent, Croden, is referred to in one of the
pamphlets in terms from which it can be inferred that he is in sympathy with,
and actively supports, industrial action taken on the applicant's building
sites by the B.L.F. The eighth respondent, Matchett, is a trustee of the
State Union. There is no evidence as to the formal relationship between the
seventh, ninth and tenth respondents and the B.L.F., but it can safely be
inferred from the evidence that they are closely associated with and take an
active part in the B.L.F.'s industrial activities.
7. I expressed the view during the course of the hearing that the Federal
Union, being an unincorporated association, was not capable of being sued
under the name of the first respondent. For this reason, the eleventh
respondents were added to represent the members of the unincorporated Federal
Union. I shall refer again to this matter later in these reasons.
8. The activities of the B.L.F. representatives that give rise to the
proceedings are an unusual form of industrial activity. In the face of
repeated protests by the applicant's site managers and others, the B.L.F.
representatives have entered upon one or other of the applicant's building
sites. On most occasions they have distributed pamphlets to men on the job.
When challenged, they have asserted that their business on the sites is to
look after the affairs of employees who are members of the B.L.F. There is
only the scantiest evidence that there are, in fact, any members of the B.L.F.
working on any of the applicant's building sites. All workers on the sites
are members of other unions, especially the Building Workers Industrial Union
of Australia ("the B.W.I.U.A.").
9. The pamphlets contain many statements which can only be described as
strident industrial rhetoric. In substance, the pamphlets urge workers to
ignore the Arbitration Commission and to take direct action against employers
in support of industrial claims. Most, if not all, of the pamphlets bear the
indorsement: "Authorised by: Steve Black, State Secretary, A.B.C.E. & B.L.F.
(N.S.W.) Branch". An idea of the nature of the statements may be gleaned
from the following excerpts from some of them: "No Police in Industrial
Disputes". "Join a Fighters Union - The B.L.F." "Take Direct Action -
Guerrilla Tactics are Best - Stop Work Meetings, Hard-Hitting Bans and
Limitations." "The major thing is to hurt the bosses in the pocket ..."
"Hard-hitting bans, bans on concrete pours, bans on sections of jobs: ..."
"We need to get site after site passing resolutions at stopwork meetings that
we are finished with the Arbitration Court."
10. The attendances by the B.L.F. representatives at the building sites
causes disruption to the work in progress. Some employees stop work to attend
meetings at which they are addressed by the B.L.F. men. More importantly,
there is tension between the B.W.I.U.A. and the B.L.F. Many members of the
B.W.I.U.A. resent the presence of B.L.F. representatives on the work sites.
The B.W.I.U.A. has informed the applicant that unless it keeps B.L.F.
representatives off its building sites, B.W.I.U.A. members will withdraw
their labour while the B.L.F. representatives are on site.
11. On many occasions the site managers have called police to remove one or
other of the B.L.F. representatives from the building sites. This action has
caused trouble with the B.W.I.U.A. That union objects to employers in
general, and the applicant in particular, calling members of the police force
to deal with industrial disputes. The B.W.I.U.A. has threatened to call its
members out on strike if police are again called to the applicant's building
sites. The applicant therefore finds itself in an invidious position. If
it calls the police when the B.L.F. representatives make uninvited visits to a
building site, the men on the job cease work. If the police are not called,
the B.W.I.U.A. threaten to call the men out on strike. In these circumstances,
the applicant has little alternative but to bring these proceedings against
the respondents if it is to complete the buildings under construction without
continued industrial disruption.
12. Some idea of the nature of the cases made against the B.L.F.
representatives may be gained from the following brief description of the
evidence against them.
13. On 5 May 1988 Mr Stinson, the project manager of the Gateway Plaza site,
received information that five unauthorized male persons were on the site. At
about 1.10 pm he observed Black, and asked him to leave. Black said he would
leave when he was ready. The police were present and, after some further
conversation, Black was escorted from the site by the police.
14. At about 11.50 am on 17 May Black, in company with the respondent Maric,
was observed in a lunch shed on the Gateway Plaza site. They were asked to
leave but they refused to do so. The police were called at about 11.55 am.
At 12.10 pm they were again asked to leave and they again refused. Black
said that they would leave when they had finished their business. At 12.15 pm
they were arrested and escorted from the site.
15. At about 2.30 pm on 18 May Black and the respondent Siddons entered the
Gateway Plaza site. They were both asked to leave and Black refused, saying:
"Why call the Police? You are just like Hitler." The police were called.
Stinson told Black and Siddons: "You are seriously disrupting work on this
site. I have called the police because it seems the only way to get you off
the site and to enable work to continue without disruptions." Black replied:
"Your attempts to go through the Courts to prevent us representing our members
will not succeed." Black and Siddons both walked off the site at 3.15 pm.
The reference to the "Courts" was no doubt a reference to an application made
in the present proceedings to punish Black and others for their alleged
contempt in disobeying interlocutory orders made by Foster J.
16. Black and Maric were seen at about 1.15 pm on 19 May in a lunch shed on
the Gateway Plaza site. Stinson asked them to leave. They refused to do
so. The police were called at about 1.45 pm. They again refused to leave.
They were arrested and escorted off the site at about 2 pm.
