Roberts, J.T. v. Murlar Pty Ltd & Ors [1986] FCA 358

Roberts, J.T. v. Murlar Pty Ltd & Ors [1986] FCA 358

The applicant's case fails under s.45E(1), pars. (b) and (c) of the Trade Practices Act 1974, as there was no proscribed condition imposed on the supply or acquisition of services. The relevant arrangement's purpose is assessed objectively, but no condition outside the employment contract or custom was established. In any event, the statutory definition of 'services' excludes performance of work under a contract of service, and the applicant did not identify other protected services affected by the arrangement. Section 45E is valid under the corporations power (s.51(xx)), but is not breached here.

Parties
Applicant: John Thomas Roberts; First Respondent: Murlar Pty. Limited; Second Respondent: The Building Worker's Industrial Union of Australia; Third Respondent: Mario Alberici; Fourth Respondent: Lew Zivanovic
Jurisdiction
Australia
Judgment Date
22 August 1986
Procedural Posture
Application for Declaration, Injunction and Damages / Final Judgment
Outcome
Application dismissed with costs.
Legal Topics
Arrangement Under S.45 E Trade Practices Act, Corporations Power, Union Membership and Employment, Injunctions Under Trade Practices Act
Trade Practices Constitutional Law Employment Law Arrangement Under S.45 E Trade Practices Act Corporations Power Union Membership and Employment Injunctions Under Trade Practices Act

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Parties

John Thomas Roberts

Applicant

Murlar Pty. Limited

First Respondent

The Building Worker's Industrial Union of Australia

Second Respondent

Mario Alberici

Third Respondent

Lew Zivanovic

Fourth Respondent

Procedural Posture

Application for Declaration, Injunction and Damages / Final Judgment

Legal Issues

  1. 1 Whether s.45E of the Trade Practices Act 1974 is valid under s.51(xx) of the Constitution
  2. 2 Whether an arrangement existed between employer and union proscribed by s.45E
  3. 3 Whether the requirement for union membership was a prohibited condition as to the supply or acquisition of services under s.45E

Ratio Decidendi

The applicant's case fails under s.45E(1), pars. (b) and (c) of the Trade Practices Act 1974, as there was no proscribed condition imposed on the supply or acquisition of services. The relevant arrangement's purpose is assessed objectively, but no condition outside the employment contract or custom was established. In any event, the statutory definition of 'services' excludes performance of work under a contract of service, and the applicant did not identify other protected services affected by the arrangement. Section 45E is valid under the corporations power (s.51(xx)), but is not breached here.

Court Disposition

Application dismissed with costs.

Orders

  • The application be dismissed.
  • The applicant pay the respondents' costs of and incidental to the proceedings to be taxed.