Australian Boot Trade Employees' Federation v The Commonwealth

Australian Boot Trade Employees' Federation v The Commonwealth - [1954] HCA 9 - HCA 1954 case summary — Zoe

[6]

The first sub-section of s. 78 sets out in five paragraphs, lettered from (a) to (e), the conduct which it prohibits. The paragraphs are preceded by the prohibition which enumerates the persons prohibited and states a condition, on which the prohibition depends, applicable to all the paragraphs that follow. The persons are an officer, servant or agent of an organization or a member of the committee of an organization or branch of an organization. By definition "organization" means organization registered in pursuance of the Act: s. 4. The condition stated is expressed by the words "during the currency of an award". It is to be noted, and it is an important matter, that nothing is said about any connection between the organization and the award. As will be seen each of the paragraphs that follow introduces "the award" as an element in the definition of the conduct it forbids. But the prohibition applies to an officer, servant, agent or committeeman of an organization or branch although it is not a party to the award to which the provision refers. Paragraph (a) then proceeds to make punishable certain acts of the officer servant or agent or committeeman concerning the course which may be taken with reference to employment or work by "a member of an organization which is bound by the award". Here again it need not be the same organization as that of the officer servant or agent or committeeman, although of course it may be. It is made punishable for any of those persons to advise, encourage or incite the member or to prevent or hinder him from (i) entering into a written agreement; (ii) accepting employment; or (iii) offering for work, or working, in accordance with the award or with an employer who is bound by the award. What is meant by this formula? Must the advice, the encouragement, the incitement, the prevention or the hindrance be directed to the fact that the agreement, the employment or the work will be "in accordance with the award" or will be "with an employer who is bound by the award" as the case may be? Or is it enough to advise, encourage or incite the member to refrain from, or to prevent or hinder him from, entering into the agreement or accepting the employment or offering for the work or working, if it turns out that the agreement, employment or work was or would have been in accordance with the award or with an employer bound by the award? The former seems the better interpretation. It means that the ground or reason of the advice, encouragement, incitement, prevention or hindrance must be that the agreement, employment or work was in accordance with the award or with an employer bound by the award as the case may be. But what does "in accordance with the award" mean? Does it mean in compliance with or in obedience to the award? If so the expression can apply only where the award requires that a man enter into an agreement, requires that he accept employment or requires that he offer for work or that he work. That seems an unlikely intention. "In accordance with" usually means "in harmony with, in conformity with, in agreement with", and that seems to be the meaning in par. (a). Before passing from this paragraph it should be noticed that the alternative "or with an employer who is bound by the award" would be unnecessary except to cover cases where the agreement, the employment or the work was governed by no clause in the award so that the agreement, employment or work could not be said to be "in accordance with the award". Stated in another way which perhaps is more precisely in conformity with the interpretation adopted above, it would be unnecessary except to cover cases where it was not because the agreement, employment or work was in accordance with the award that the advice, &c., was given against entering into the relation in question, but because the employer, even although the award was silent as to the particular agreement, employment or work, was nevertheless an employer bound by the award. It may be a question whether a provision made for cases of such a description is sufficiently within the reasoning upon which the constitutional validity of the substance of s. 78 rests. The two ensuing paragraphs, viz., pars. (b) and (c), consist of simple provisions based on advice, encouragement and incitement not to comply with an award and prevention and hindrance from complying with it. The validity of these paragraphs could not be and was not contested.

[9]

The effect of sub-s. (1) is qualified by sub-s. (3) which provides an affirmative defence to a charge of offending against the section. Sub-section (3) provides that in a prosecution for a contravention of the section it is a defence to prove that there were reasonable grounds for the conduct charged, being grounds (a) unrelated to the terms and conditions of employment prescribed by the award; or (b) arising out of a failure or proposed failure by an employer to observe the award. The words "being grounds" introduce a qualification, or two alternative qualifications, of the words "reasonable grounds". It is not enough that the grounds were reasonable grounds. As well as being reasonable they must be grounds which also are of one or other of the two descriptions contained in pars. (a) and (b). No standard or standpoint to judge what is reasonableness is supplied. Presumably what is meant is that when the conduct charged is considered with reference to the respective interests of the three parties concerned and their mutual relations, viz., the organization, the employer and the member of the organization bound by the award, the grounds must appear reasonable in the circumstances. But then, further, the grounds must be unrelated to the terms and conditions of the award or if they are so related they must arise from some failure to observe the award on the part of the employer, actual or proposed. The manner in which the sub-section is framed seems to concede that there may be advice, incitement, encouragement, prevention or hindrance with respect to the matters described in sub-s. (1) based on grounds which are unrelated to the terms and conditions of employment prescribed by the award but which nevertheless are not reasonable grounds. If the defence afforded by sub-s. (3) had rested simply on proof that the grounds of the advice, &c., were not related to the award, it might have been considered tantamount to confining the section to incitements to conduct directed against the award. It would then have become harder to dispute the connection of the section with conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State. But as it is, the forms of conduct which sub-s. (1) seizes upon as elements of the offence are not confined to cases where they have no relation to the terms and conditions of an award. It covers cases where there is no such relation but the grounds of the conduct are not reasonable. It is hardly necessary to say that to confine the conduct of which complaint may be made to cases where the grounds are unreasonable, leaves untouched the question whether it falls under the legislative power with respect to conciliation and arbitration, &c., and what is incidental thereto. But, even so, there is not enough support for the contention that the provisions which from the substance of s. 78 are not incidental to the subject of conciliation and arbitration for the settlement of inter-State industrial disputes and so are ultra vires.