17. On 17 June Black was again on the Gateway Plaza site. He distributed
pamphlets and talked to men working on the job. Black was also seen talking to
a group of about a dozen men in a site shed. When asked what he was doing on
the site he said he was handing out pamphlets. Stinson also told him that he
was causing loss, disruption and damage to the job and that he was not
entitled to be on the premises. Stinson told Black he was trespassing and
that he had been asked to leave the premises at least twenty times. Black
left the site at about 8.55 am.
18. Black entered the Chevron Hotel site on 10 and 18 March, the King Street
site on 3, 10, 11, 17, and 18 March, and on 27 and 28 April and on 2, 3 and
13 May.
19. Heffernan entered the Gateway Plaza site on 5 and 18 May, 17 and 20
June, and 19 and 28 July. He entered the Chevron Hotel site on 2, 9 and 23
June, and on 21 July and the King Street site on 18 March, 28 and 29 April, 2,
3 and 13 May and 20 July. On his first visit to the Gateway Plaza site he
left when first asked to do so. On his second visit he was in company with
Maric. Stinson asked Heffernan and Maric to leave, but they declined, saying
they would leave when they had finished their business. The police were
called and Heffernan and Maric were again asked to leave but they refused to
do so. They were arrested and escorted off the site.
20. Heffernan was seen handing out pamphlets on the Gateway Plaza site on 17
June. On his visit to this site on 20 June he was told by Stinson that he
was causing loss, disruption and damage to the applicant's business. He
replied that he was only handing out pamphlets and was not stopping anybody
from working. Stinson told him he was not entitled to be on the premises and
that he was trespassing. Heffernan said he would leave when he had finished
handing out pamphlets. When he left the site he said he would be coming back
the following day.
21. Heffernan entered the Chevron Hotel site on 2 June in company with
Siddons. He was observed handing out pamphlets. Mr Challinor, the project
manager of this site, told Heffernan and Siddons that they were not lawfully
entitled to be on the premises, and that they kept forcing him to report the
matter to the police in order to have them removed. Challinor said that they
were causing damage to the applicant's business. Heffernan replied that he
didn't care, he had a job to do and would keep coming back onto the site as
long as he was instructed to do so.
22. Heffernan has also entered the King Street site. The manager of that
site is Mr Russell Perkins. He said that on 17 March 1988 he saw Heffernan
on the site and told him he was not entitled to be there and asked him to
leave. Heffernan did not do so, and after about twenty minutes the police
arrived and escorted Heffernan and Black, who was also present, from the site.
On 28 April Heffernan entered the King Street site in company with Black and
on 2 May he was there in the company of Black and Siddons. He again entered
the site on 3 May. On this occasion there were a number of other men
apparently connected with the B.L.F. on the site. These persons included
Siddons and the sixth respondent, Croden.
23. Heffernan was seen on the Gateway Plaza site on 19 July. He was told
there was an order of this Court restraining him from entering the premises.
When asked to leave he said he was going to see two of his members. He was
again told that he was not authorized to be on the premises and was asked to
leave. He said was not stopping anyone from working. He also said that "We
are a trade union under the Trade Union Act 1888 (sic) and we are servicing
our members." Maric was also on the site that day and was observed handing out
pamphlets. On 28 July Heffernan was again seen on the Gateway Plaza site,
this time in the company of the tenth respondent, Doyle. In the course of a
conversation with Stinson, Heffernan said: "I will do everything in my power
to stop Concretes. They have quadrupled the security guards on King Street.
They thought the Courts would stop me, well they didn't. That should hang
me."
24. Siddons made numerous visits, of a kind similar to those described above,
to the Gateway Plaza, the Chevron Hotel and King Street sites. He made only
one visit, on 20 May 1988, to the Gateway Plaza site but between 9 March and
21 June he entered the Chevron Hotel site on a dozen or so occasions. Between
11 March and 3 June he entered the King Street site on at least a dozen
occasions. Croden's uninvited visits were confined to the Chevron Hotel and
King Street sites. Maric made unauthorized entrances upon the Gateway Plaza
site on seven or eight occasions between 5 May and 19 July and between 3 May
and 21 July he entered the Chevron Hotel site on four or five occasions.
Between 3 May and 28 July the respondent Doyle made about eight unauthorized
visits to one or other of the building sites. The evidence against the
respondent Matchett is very slim. He was observed on the King Street site on
4 March in company with Gaines, the seventh respondent, and again on 13 May.
The evidence against the respondent Gaines is that he made unauthorized visits
to the Chevron Hotel site on two occasions on 18 May, and on one occasion on
27 June. He was also on the King Street site on 4 March and 3 May.
25. The site manager of the Chevron Hotel site, Mr Rea, observed Siddons and
Croden in one of the site sheds on 24 May. He asked them why they kept coming
onto his company's building sites. The reply was: "We are trying to attack
Concretes". On 9 June he told Heffernan that by coming onto the site and
stirring up trouble he was causing damage to the applicant's business and that
if he did not leave he would call the police. Heffernan replied: "I don't
care what you do. We are here to do a job the same as you are. We will
continue to come onto the site as long as we are instructed to do so." On 21
June Rea had a conversation with Siddons and Croden in the course of which he
told them that he could not understand why they kept coming back onto the
site. Croden replied: "You arrested Doug (i.e. Siddons) this morning on this
site. That was a big mistake, we have now targeted Chevron, and we are going
to keep coming back."
26. It is convenient first to consider the claims in trespass. I do not
think that the evidence is sufficient to establish a case against Matchett.
