For The Labourer is Worthy of His Hire

Section 45D of the Trade Practices Act and Primary Boycotts:
A Case Study in the Meat Industry

Richard Tracey

It will surprise none of those present to know that the meat industry has provided the setting in recent years for many applications under s.45D of the Trade Practices Act. Indeed, a review of the reported cases under s.45D since its introduction in 1977 shows that the AMIEU has been involved in more s.45D cases than any other Union.

Section 45D is generally spoken of as a provision which prohibits secondary boycotts. The typical case is one in which, in an effort to bring pressure upon the true target of the Union concerned, industrial action is taken against a third party. Certainly the Swanson Committee's Report, which was the genesis of s.45D, recommended the introduction of such a provision to combat the secondary boycott: see Report, paras.l0.11 to 10.22. What is sometimes overlooked is that s.45D has the potential to proscribe certain primary boycotts, that is strike or other industrial action taken directly against the target employer. The relationship between s.45D and primary boycotts was explored in recent litigation between the Meat & Allied Trades Federation and the AMIEU: see AMIEU v. MATFA (1991) 104 ALR 199.

The Factual Background

In February 1990 the ACTU and the Commonwealth Government entered into what became known as the "Accord Mark VI". On 14 September 1990 the AMIEU wrote to MATFA seeking MATFA's agreement to various wage claims of the kind contemplated by the Accord. The demand was rejected. On 12 October 1990 the Federal Council of the AMIEU produced a brochure which was circulated to members. The brochure contained the statement that:

"Federal Executive has determined that, in the event of the failure of the Meat & Allied Trades Federation to agree to the Union claims at the meeting between the parties on Thursday 18 October, the Federal Executive will organise a national campaign of industrial action against all employers who are members of MATFA and covered by Federal and/or State Awards." Three days later MATFA advised the AMIEU that the claim had been rejected and notified a dispute to the Industrial Relations Commission. On 18 October 1990 AMIEU delegates at a number of Queensland abattoirs advised their employers that there would be a stoppage on the following day. Union organisers advised some delegates that there was to be a national stoppage on 19 October and there was Ä at export abattoirs throughout Victoria, Queensland and New South Wales.

In the following week various Union publications supported what was described as "the national campaign" and the delegates at one Victorian abattoir advised their employer that they had received instructions from the AMIEU head office to tell AMIEU members that there would be a strike on 26 and 29 October. There was. The pattern was repeated in other abattoirs in Queensland.

On 2 November 1990 the AMIEU's Queensland Branch published a newsletter which referred to a "co-ordinated and determined industrial campaign". On 7 November the Federal Executive resolved that "if negotiations with MATFA concerning Accord Mark VI do not recommence immediately, `direct negotiations will result between employees and their employer in pursuit of the claim'". On 12 November the Victorian Secretary of the AMIEU, who was then acting as Federal Secretary, wrote to all State Secretaries referring to a strategy ....for a national stoppage" and to allowing "those who are prepared to take action [to] take it". Two days later he wrote again, this time saying that he was "more convinced than ever that the call for industrial action is essential".

On 15 November 1990 delegates at a number of Queensland abattoirs advised their employers that there would be stoppages of work on 16 and 19 November 1990. In some cases reference was made to directions from the Union office and in one case a copy of the motion to be put to a meeting of members in support of strike action was faxed from the Union office to the employer's office! The foreshadowed stoppages occurred.

The effect of the stoppages was to disrupt the export trade of each of the meatworks concerned.

Similar conduct continued into December 1990, at which point injunctions were sought against the AMIEU to prevent it from inciting and co-ordinating further industrial disruption of the kind which had already occurred. Rather than deal with the matter on an interlocutory basis, the trial Judge, Mr. Justice Jenkinson, chose to arrange a speedy hearing of the application for a permanent injunction and the matter came on before him in February 1991. As a result of these procedural arrangements, the case became one of the few s.45D cases to pass beyond the interlocutory stage.

MATFA relied on two particular provisions of s.45D. They were:

a. Section. 45D(1)(b), which prohibits a person (the AMIEU) from engaging in conduct together with another person (AMIEU members) where that conduct hinders or prevents goods or services from being acquired by a third person (a customer of the meatworks) from a corporation (the meatworks) provided that the corporation is not the employer of the first person (the AMIEU) and that the conduct is likely to have the effect of causing substantial loss or damage to the corporation.
b. Section 45D(1A), which prohibits two or more persons from engaging in conduct that hinders or prevents another person from engaging in overseas or interstate trade or commerce, where the person hindered is not the employer of the person engaging in the conduct.