[16]

Section 78 appears to me to be sufficiently supported by very much the same basis of constitutional power. That basis comprises, as has been seen, two elements, viz., the part which industrial organizations play in the system and the importance of protecting the arbitral settlement of disputes from defeat, impairment or circumvention, in other words of ensuring the practical efficacy of awards. These elements combine to support the substantial validity of s. 78. It is true that it is not the organization itself but the officer, servant or agent or committeeman of an organization or its branch that is made the object of the prohibitions it expresses. But that is because, in the view of the legislation, the positions they occupy give them an authority and an influence in the industrial sphere likely to make their advice, encouragement or incitement specially effective and give them an opportunity not possessed by others for preventing or hindering the action of individuals in relation to employment and work. At the same time their position is conceived to carry a particular responsibility in the system because it is through them that the organization must speak and act and perhaps decide. It is convenient here to make a reservation. The word "agent" is capable of a very wide application. "No word is more commonly and constantly abused than the word "agent". A person may be spoken of as an "agent", and no doubt in the popular sense of the word may properly be said to be an "agent", although when it is attempted to suggest that he is an "agent" under such circumstances as create the legal obligations attaching to agency that use of the word is only misleading"; per Lord Herschell, Kennedy v. De Trafford [1] . Perhaps the word "agent" is used in s. 78 (1) to mean a person authorized to act on behalf of the organization and acting within the scope of that authority when he advises, encourages, incites, &c. If so the word may not go too far. But all I desire to say about it is that for the purpose of this case stated I do not feel called upon either to construe or to decide the validity of so much of sub-s. (1) as depends upon the word "agent". It seems evident that even if the word "agent" could have no valid operation, it would be treated as severable from the rest of the sub-section.

[19]

But dealing with sub-s. (1) (a) generally I can see no sufficient reason for denying to the provision the character of a law incidental to conciliation and arbitration for the prevention and settlement of inter-State industrial disputes. The substance of the provision is that even though each member of an organization may decide as he likes whether or not he will enter into an agreement, accept employment, offer for work or work in accordance with an award, he is not to be subjected to the advice, encouragement or incitement not to do so of an officer or committeeman of his own or any other registered organization and perhaps of a servant or agent of such an organization. Once it is seen that constitutionally, as incidental to the subject matter of s. 51 (xxxv.), the legislature may provide against any impairment of the operation and practical efficacy of awards by officials of registered organizations using the opportunity their positions give them of influencing individuals bound by an award in the course they may take industrially, then there appears no prima-facie reason why sub-s. (1) (a) should not be regarded as addressed to this purpose and as not going beyond it in any essential respect. The fact that it deals with parties individually in the manner already described does not carry it beyond or outside the purpose. For if the provision dealt only with advice, incitement or encouragement to men collectively it would be likely to fail in its object. But many possible examples of acts or conduct on the part of officials were suggested which it was said fell within not only the letter but the true legal meaning of s. 78 (1) (a) and yet were quite outside the reasoning on which the validity of the provision is supported. Many of these examples are placed outside the application of s. 78 (1) (a) by the construction which I think it should receive so that it covers only cases where the ground or reason of the advice, encouragement, incitement, prevention or hindrance is that the agreement employment or work is in accordance with the award. Many others are met by the fact that they would fall under sub-s. (3), that is, unless it were found wrongly as a fact in the particular case that the grounds were not reasonable. Examples of advice to a member to accept employment with one employer rather than another, the employment in both cases being in accordance with the award, are not I think within par. (a) and it does not matter if the grounds of the advice may be considered to be related to the terms and conditions of the award because the employer preferred gives more in pay or conditions than the award prescribes. It is said that advice to a man not to work or accept given employment because his personal circumstances make it disadvantageous or prejudicial to him could come within s. 78 (1) (a). It is difficult, however, to imagine such a case which would do so if the advice is given bona fide in his interest.

