Case: Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Corke Instrument Engineering Australia Pty Ltd (2005) 223 ALR 480
Outcome: considered
There is little judicial consideration of the current form of ss 45E and 45EA: cf Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Corke Instrument Engineering Australia Pty Ltd (2005) 223 ALR 480 ( 'Corke' ). There is, however, considerable authority in relation to phrases that occur in s 45E and in other provisions of Pt IV of the TPA. Those authorities are helpful in construing s 45E in a way that gives a consistent meaning to phrases that are used elsewhere in the TPA: see Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 ; (1998) 194 CLR 355 at 381-382 [69] - [71] . 180 In closing submissions, senior counsel for the CEPU appeared to present an alternative argument that the second person must be 'in contemplation' of the parties at the time of making the agreement. He relied on Corke , where Finkelstein J refused to grant an interlocutory injunction in relation to an agreement that allegedly contravened s 45E. In my opinion, Corke does not provide any support for the argument. The provision in question in Corke obliged one of the respondents, Corke Instrument Engineering (Aust) Pty Ltd ('Corke'), to negotiate a specific site agreement with the union for each construction project, and provided that the site agreement must be agreed before work commences on the project. His Honour observed that it was entirely by chance that the deed containing the provision was made after Corke had entered into a particular supply agreement. His Honour said that the purpose for the inclusion of the provision in the deed was no different from the purpose for its inclusion in an earlier certified agreement and it was not included for the purpose of interfering with the supply of services from Corke. In this context, his Honour observed that it was inherently unlikely that the plant owner who contracted with Corke for its services was even in the contemplation of the CEPU or Corke when the certified agreement was negotiated: at 484 [14]. The present case is very different. The parties clearly had in contemplation that the provision would prevent or hinder a defined class of electrical contractors from performing work at Loy Yang B. 181 In any event, I am satisfied on the balance of probabilities that the parties knew that DJN, in particular, would be prevented from supplying services to Edison under the arrangement. Nabulsi gave evidence that he had discussions with Mooney over the years about the possibility of DJN signing an EBA with the CEPU. Burns gave evidence that from time to time he and Mooney discussed which contractors were being engaged by Edison to carry out particular work at Loy Yang B, and whether those contractors had an EBA with the CEPU. The evidence clearly establishes that Mooney was in close discussion with Sutherland and Burns during the period between 13 August and 23 August 2001. I infer from this evidence that the CEPU was aware that DJN performed work at Loy Yang B, that it did not have an EBA with the CEPU, and that the provision would exclude DJN from working at Loy Yang B if it did not enter into an EBA with the CEPU. 182 There was some debate in the course of argument as to whether the purpose of the provision, as alleged by the ACCC, would fall within para (a) or para (b) of s 45E(3). The ACCC relied on both paragraphs. In my opinion, the purpose of the provision that I have found to exist falls within the scope of both paras (a) and (b). It is therefore unnecessary for me to resolve the question of which paragraph applies.