But in the case of the other B.L.F. representatives the evidence establishes
that, unless restrained by the Court, they will continue to make unauthorized
and unwelcome visits to the applicant's building sites.
27. Counsel for Heffernan submitted that the applicant has no right to bring
an action in trespass. They argued that the applicant was a mere licensee of
the sites upon which the relevant buildings are being constructed and that, as
such, it could not maintain proceedings in trespass. As to the Gateway Plaza
site, there is uncontradicted evidence that the applicant has been in actual
possession of it since about July 1986. There is no evidence to suggest that
anybody else has had possession of the site, or of any part of it, since that
time. It was a term of the building agreement made between the applicant and
the proprietor of the site that "The Builder shall, upon the Proprietor making
the Site available to him, have legal possession of the Site for the purpose
of carrying out his obligations under this Agreement ...". It was a further
term of the agreement that "The Builder shall allow to the Architect, to the
Proprietor, to the other identified Consultants for the Works and to their
respective authorized representatives ... access at all reasonable time to the
Site and to The Works and to all places where work under this Agreement is
being performed ...". In my opinion these provisions should be construed as
giving exclusive possession of this site to the applicant while it is
constructing the building upon it. Common sense dictates that a builder of a
large commercial building in the centre of Sydney must of necessity be given
exclusive possession of the building site. This is not to say, of course, that
the proprietor might not stipulate that, although having exclusive possession
of the site, the builder shall permit restricted access to other persons.
28. In the case of the Chevron Hotel site the evidence is that the applicant
has been in actual possession of the site since about February 1988. There
is no evidence that, since that time, any other person has been in possession
of the whole or any part of it. It is a term of the contract under which the
applicant is constructing the building on this site that "The Proprietor shall
ensure that the Builder is provided with all necessary possession of the Site
on or before the Date for Possession, as may be necessary or requisite to
enable the Builder to carry out its obligations in terms of this Agreement."
I think the evidence is sufficient to establish that the applicant also has
the right to exclusive possession of this site.
29. The building contract for the construction of the building on the King
Street site was not tendered in evidence. It was said to have been mislaid.
However, oral evidence was given that the applicant has been "in actual
possession of the site" since 9 March 1987. In the absence of evidence that
any other person has been in possession of the whole or any part of the site
since that date and having regard to the nature of the work being carried out
on the site and of the site itself, I think it is reasonable to infer that the
applicant has exclusive possession of it.
30. It is not in doubt that the unlawful entry by one person onto land in the
possession of another is a trespass for which an action lies. See Halsbury,
Laws of England, 4th ed., Vol. 45, para. 1384. Nor is it in doubt that a
person in possession of land, even if he does not have the legal title to it,
may maintain proceedings in trespass: Fleming, The Law of Torts, 7th ed.,
1987, p 41. In my opinion, the applicant has established its right to bring
proceedings in trespass.
31. Counsel for Heffernan further submitted that their client was entitled to
enter the building sites as of right and without the authority of the
applicant and that, accordingly, his repeated entries upon the sites did not
amount to trespasses. It may be conceded that if the law gives a person
authority to enter land, he does not commit a trespass if he enters in
pursuance of his authority: Thomas v Sawkins (1935) 2 KB 249. The source of
Heffernan's authority to enter the building sites was said to be Articles 19
and 22 of the International Covenant on Civil and Political Rights, the terms
of which are set out in Schedule 2 to the Human Rights and Equal Opportunities
Commission Act 1986. Article 19 provides, inter alia, that everyone shall
have the right to hold opinions without interference and to freedom of
expression. The exercise of these rights are expressed to be subject to such
restrictions "as are provided by law and are necessary for respect of the
rights or reputations of others and for the protection of national security,
public order, public health or morals."
32. Article 22 provides that everyone shall have the right to freedom of
association with others, including the right to form and join trade unions for
the protection of his interests. The Article further provides that no
restrictions may be placed on the exercise of this right other than, inter
alia, those which are prescribed by law and which are necessary in a
democratic society in the interests of public safety, public order or the
protection of the rights and freedoms of others.
33. I was not referred to any legislation having the effect of making any
provisions in the Covenant part of Australian municipal law. As Mason J.
observed in Koowarta v Bjelke-Petersen (1982) 153 CLR 168 at p 224, it is a
well settled principle of the common law that a treaty not terminating a state
of war has no legal effect upon the rights and duties of Australian citizens
and is not incorporated into Australian law on its ratification by Australia.
This being so, the submission that the provisions of the Covenant give the
B.L.F. representatives authority to enter construction sites in the possession
of the applicant fails in limine.
34. I would add that even if the provisions of the Covenant had become part
of Australian municipal law, they would not have come to the aid of the
respondents in the present case. The argument that Articles 19 and 22
entitle the respondents to commit acts which would otherwise amount to
trespasses is insupportable. The respondents' rights, whatever they may be,
to engage in industrial and political activity and to freedom of expression
could not possibly be construed as affording them the right to enter the
applicant's premises against its will.
35. In my opinion the applicant has made out its case in trespass against the
B.L.F. representatives, other than Matchett. I am satisfied that, unless
restrained by orders of this Court, the trespasses will continue. It is
convenient to defer consideration of the case in trespass against the Federal
and State Unions and the representative (eleventh) respondents until the
claims against them under s.45D of the Trade Practices Act are considered.
