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51 The Australian, 21.12.88.

52 The Australian, 5.1.89.

dispute was not supported by union officials in the first place, and that in future lodge- led strikes would be more strongly discouraged.54

In September, 1989, Australia's domestic airlines sent letters to 1700 pilots, warning them of serious consequences unless they honoured their contracts of employment. Two days later the pilots resigned en masse after the companies began issuing termination notices and writs for damages. The Pilots' Federation has maintained throughout that the writs served against them, and further threatened writs,55 were their sole reason for resigning. That being the case, here at least is one example of the negative side of common law writs in dispute resolution. Arguably, the pilots may have been back at work at a relatively early stage had they not been pushed into resigning. I emphasise

may because there is some reason to believe that the airlines had a hidden agenda based on the deregulation of the airline industry in 1990. The mass resignations of the pilots could aid in the rationalisation and streamlining of the industry, and as such, the airlines' actions may be regarded as provocative. Whatever the airlines' intentions were, there is every reason to believe that had the pilots agreed to negotiate during the first week of the dispute, a satisfactory settlement would have been reached.56 In any case, had they not felt coerced into resigning, there is some doubt that the dispute would have been so enduring. The history of the relationship between the Federation and the airlines, particularly Ansett, is a major factor here, as are the personalities and the attitudes of the individuals involved.

The above examples are not intended to suggest that the issue of common law writs have become an everyday practice in industrial relations. In each of these cases, the number of workers involved was high as were the potential damages payouts. Nor do I want to imply that common law in relation to breach of contract, intimidation or conspiracy relates only to industrial matters. The pertinence that it has in relation to industrial matters is that it does not grant immunity to trade unions, their officials or members. Furthermore, while actions have generally been confined to one of these three torts, the whole range of common law is available, when applicable. For example, a defamation action was brought against the National Secretary of the Australian Railways Union

54 M. Lee, Miners' Federation, Interview, 30.10.89.

55 Prior to their resignations, the tourism industries in Australia and the United States of America had publicly announced their intentions of pursuing class actions against the pilots. 56 This was the view of Keith Marks (Interview, Melbourne, 8.11.89.) who was the legal representative of the tourism industry and Grant Bellchamber, (I n t e r v i e wMelbourne, 9.11.89.) a research officer from the ACTU.

It is far more usual for interim or interlocutory injunctions to be sought by employers to restrain strike action. In most cases they are obeyed by unions although interim

injunctions are often granted ex parte, that is, "without notice of the application being given to the party sought to be restrained, in conditions of urgency where failure of the Court to act might involve irreparable injury".58 Nevertheless, the willingness of courts to grant an injunction will normally depend on the processes of conciliation and arbitration having been observed. Typically, an employer and union would have had their dispute heard in the industrial tribunal; a recommendation or order made to the effect that industrial action should cease; and the non-compliance by the union with such a recommendation or order. Usually, it is only when disputing parties step outside the industrial processes that common law actions occur. This has been the state of play to date; however, following a recent decision in the pilots’ case which will be discussed later, that situation may be subject to change in the future.

In April 1988, after protracted legal proceedings, the Federated Confectioners’ Association (FCA) in an out-of-court settlement paid damages of $175,000 to Dollar Sweets Pty. Ltd. It was the first action that had been mounted at common law since the early 1970s.59

The union had entered into a dispute with the Dollar Sweets company over a reduction in working hours which only half the company’s employees supported. A picket line was set up to prevent deliveries to the company's factory, a tactic which resulted in violence and threats against some of the drivers. Following notification of a dispute, the ACAC recommended that the picket be lifted. When the FAC failed to comply, an injunction restraining the picketing was obtained by Dollar Sweets from the Victorian Supreme Court. Murphy J found that the plaintiff had established an arguable case that the defendants were committing the torts of interference with the plaintiff's commercial contracts, intimidation (in so far as their threats had successfully turned drivers away) and conspiracy.60