[20]

It is perhaps impossible to say that no combination of circumstances will come within s. 78 (1) (a) (as it is construed in the earlier part of this judgment) which is not excluded by sub-s. (3) and yet is outside the scope of the legislative power. But such cases if they occur may well be found to be relieved from the operation of the sub-section as a result of the application of s. 15A of the Acts Interpretation Act 1901-1950. Of the validity of pars. (b) and (c) there is no question. The "member" referred to in par. (d) must be a member of an organization bound by the award and therefore bound himself. The award must apply to the work. The advice to him, the encouragement or the incitement, must be to use "go slow" methods and so retard, obstruct or limit the progress of work. To do this may well have been considered by the legislature to mean that practically the intended operation of the award is defeated. The connection with the legislative power is perhaps less evident in par. (e) because the purpose of restricting or reducing work below what is recognized as fair and normal does not appear necessarily to be the basis of the advice, &c. Paragraph (e) refers in terms rather to the result. But again the member advised, &c., must be bound by the award and the award must apply to the work. Then the tenor of the advice, &c., must be the desertion of a custom or the adoption of a practice which would result in the limitation of output or production or a tendency thereto. I think that it means that the advice, encouragement or incitement, or perhaps I should say the adviser, encourager or inciter, must contemplate this result. To desert a custom or adopt a practice involves something systematic. It all spells a detraction from the practical operation of the award and on the whole I think it was competent to the legislature to adopt the provision as a means of preventing officials of an organization contributing to the indirect impairment of the settlement made of the dispute.

[41]

In the course of the hearing it has become clear that s. 78 is by no means free from difficulties of construction. Naturally, the plaintiffs have sought at every point to attribute to the section as wide an operation as possible, in order to show that it reaches beyond the limits of legislative power, while the defendants have contended for a substantially narrower interpretation. In the event of a prosecution a reversal of roles might be expected, and the meaning of the section could be decided in the normal course of the judicial process of determining whether and how an enactment applies to a person actually and not hypothetically concerned, by reason of ascertained and not supposititious facts. To interpret a statute in the air ought, I think, to be regarded as a course not to be adopted without some positive justification. As the Court remarked in Carter v. Potato Marketing Board [3] : "It is seldom, if ever, desirable to decide any question of constitutional validity in abstracto and independently of the facts" [4] . Undoubtedly cases can arise, and in the past they have arisen from time to time, in which the course of resolving questions of validity in anticipation of events, prima-facie unsatisfactory though it is, appears to be desirable because the circumstances provide reasons in its favour which outweigh the objections to it. But I do not find it possible to take that view in this case. The plaintiff's submission that a reason for making a declaration as to validity should be found in the fact that otherwise persons interested will have to suffer prosecution before they can have the construction and validity of s. 78 decided is a submission to which, in my opinion, no countenance should be given. It appears to me highly desirable that exegesis of the section and pronouncement as to the validity of its several provisions should await an occasion or occasions when the Court can grapple with specific problems concerning it in relation to situations which have actually arisen.

[49]

This point was discussed during the course of the argument and we were referred to a number of cases in which declaratory decrees have been made. It is true that there have been a number of such cases but, so far as I can see, it is equally true that declaratory decrees have been made only in suits where it was clear that there was a substantial and immediate interference with a plaintiff's rights. We were referred, among others, to the case of Bank of New South Wales v. The Commonwealth [1] , but in that case a declaratory decree and consequential relief by way of injunctions was sought by the plaintiff banks to prevent an admitted threatened and imminent seizure and consequent complete loss of their respective businesses. The same broad proposition is true of the circumstances in which a declaratory decree was made in the case of Federal Council of The British Medical Association in Australia v. The Commonwealth [2] . In that case the questions involved were raised on demurrer and it was admitted on the pleadings that the defendant Commonwealth "threatened and intended to prevent and hinder the plaintiff doctors from and in practising and carrying on their professions and to hinder them in the proper medicinal treatment of their patients" by the enforcement of the provisions of the Pharmaceutical Benefits Act 1947-1949 Cth. and the regulations made thereunder. That very substantial interference with the practices of the plaintiff doctors was the direct and immediate effect of the legislation was apparent and that the allegation was well founded was borne out by the view of the majority of the Court that the Act imposed a form of civil conscription. Crouch v. The Commonwealth [3] to which we were also referred, is a further illustration of the type of case in which the Court thought it proper to make a declaratory decree. Again, in that case, it was apparent and admitted on the pleadings that the immediate effect of the legislation was to prevent the plaintiff from carrying on his business. There have been many cases of this type, but I am unaware of any case where the mere possibility or risk of future interference with a plaintiff's rights has been recognized as an appropriate basis for the exercise of the jurisdiction to make a declaratory decree. That is, undoubtedly, a form of relief which may be granted or withheld at the discretion of the court and in my view it should not be granted in such a case. The discretion to make such a decree clearly ought not to be exercised where the rights of parties are not involved and where, accordingly, the question is of academic interest only. The condition necessary for the exercise of this discretion, though satisfied, where rights are immediately and substantially threatened is not satisfied where the plaintiff's apprehension rests merely on a possibility or risk that unlawful interference with his rights may occur at some future time. This case, I think, falls into the latter category. Indeed the vital dispute between the parties is as to the meaning and effect of s. 78. Counsel for the defendants was not concerned to justify the section on the interpretation ascribed to it by counsel for the plaintiff whilst the attack of the latter on the section would be deprived of a very great deal of its substance if the construction advanced for the defendants be correct. But considering, as I do, that the meaning and operation of the section is not nearly as wide as that for which the plaintiffs contended, I am of the opinion that this is not a case for the making of a declaratory decree.

At a glance

Court

Decision date

Before

Source

Judgment (51 paragraphs)

Parties