36. I turn now to consider the claims under the Trade Practices Act. It is
alleged that each of the respondents in concert with one or more of the other
respondents has engaged in conduct that has hindered the supply to the
applicant of building construction services by workers on the various
construction sites, and that this conduct was engaged in for the purpose, and
had the effect, of causing substantial loss or damage to the applicant's
business. I do not have any doubt that the conduct that has been engaged in
by each B.L.F. representative has been pursued in concert with the other
respondents. I think it is a reasonable inference from the totality of the
evidence that the great number of trespasses onto the building sites are not
unconnected. It may also be reasonably inferred that the trespasses have
been committed as part of a course of conduct encouraged and authorized by the
Federal and State Unions and engaged in by the other respondents in concert
with each other and with the Unions.
37. In making this finding I am conscious of the unique legal status that
attaches to the State Union. As I have observed, it is a trade union
registered under the Trade Union Act 1881 (N.S.W.) but it has lost its
registration under the Industrial Arbitration Act 1940. The legal status of
a union registered only under the 1881 Act has been the subject of much
judicial comment. The decision of the House of Lords in Taff Vale Railway
Co. v Amalgamated Society of Railway Servants (1901) AC 426 was applied in a
line of cases decided in New South Wales in which it was held that a trade
union registered under the 1881 Act has quasi-corporate status and is an
entity that is distinguishable from the individuals who may be its members:
see Egan v Barrier Branch of Amalgamated Miners' Association (1917) 17 SR
(N.S.W.) 243, Wheatley v Federated Ironworkers' Association of Australia
(1960) 60 SR (N.S.W.) 161 and the persistent line of authority in the New
South Wales Industrial Commission referred to in Moore v Doyle (1969) 15 FLR
59 at p 116. A different view was initially taken in the Commonwealth
Industrial Court (see, for example, Costello v Gietzelt (1960) 1 FLR 446 at p
454), but in Moore v. Doyle (supra) at p 116 that Court expressed the view
that a New South Wales registered trade and industrial union is a separate
legal entity with a legal personality of its own distinct from its members at
any particular time. In arriving at that view the Commonwealth Industrial
Court was influenced by powerful dicta in the judgments of Fullagar J. (with
whom Dixon C.J. and Kitto J. agreed) and Menzies J. in Williams v Hursey
(1959) 103 CLR 30.
38. In Leon Laidely Pty Limited v Transport Workers Union of Australia (1980)
28 ALR 129 Lockhart J. held that the New South Wales Branch of the Transport
Workers Union of Australia was a separate entity with a legal personality of
its own distinct from its members. In his opinion, the State Union had a
corporate personality and was a body corporate. Accordingly, it was a
"person" within the meaning of s.45D of the Trade Practices Act. His Honour's
decision was affirmed on appeal (28 ALR 589). Two members of the bench on
appeal found it unnecessary to express a firm view on the question of the
status of the Union, but Deane J. expressed what he described as a "definite
view, even if only a tentative one" that a union registered under the
provisions of the Trade Union Act 1881 is a separate legal entity with a legal
personality of its own distinct from its members at any particular time, is
capable of conspiring, and being sued for conspiracy, with its officers and
members and is a person for the purposes of s.45D(1) and a "body corporate"
for the purposes of s.45D(6) of the Trade Practices Act. It is true that the
Transport Workers Union enjoyed registration under the Industrial Arbitration
Act 1940. In that respect, the case is distinguishable from the present. But
Laidely's Case did not turn on that point. I think the State Union should be
treated as a "person" for the purposes of s.45D(1).
39. I am not in doubt that the actions of the respondents have hindered the
supply of building construction services by workers on the construction site.
The word "services" is given a wide definition in s.4(1) of the Trade
Practices Act and includes benefits that are provided under a contract in
relation to the performance of work. There is much evidence, which I accept,
that work on the sites has been interrupted when the respondents have
trespassed.
40. The substantial question that arises for consideration on this part of
the applicant's case is whether it has been established that the respondents'
conduct is being engaged in for the purpose, and is likely to have the effect
of, causing substantial loss to the applicant's business. Counsel for
Heffernan submitted that the evidence established only that the conduct was,
and is being, engaged in by all the respondents for the purpose of pursuing
industrial objectives and hence is not caught by s.45D(1).
41. I accept that the respondents had an industrial purpose when engaging in
the conduct alleged against them. But the real question is whether it has
been established that they have two purposes, one an industrial purpose and
the other the purpose of causing damage to the applicant's business. It is
sufficient for the applicant to prove that the latter purpose is only one of
the respondents' purposes, and that it is not their dominant purpose: see
s.45D(2).
42. I have not found this question easy of resolution. In many cases when a
union and its members engage in conduct for the purpose of pursuing an
industrial objective it will not be difficult to prove that another purpose of
the conduct is to bring direct pressure to bear upon a corporation, thereby
causing it loss. The setting up of picket lines and the imposition of black
bans are examples of conduct that may have the dual purpose of achieving an
industrial objective as well as causing loss to a corporation: cf. Barneys
Blu-Crete Pty Limited v Australian Workers' Union (1979) 43 FLR 463 and
Mudginberri Station Pty Limited v Australasian Meat Industry Employees Union
(1985) 61 ALR 280. The conduct engaged in by the respondents in the present
case is not so readily identifiable as having as one of its purposes the
causing of damage. However, the novelty of the conduct is not a reason for
exempting it from the operation of s.45D(1) if it is proper to infer from the
evidence that it is being engaged in for purposes which include the purpose of
causing substantial loss or damage to the applicant's business.