The AMIEU relied on the defence provided for in s.45D(3) which excuses contraventions of sub-sections (1) and (lA) where the conduct is engaged in by a Union and employees who have a common employer and the purpose of the conduct is improvement of wages and conditions. The defence will not be available if additional parties are involved.

The Trial Judge's Decision

Mr Justice Jenkinson found for MATFA under both s.45D(l) and 45D(lA). Under s.45D(l) he found that the AMIEU, acting in concert with those of its members who took part in the stoppages (second persons), engaged in conduct that hindered the acquisition of goods (meat products) by the employer's customers (third persons) from the employers (fourth persons), which conduct was engaged in for the purpose, and was likely to have the effect, of causing substantial loss or damage to the business of the employers.

Under s.45D(lA) he found that the AMIEU, in concert with those of its members who took part in the stoppages (second persons), engaged in conduct for the purpose, and having or likely to have the effect, of preventing or substantially hindering the employers (third persons) from engaging in trade or commerce in meat between Australia and places outside Australia.

His Honour rejected the AMIEU's asserted defence under s.45D(3). He held that:

"The evidence justifies the affirmative finding that the [AMIEU] proposed to all its members in the abattoirs the subjects of this proceeding the making of an arrangement, and an understanding, between [AMIEU] and them that simultaneous stoppages should occur at those abattoirs on those days. The evidence that some of those employees concerned themselves only with the question whether a stoppage at the particular abattoir where they respectively worked should be held on a particular day is not inconsistent with the hypothesis that a majority of those voting at each meeting both voted for the particular stoppage and were parties to the arrangement for a number of stoppages on that day. I am not persuaded that what the [AMIEU] proposed did not gain the assent of most of those who voted on the resolution."

In other words, the proviso to s.45D(3) which requires that no persons other than the Union and employees with a common employer should be involved was not satisfied because the concerted action involved employees at a number of abattoirs.

The trial Judge granted permanent injunctions restraining the AMIEU from repeating similar conduct.

The Appeal

The AMIEU appealed to a Full Court of the Federal Court against this decision. That appeal was successful but, nonetheless, has left open the prospect that s.45D might be available to deal with primary boycotts.

The trial Judge's finding under s.45D(l)(b) was overturned as a result of a decision of the High Court which was handed down after the original decision had been made. In Devenish v. Jewell Food Stores Pty. Ltd. (1991) 172 CLR 32, the High Court had held that:

"(i) Conduct which hinders or prevents the supply of goods by a `fourth person', without more, does not amount to the hindering or preventing of acquisition of those goods from a `fourth person'

(ii) s.45D(l)(b) is not contravened merely by the circumstance that the fourth person has none of the goods which the third person wishes to acquire. That is so even if the unavailability of the goods is itself the result of conduct of the first person in concert with a second person in withholding supply of the goods to the fourth person."

This narrow view of s.45D(l)(b), when applied to the Accord Mark VI campaign in the meat industry, resulted in the conclusion that the provision had not been breached simply because the meat exporters did not have product as a result of the industrial disruption.

Of greater concern for present purposes is the way in which the Court dealt with the case as put under s.45D(lA). A majority tacitly accepted that MATFA had made out a good claim under this sub-section. However, it was held that the Union had a defence under s.45D(3). The Appeal Court was not prepared to accept that the workers at individual abattoirs, when they voted to take industrial action and did so, acted in concert with other workers at other abattoirs.

Olney, J held (at 221-222):

"True it is that preceding each stoppage there was a meeting at each of the various employers' establishments at which a resolution was adopted by the employees of the establishment to stop work. And true it is that the resolution in some cases was a standard form. This would suggest no more than that the AMIEU had an input into the events which resulted in each of the various stoppages. But there is nothing in the findings to suggest that on any occasion the decision to stop work was in any way affected by the prospect that a similar decision had been or was likely to be made at any other establishment. It may well have been expected that the employees in most, if not all, establishments would adopt a course of action favoured by the Union but this is merely one of the facts of industrial life in this country, and such an expectation falls short of the active involvement of disparate groups of employees in the affairs of each other."

French, J was more succinct. He held (at 215):

"Whatever the full scope of the term [in concert] it does not apply to groups of employees of different employers who, as the result of requests by a common Union, engage in similar conduct for their own respective purposes in response to similar issues of remuneration, conditions of employment, hours of work or working conditions."

