Case: Gibbins v Australasian Meat Industry Employees' Union (1986) 12 FCR 450
Outcome: approved
Section 45E was originally introduced into the TPA by the Trade Practices (Boycotts) Amendment Act 1980 (Cth). While there are minor differences in the drafting of that section in comparison to the current s 45E, it had essentially the same objects and a similar operation: see Gibbins v Australasian Meat Industry Employees' Union (1986) 12 FCR 450 (' Gibbins' ). The original s 45E was repealed by the Industrial Relations Reform Act 1993 (Cth). In 1996, s 45E was re-enacted it its current form by the Workplace Relations and Other Legislation Amendment Act 1996 (Cth). Section 45EA was also introduced by that Act. 105 The authorities on s 45 of the TPA explain the concept of a 'contract, arrangement or understanding' as it is used in Pt IV: see Australian Competition and Consumer Commission v Leahy Petroleum Pty Ltd [2004] FCA 1678 ; (2004) 141 FCR 183 (' Leahy' ); Apco Service Stations Pty Ltd v Australian Competition and Consumer Commission [2005] ATPR 42-078 (' Apco' ); Rural Press Ltd v Australian Competition and Consumer Commission [2003] HCA 75 ; (2003) 216 CLR 53 (' Rural Press' ); Trade Practices Commission v Email Ltd (1980) 43 FLR 383 (' Email' ); and Trade Practices Commission v David Jones (Australia) Pty Ltd (1986) 13 FCR 446 (' David Jones' ). Some assistance is also to be gained from authorities that have considered s 45E in its original form: Gibbins ; see also Keith Russell Simplicity Funerals Pty Ltd v Cremation Society of Australia (ACT) Ltd (1982) 57 FCR 472. 170 My conclusion regarding the scope of the contract, arrangement or understanding between Edison and the CEPU is similar to the conclusion reached by Smithers J in Gibbins , a case concerning the original form of s 45E. In Gibbins , the second respondent ('Borthwicks'), entered into an agreement with the Australasian Meat Industry Employees' Union ('AMIEU') as a result of conciliation proceedings under the Conciliation and Arbitration Act 1904 (Cth). Essentially, the agreement provided that the Borthwicks would not 'invite or engage' carriers of livestock who were banned by the AMIEU to come onto its abattoir works to deliver stock. Smithers J observed at 467: 'It is clear that the immediate purpose of including the provisions in the agreement was, with the consent of Borthwicks, to lessen the likelihood that banned carriers would come upon the abattoir and to ensure, again with Borthwicks' consent, that if they did the stock were not to be unloaded or killed by Borthwicks' Union employees. But it went further than that. It obviously was designed to prevent Borthwicks from engaging banned carriers for carrying services.' Smithers J held that the exclusionary purpose was part of a wider understanding between the parties, at 470-471: 'It is clear that the conciliation agreement not only governs by its own strength but has given rise to an understanding of a slightly wider nature, namely by the exclusion from an invitation to come onto the works or from being engaged to come onto the works, not only of carriers who have passed the picket lines but to those who according to Union judgment have done so or have done the equivalent.' Smithers J found that the wider understanding arose out of the conciliation agreement and in connection with its implementation: at 472. 171 The CEPU submitted that the existence of an agreement or arrangement in the week of 13 August would render the subsequent heads of agreement a sham. The CEPU's submissions on this point are misguided. To adapt the words of Smithers J in Gibbins , the heads of agreement was expressed in its own terms, but it implemented a wider arrangement or understanding. In my opinion, Edison and the CEPU intended that the heads of agreement should be controlled by, and operate in accordance with, the arrangement that had been agreed upon by the parties and put into place in the week of 13 August. 172 The CEPU also argued that DJN's continued presence on site at Loy Yang B gives rise to an inference that the agreement was not intended to exclude DJN from continuing to supply services at Loy Yang B. The fact that DJN continued to perform some work on site at Loy Yang B in August and September 2001, under pre-existing contractual arrangements and as a subcontractor, does not affect my conclusion that the arrangement rendered DJN ineligible from continuing to supply services to Edison. Rather, as Burns' file note of the 9 August meeting shows, Edison implemented a process of 'grandfathering' DJN's existing contracts. 217 In Gibbins , Smithers J imposed liability on the union under s 80(1) of the TPA. His Honour found at 474 that it was 'beyond question' that the AMIEU, which was a party to a contract, arrangement or understanding which contravened s 45E, had aided, abetted, counselled and procured Borthwicks' contraventions. Then, as now, a union could not contravene s 45E as a principal.