43. At an interlocutory stage in these proceedings I was of the opinion that
the evidence did not establish that in trespassing upon the applicant's
premises the B.L.F. represent atives had any purpose other than speaking to
members of the B.L.F. and other men working on the building sites. At that
stage of the proceedings I was of the view that while the representatives may
well have appreciated that their presence on the building sites would cause
friction with other unionists, it was not one of their purposes to cause
substantial loss or damage to the applicant's business. Accordingly, I then
dismissed an application that some of the respondents be adjudged guilty of
contempt of Court in respect of alleged breaches of interlocutory orders made
by Foster J. enjoining them from engaging in conduct proscribed by s.45D(1).
44. However, the evidence now before the Court on this question is much
stronger than it was previously. That this is so may be appreciated by
contrasting the evidence against Heffernan and Siddons with the evidence that
was tendered against them in the contempt proceedings. At that stage of the
proceedings, the only evidence against Heffernan was that he entered the
Gateway Plaza site and refused to leave upon request on one occasion, i.e. on
18 May 1988. But the evidence now before the Court is that he has trespassed
repeatedly upon the Gateway Plaza, Chevron Hotel and King Street sites over
the period from 12 May 1988 to 28 June 1988. He must have been aware whenever
he trespassed that his presence was likely to have the effect of affecting the
work performance of the men on the job. I accept the evidence that the
presence of B.L.F. men on the building sites causes trouble with workers
employed by sub-contractors. These workers, who are all members of other
unions, resent the presence of B.L.F. men on jobs on which they are working.
45. As to Siddons, the only evidence admissible to prove the charge against
him in the contempt proceedings was that on one occasion, i.e. 18 May, he
entered the Gateway Plaza site without authority and remained for about 45
minutes until the police were called. There was evidence of four other
unauthorized entries by him upon the Chevron Hotel site, but those visits
occurred outside the period covered by the charge. However, at this stage of
the proceedings, the evidence establishes that over a period of about three
months Siddons has trespassed on about twenty occasions on the applicant's
building sites.
46. The purpose referred to in s.45D(1) is the "operative subjective purpose
of those engaging in the relevant conduct in concert": see Tillmanns
Butcheries Pty Limited v Australasian Meat Industry Employees' Union (1979) 27
ALR 367 at p.382 per Deane J. His Honour also said (at p 383) in that case:
"...in my view, the question to be answered in
determining whether conduct was engaged in for a
'purpose' mentioned in s 45D(1) of the Act is, to
adopt the words of Viscount Simon L.C. in Crofter
Hand Woven Harris Tweed Co Ltd v Veitch (1942) AC
435 at 444-5, to be answered not by reference to
whether it was appreciated that the relevant
conduct might have the specified effect but by
reference to the real reason or reasons for, or the
real purpose or purposes of, the conduct and to
what was in truth the object in the minds of the
relevant persons when they engaged in the conduct
in concert."
47. To the same effect is the dictum of Bowen C.J. in Laidely that the
purpose referred to in s.45D(1) is "the subjective purpose of those who are
engaging in the conduct." (28 ALR at p 594).
48. I have already referred to evidence which, in my opinion, goes some way
towards establishing that one purpose of the conduct engaged in by the
respondents is to damage the applicant's business. I refer to the evidence
that on 24 May Siddons and Croden said: "We are trying to attack Concretes"
and that on 21 June Croden, in the presence of Siddons said: "You arrested
Doug (i.e. Siddons) this morning on this site. That was a big mistake, we have
now targeted Chevron, and we are going to keep coming back." Reference should
also be made to Heffernan's statement on 28 July when on the Gateway site
that: "I will do everything in my power to stop Concretes ... They thought
the Courts would stop me, well they didn't." Counsel for Heffernan submitted
that this last-mentioned statement was no more than a heated exchange
following the death of a builder's labourer on one of the applicant's building
sites. Stinson did not concede that this was so. If the statement was not
intended by Heffernan to convey that he intended to disrupt the applicant's
business he could easily have said so in the witness box.
49. It is significant that no other construction company engaged in major
commercial projects has been subjected to industrial action of a similar kind.
According to the Manager for Industrial Relations of the Australian Federation
of Construction Contractors, up until March 1988 members of the B.L.F. had
entered construction sites of most of the companies whose representatives made
up the committee of the Federation, but since that time the applicant is the
only member of the Federation which has reported unauthorized entries upon its
building sites by members of the B.L.F. causing disruption to building
operations.
50. If the only purpose of the respondents has been to keep in touch with
members of the B.L.F. working on construction sites and to give them pamphlets
and other literature proclaiming the Unions' policies, it would have been a
simple matter to achieve that purpose without disrupting the applicant's
business. There was nothing to prevent the B.L.F. representatives from
communicating with the workers by handing them pamphlets and other literature
as they entered and left the sites. Indeed, it is reasonable to infer that
the Unions have a record of the postal addresses of their members and that
correspondence addressed to them through the post would be duly received.
The fact that the trespasses have occurred at times when they would almost
inevitably distract some workers from performing their ordinary work tends to
justify the drawing of an inference that the respondents both knew and
intended that disruption would be caused to the applicant's business. The
failure of the respondents to give evidence explaining the reasons for their
conduct makes easier the drawing of this inference.