What, then, would have provided sufficient evidence of the workers in the various sheds acting in concert with each other? Part of the answer is to be found in the judgment of Gray, J (at 211):

"In the present case, there is no evidence of any communication between employees of the different employers as to their intentions to cease work. There was some evidence that some employees at some places had heard rumours to the effect that employees at other places were going on strike, but the evidence does not establish how this information was communicated. Still less is there any evidence that any employee at one works communicated the possibility of a strike in the hope or expectation that any employee at any other works would be induced to join in. The only possibility of an arrangement or understanding arises through separate communications between AMIEU and its members who were employees at the various establishments.
There is abundant evidence of what occurred at the various meetings of employees prior to the dates on which stoppages of work occurred. Each of the meetings of employees held shortly prior to the dates on which the stoppages occurred heard a report on negotiations over the AMIEU claim and the attitude of the employer of the members present to that claim. At each such meeting there was a motion from the floor of the meeting that the employees of that employer cease work on the day or days in question. There was no evidence of any proposal to any meeting that there should be a stoppage because employees of another employer would be stopping work on a particular day. In order to accept the finding of the learned trial Judge that an arrangement or understanding existed, it is necessary to suppose that some communication was made to employees (perhaps to the majority of employees at a particular shed) to the effect that employees at another shed or other sheds were intending to take strike action on the particular days, and that this information was acted on by employees in exercising their voting power at the meetings, without being discussed at the meetings themselves. No evidence exists from which inferences could be drawn."

While one may cavil at the proposition that the abundant evidence about the AMIEU's "national campaign", the coordination of that campaign by the Federal Executive, the coincidence of dates, and so on did not provide a sufficient evidentiary base for Jenkinson J's decision, it is necessary to look to the future.

The decision leaves open the prospect that export industries can be protected from direct industrial action under s.45D if certain links can be forged between the decision making processes at the workplaces of different employers. This link might be forged in many ways. If the employees of one employer can be shown to have acted to support similar action by workers at another plant a sufficient link would be established. This acknowledgment may be found in the terms of a resolution or in the utterances of those attending a meeting. Another possibility is that an employee at one plant urges employees at another to take industrial action.

An even clearer case would arise if the Union concerned called a mass meeting of workers from different companies and obtained approval for industrial disruption at each of the plants from that meeting.

Such evidence would overcome the deficiencies identified in the MATFA case, would deny the Union concerned a defence under s.45D(3) and would admit a successful attack on a primary boycott. The employer's fundamental problem will always be the obtaining of this kind of evidence. Workers may be prepared to confide their accounts of what transpires at Union meetings to their supervisors; it is another thing altogether for them to give evidence in Court about who said what at such gatherings. It may be possible for others to hear what goes on at meetings if amplification or raised voices are used. If meetings are held on employers' premises it will be possible to identify those who attend. Contemporaneous records of events should be kept.

It may appear distasteful to some that resort must be had to this form of evidence-gathering. However, if the Federal Court insists on direct evidence to prove concerted action and is not prepared to draw inferences from facts such as those upon which MATFA relied, an employer which seeks to enforce its rights under s.45D will have no choice but to so act.

The role of the Industrial Relations Commission

In concluding this paper some passing mention should be made of the role of the Industrial Relations Commission in dealing with the industrial disputes to which I have referred. It will be remembered that throughout the period over which these events were played out the Meat Industry Inquiry was under way. It will also be remembered that the Industrial Relations Commission had declined to give effect to all of the terms of the Accord Mark VI.

Following the first round of stoppages in October, Deputy President Riordan, after hearing an account of the industrial activity, stated that the AMIEU's campaign was "not justified". On being advised some days later that further stoppages were pending the Deputy President wrote to the AMIEU stating that the Industrial Relations Commission would "regard any such stoppages very seriously". The stoppages occurred. On 30 October 1990 Deputy President Riordan stated that he was "appalled" at a further proposed stoppage and that "the whole unacceptable". Notwithstanding these utterances, further stoppages occurred. On 15 November 1990 Deputy President Riordan said that there was no possible justification for strike action" and that it was "inconceivable [that the] AMIEU would take the action". He went on to direct that no stoppages should occur. Occur they did Ä on the following day. On 19 November 1990 Commissioner Caesar said that the Industrial Relations Commission could not accept the continued "defiance" of the AMIEU. The next day further stoppages occurred. On 3 December 1990 a Full Bench of the Commission found that loss of export earnings arising from the AMIEU's conduct to that date amounted to $83 million and that the AMIEU's conduct was in breach of assurances given to the Commission. The stoppages continued. I could go on. With great reluctance and after much delay, the Commission issued certificates to allow proceedings to be brought against the AMIEU in the Federal Court. In the process there was further criticism of the Union's activities. The Union responded with personal attacks on members of the Commission. Nothing was done. The message is clear: faced with a Union which is prepared to defy the Commission, the Commission was impotent. This message must be borne in mind when suggestions are made about repealing s.45D and transferring jurisdiction over such matters to the Industrial Relations Commission.