51. At first blush, it is not immediately apparent why the respondents have
as one of their purposes the causing of substantial loss to the applicant's
business. However, I think it would be naive to think that the causing of
loss to the applicant was not one of those purposes. It is plain from the
pamphlets distributed on the sites that the B.L.F. is making a determined
effort to ingratiate itself with men working on the jobs. One way of gaining
the allegiance of the men is to show that the B.L.F., notwithstanding its
deregistration, still remains a force in the building industry. By causing
disruption to the applicant's building jobs the B.L.F. is able to show the men
that it does, indeed, remain an industrial force to be reckoned with. Having
been deregistered as an industrial union, the B.L.F. has lost the right to
represent its members before industrial tribunals. No doubt, most if not all
of its members have joined other unions. In these circumstances, it is
important to the B.L.F. to demonstrate that it still has power and influence.
One way, perhaps the only way, of demonstrating this is to show the men on the
job that its representatives are above the law and can enter the applicant's
premises at will and disrupt its business. I conclude from the whole of the
evidence that it was, and remains, one of the respondents' purposes to cause
substantial loss or damage to the applicant's business.
52. Counsel for the applicant submitted an alternative argument that it is
also one of the respondents' purposes to cause a substantial lessening of
competition in the market in which the applicant carries on business:
s.45D(1)(b)(ii). I do not find it necessary to reach a conclusion upon this
submission, but I am inclined to think that if the applicant had been unable
to prove that the respondents' conduct was engaged in for the purpose referred
to in sub-para. (b)(i) of s.45D(1), it would have been unable to prove that it
was engaged in for the purpose referred to in sub-para. (ii) of that section.
53. To establish a contravention of s.45D(1) it must be shown that the
respondents' purpose is to cause substantial loss or damage, and not merely
loss or damage. I am satisfied that the respondents' conduct has, on
numerous occasions, interfered with the progress of work on the applicant's
building sites. Since the question of damages has not been exhaustively
examined, it would not be appropriate for me to express any concluded view as
to the quantum of the applicant's damages. However, as the evidence
presently stands, I am satisfied that the repeated distractions on so many
occasions of the men working on the jobs has caused substantial loss or damage
to the applicant's business. I am of the view that, having regard to the
nature of the applicant's business, the loss and damage has been, to use the
words of Deane J. in Tillmanns (supra, at p.382) "real or of substance and not
insubstantial or nominal".
54. At the time the respondents engaged in the conduct alleged against them
their conduct was likely to have the effect of causing substantial loss or
damage to the applicant. It was highly likely that the presence of B.L.F. men
on the jobs would cause interference with the work programmes and that this
would be likely to cause substantial loss or damage to the applicant's
business.
55. It was submitted by counsel for Heffernan that the evidence did not
establish that the conduct in which he engaged, considered in isolation from
the conduct of the other respondents, had or was likely to have the effect of
causing substantial damage to the applicant's business. I do not think this
is the proper approach to take when considering whether conduct offends
against s.45D(1). It is conduct "in concert with a second person" at which
the sub-section strikes. The consequences of any particular respondent's
conduct can only be fully appreciated when it is considered in conjunction
with the conduct of all the respondents with whom he has acted and is acting
in concert. It would, for example, be wrong to hold that the conduct of an
individual member of a picket line is not caught by s.45D(1) (if otherwise
within the sub-section) merely because, viewed in isolation from the conduct
of the other persons on the picket line, the individual's conduct does not
prevent access to the picketed premises.
56. For the same reason as I have given for finding that the case in trespass
against the respondent Matchett is not proved, I am of the opinion that the
case against him under the Trade Practices Act is also not established.
57. I turn now to consider the position of the Federal Union. It is now an
unincorporated association. Prior to 1985 a body bearing the name of the
first respondent was a union registered pursuant to the provisions of the
Conciliation and Arbitration Act 1904. As such, it had a corporate
character: see s.136 of the Act and Hursey's Case (supra) per Fullagar J. at
p. 52; see also, Trade Union Law in Australia, Smith & Rawson, 1985, at p.53
et seq. However, it has since been deregistered and has therefore lost its
corporate status. In my opinion, it was wrongly named as a respondent in these
proceedings: see Lloyd, The Law Relating to Unincorporated Associations,
pp.150-151 and cases there cited. At a late stage in the proceedings, an
application was made under Order 6, rule 13 of the Federal Court Rules for an
order appointing the eleventh respondents, to represent all of the members of
the unincorporated association. The rule provides, in part, as follows:
"Representation: concurrent interests
13. (1) Where numerous persons have the same
interest in any proceeding the proceeding may be
commenced, and, unless the Court otherwise orders,
continued, by or against any one or more of them as
representing all or as representing all except one
or more of them.
(2) (Appointment of representative) At any
stage of a proceeding pursuant to this rule the
Court, on the application of the applicant, may
appoint any one or more of the respondents or other
persons (as representing whom the respondents are
sued) to represent all, or all except one or more,
of those persons in the proceeding."
58. Notwithstanding the lateness of the application under the rule, I thought
it appropriate to make the order sought. A similar form of order was
considered in Taff Vale Railway Company v Amalgamated Society of Railway
Servants (1901) AC 426 where Lord Macnaghten said at p 438:
"Then, if trade unions are not above the law,
the only remaining question, as it seems to me, is
one of form. How are these bodies to be sued? I
have no doubt whatever that a trade union, whether
registered or unregistered, may be sued in a
representative action if the persons selected as
defendants be persons who, from their position, may
be taken fairly to represent the body."
And at p 439, his Lordship said:
"Mr Haldane, indeed, was bold enough to say
that if a wrong was committed by a body of persons,
acting in concert, who were too numerous to be made
defendants in an action, the person injured would
be without remedy, unless he could fasten upon the
individuals who with their own hands were actually
doing the wrong.... It seems to me that this is a
reduction to absurdity. I should be sorry to think
that the law was so powerless; and therefore it
seems to me that there would be no difficulty in
suing a trade union in a proper case if it be sued
in a representative action by persons who fairly
and properly represent it."
In the same case, Lord Lindley said at p.443:
"I have myself no doubt whatever that if the
trade union could not be sued in this case in its
registered name, some of its members (namely, its
executive committee) could be sued on behalf of
themselves and the other members of the society,
and an injunction and judgment for damages could be
obtained in a proper case in an action so framed.
Further, it is in my opinion equally plain that if
the trustees in whom the property of the society is
legally vested were added as parties, an order
could be made in the same action for the payment by
them out of the funds of the society of all damages
and costs for which the plaintiff might obtain
judgment against the trade union."
59. The Rules of the Federal and State Unions are contained in the one
document. The first part of the document contains rules relating only to the
Federal Union. Provision is made for a Federal Council composed of the
General Secretary and delegates from each Branch of the Federation (Rule
7(a)). Branches may be formed in each State or Territory (Rule 20). The
supreme control of the Federal Union is vested in the members but, subject
thereto, is exercisable on their behalf by the Federal Council which has the
general control and conduct of the members of the Federation (Rule 8(1)).
Provision is made for a Federal Management Committee (Rule 9) consisting of
the Federal President, the General Secretary, the Federal Vice-President, the
Federal Treasurer and four Trustees. The General Secretary is Norman Leslie
Gallagher. Rule 16 and 17 provide for the establishment of a Federal Fund
and for Branch Funds, but Rule 15 provides that the property of the Federation
shall consist of both the Federal Fund and the Branch Funds. Hence it would
appear that such funds as may be from time to time in the hands of the State
Union are the property of the Federal Union.
60. Branch Rule 1 provides, in part, as follows:
"Subject to the Rules and to the decisions of
Federal Council and the Federal Management
Committee, the meetings of the Branch shall have
the general control and conduct of the business of
the Branch and decisions of the meetings shall bind
all members of the Branch."
61. The officers of the Branch consist of a President, a Vice-President,
Treasurer, Secretary, two Trustees and a Guardian. The fourth and eighth
respondents are the Trustees of the State Union. Black, the third
respondent, was variously described in evidence as the New South Wales Branch
Secretary of the Federal Union and the Secretary of the State Union. He is
also a member of the Federal Council of the Federal Union and of its Federal
Management Committee.
62. Great difficulty was experienced by the applicant in obtaining evidence
as to the membership of the Unions, their Rules and Constitutions, and their
records. Supoenas served for the purpose of obtaining such documents were
ignored. The applicant sought an order that Messrs Gallagher, Black, and
Matchett be appointed under Order 6 rule 13 to represent the members of the
unincorporated association bearing the name of the first respondent. I made
the order after notice of the application had been given to those persons.
Accordingly, they were added as the eleventh respondents.
63. It was submitted by counsel for the applicant that the evidence disclosed
that the Federal and State Unions have a common purpose and that although they
are of different legal character, they are, for all practical purposes,
identical. I think this submission has substance. As I have observed, by
virtue of Branch Rule 1 the general control and conduct of the business of
the State Union is made subject to the decisions of the Federal Council and
the Federal Management Committee of the Federal Union. The salary of the
secretary of the State Union is paid by the Federal Union. The State Union
appears to occupy the same office in the Trades Hall Building as does the
Federal Union.
64. The close association between the Federal and State Unions clearly
appears from the provision made for membership in the Rules. Rule 6 is as
follows:
"6. MEMBERSHIP
(a) A candidate for membership of the Federation
shall forward or cause to be forwarded to the
Secretary of the Branch of the State or
Territory in which he resides an application,
on the form prescribed by the Federation for
that purpose, signed by such candidate, and
stating his address, and such application form
shall be witnessed and accompanied by the
Entrance Fee.
(b) Subject to Clause (c) of this Rule upon
receipt by the Branch Secretary of the
application he shall sign and date same, and
the person applying shall thereupon be deemed
to be a member of the Federation as from the
date of the receipt of such application by the
Branch Secretary, and shall be liable from
that date for payment of entrance fee,
membership fee and/or levy (subject to
exceptions hereinafter contained).
(c) Notwithstanding anything hereinbefore
contained the Branch Secretary shall have and
is hereby given the power to refer any
application for membership to the Management
Committee for consideration and decision, in
which case such person shall not become a
member until notified to that effect in
writing by the Branch Secretary.
In the case of the decision of the Management
Committee being against the admission of the
person applying such person shall have the
right to appeal to the Federal Council.
The date of such decision of the Federal
Council where favourable to the applicant,
shall be deemed to be the date of admission to
membership.
(d) Every member shall be deemed to be attached to
the Branch of the Federation established in
the State or Territory in which he resides."
65. Branch Rule 10 provides that all persons desiring to become members of a
Branch of the Federation shall be admitted in accordance with the Rules of the
Federation (Rule 6, Membership) by signing an application form ... and that
upon compliance with the foregoing provisions, a person shall be deemed to
become a member of the Federation. The effect of the Rules, as it seems to
me, is that no real distinction is made between the membership of the Branches
and of the Federation.
66. In the absence of any evidence to the contrary, I think it is reasonable
to infer that the conduct of which the applicant complains has occurred with
the knowledge, consent and authority of the Federal Council and the Federal
Management Committee of the Federal Union. To mention but one aspect of the
evidence, it is beyond belief that the conduct of Black in going onto building
sites was unknown to and disapproved by the Federal Council. If that was not
the fact, it would have been a simple matter to call evidence to disprove it:
cf. Gardner v Transport Workers' Union (1985) A.T.P.R. 40-634 at p.47, 158 per
Pincus J.
67. The law would be rendered impotent in the present case if,
notwithstanding the making of orders against all other respondents, an order
was not made binding the members of the Federal Union. There are compelling
reasons in the present case why orders should be made protecting the applicant
against illegal activity by members of the B.L.F. in all its manifestations if
the making of such orders is shown to be justified by the evidence. I think
it is.
68. The potentially serious consequences to members of the Federal Union of
findings made against the eleventh respond ents, who have been appointed to
represent them, are greatly diminished by the provisions of Order 6 rule
13(4), which provides that a judgment pronounced or an order made in a
proceeding pursuant to the rule shall be binding on all the persons as
representing whom the respondents are sued, but shall not be enforced against
any person not a party to the proceeding except with the leave of the Court.
69. Of course, there are almost certainly many members of the Federal Union
who are not named as respondents in these proceedings. But this does not
prevent the Court granting appropriate relief against them by making orders
against the representative respondents. The present case differs from cases
such as Attorney-General v Brighton (1964) VR 59 where Gowans J refused to
make an order that the members of a club, not otherwise parties to the action,
be represented by the persons comprising the committee of the club. It is
plain from what his Honour said (at p 62) in that case that the committee was
not clothed with relevant authority by the members of the club. In the
present case the effect of Rule 8 is to give the Federal Council authority to
exercise "supreme control of the Federation" on behalf of all the members of
the Federal Union. It thus has the authority which the committee did not have
in Brighton.
70. In the light of all the evidence and of the Rules I also think it is
proper to draw the inference that Black and the other B.L.F. representatives
have acted, and are acting, as agents for and with the authority of the State
Union. Since it has corporate status, the conduct engaged in by Black and the
other B.L.F. representatives is deemed to have been engaged in by the Union
itself: s.84(2).
71. The applicant is carrying out building work on a number of construction
sites other than those referred to in these reasons. These additional sites
are referred to in the schedule to the orders I propose to make. The
applicant fears that, unless restrained by orders of this Court, the
respondents will turn their attention to these sites and engage in similar
conduct in respect of them. I think this fear is justified.
72. For the reasons I have given I am of the opinion that the applicant is
entitled to relief against all but the first and eighth respondents. The
orders I make are as follows:
That the second respondent by itself its servants and
agents, and the third, fourth, fifth, sixth, seventh,
ninth and tenth respondents be permanently restrained
from entering upon the premises described in the
schedule hereto and the buildings being constructed
thereon.
That the eleventh respondents as representing all the
members of the Australian Building Construction
Employees' and Builders Labourers' Federation be
permanently restrained from entering upon the premises
described in the schedule hereto and the buildings
being constructed thereon.
That the second respondent by itself its servants and
agents and the third, fourth, fifth, sixth, seventh,
ninth and tenth respondents be permanently restrained
from engaging directly or indirectly in concert with
another person or other persons in conduct that
hinders or prevents the supply to the applicant of
building construction services by any person or
persons at any one or more of the building
construction sites described in the schedule hereto
and the buildings being constructed thereon where such
conduct is engaged in for the purposes and would have
or be likely to have the effect of causing substantial
loss or damage to the business of the applicant
contrary to the provisions of Section 45D of the Trade
Practices Act 1974.
That the eleventh respondents as representing all the
members of the Australian Building Construction
Employees' and Builders Labourers' Federation be
permanently restrained from engaging directly or
indirectly in concert with another person or other
persons in conduct that hinders or prevents the supply
to the applicant of building construction services by
any person or persons at any one or more of the
building construction sites described in the schedule
hereto and the buildings being constructed thereon
where such conduct is engaged in for the purposes and
would have or be likely to have the effect of causing
substantial loss or damage to the business of the
applicant contrary to the provisions of Section 45D of
the Trade Practices Act 1974.
That the second respondent by itself, its servants and
agents, and the third, fourth, fifth, sixth, seventh,
ninth and tenth respondents be permanently restrained
from:
(a) Aiding, abetting, counselling or procuring
any person or persons to engage in the
conduct referred to in Orders 1, 2, 3, and
4;
(b) Inducing or attempting to induce a person
or persons, whether by threat, promise or
otherwise, to engage in the aforesaid
conduct;
(c) Being in any way, either directly or
indirectly, knowingly concerned or party to
an agreement to carry out the aforesaid
conduct; or
(d) Conspiring with any other person or persons
to engage in the aforesaid conduct.
That the eleventh respondents as representing all the
members of the Australian Building Construction
Employees' and Builders Labourers' Federation be
permanently restrained from:
(a) Aiding, abetting, counselling or procuring
any person or persons to engage in the