Australian Commonwealth Shipping Board v Federated Seamen's Union of Australasia [1925] HCA 3

Australian Commonwealth Shipping Board v Federated Seamen's Union of Australasia [1925] HCA 3 - HCA 1925 case summary — Zoe

[44]

disallowed by the Court, or exercise job control to enforce manning conditions not approved by the Manning Committee provided by the Navigation Act, or appointed by the parties to deal with the manning of vessels." It is plain, therefore, that for the organization during the term of the award - which is still current - to " order, - encourage or aid any strike" is a breach of the award itself, "Strike" there is unqualified by any accompanying words or definition and must have the same meaning as it has in the Act. Consequently it includes "* the total or partial cessation of work by employees acting in combination, as a means of enforcing compliance - with demands made by them or other employees on employers and - the total or partial refusal of employees, acting in combination, to - accept work, if the refusal is unreasonable." Those being the relevant obligations of the award, it will be - convenient to state the material circumstances affecting the alleged contraventions of the Act and the breach of the award. One of the applicant's ships is called the Dilga. On 21st February this : year, at Sydney, the applicant's officers at the appropriate place, - engaged a crew for the vessel, including eleven men who in 1924 had been members of the crew of another of the applicant's ships the Fordsdale. Three of the men so engaged as trimmers for the - Dilga, namely, Brown, Rodgers and Kampen were members of the Union. They did not sign on or respond when called to do so. Two other members, - McLean and Sutherland - refused to sign on because the Fordsdale men were engaged. On 23rd February - the applicant's officers again attempted to engage men for the Dilga, asking for three able seamen. One member of the Union, Baker, declined unless the Fordsdale men were paid off. Although there were over 200 members of the Union present, none offered; but some called out "Discharge the Fordsdale men." One of the officers then called for two trimmers for the Dilga. Rodgers, - previously mentioned, asked : '' Is Campbell sailing on this vessel 2" The answer being in the affirmative, Rodgers said "I will not sign on the ship if he is a member of the crew." O'Neil, one of the - respondents to this motion, was then present and was then a vigilant officer of the Union. He said to the applicant's marine superintendent: "There are plenty of men, but it does not look as if they want

[52]

understand, intending to offer themselves for employment in one of your Line's steamers, particularly the Fordsdale. From the inception of the Line to date it has been a principle that members of the Seamen's Union only in the deck department and the stokehold and engine-room department should be signed on in those ratings. We hope that this principle will be recognized when engaging seamen for the Fordsdale. There are numbers of seamen of good character and ability seeking engagement, and any of these men will be ready to offer their services to man the Fordsdale. In view of this we trust that the principle so long recognized will be adopted by the Line in the manning of the Fordsdale. - Yours faithfully, (sgd.) William Raeburn, general secretary." Then followed a list of the names of suspended members, including Thomas Campbell and others. This meant that the General Executive of the organization in August 1924 adopted the attitude announced by Johnson in February 1924, that the Fordsdale men were to be regarded as " non- unionists" and that the members of the Union would not sail with them. It also meant that the Executive adopted in advance whatever decision the Branch might give. In October 1924 Campbell instituted proceedings in the Supreme Court of New South Wales against the organization and the Sydney Branch and against five of the present individual respondents, namely, Walsh, Fleming, Hussack, Raeburn and Johnson, claiming (infer alia) an injunction. On 31st October 1924 Harvey J. granted an interlocutory injunction whereby 'it was ordered that " the defendants and each of them their officers servants and agents be and they are and each of them is hereby restrained until the hearing of this suit or further order from continuing to assert proclaim or publish that the plaintiff is no longer a member in full standing of the defendant the Federated Seamen's Union of Australasia hereinafter called the organization or that he has been suspended from membership thereof and from interfering in any respects with the plaintifi as regards his obtaining or seeking to obtain employment in his vocation as greaser and from preventing him obtaining the same and from interfering with or preventing his enjoyment of the benefits and privileges to which the members (including the plaintiff) of the organization are entitled under the rules of the organization and from refusing to receive

[67]

organization secures rights and privileges, but it has also duties. I cannot accept the view presented on behalf of the respondents that what has happened in this case, and therefore what unless restrained is sure to happen in the future, is in nowise to be attributed to the organization. It does not follow that, because no rule can be pointed to which expressly or even impliedly says that the act of a member, or of a combined body of members, or of a branch, shall be deemed to be that of the whole organized body, the Union is absolved. Nor does it follow that, because there has been no formal resolution of the executive officers, or of the Committee of Management, or of the members in meeting assembled, the acts complained of have not had the authority, or sanction, or approval of the executive authority or the Union as a whole. Irregular acts are not likely to be regularly authorized or encouraged. Words are not always necessary to evidence authority or encouragement. Each case must depend on its own circumstances as to whether conduct, which may be either active or passive, is sufficient to prove the necessary authority or encouragement. This organization, to begin with, obtained a very valuable award. But by clause 41 it was expressly directed against a strike. When the circumstances above mentioned are viewed in succession, the number and close connection of the facts, the participation in some of them by the executive officers, the publicity of the material events, the disorganization thereby of public services, the formal and continued defence by the organization itself and some of the individual respondents in the Supreme Court of New South Wales in the Campbell suit, the open assertion that the strike was a step for the Union generally, and the attitude of the respondents in this proceeding, leave no doubt in my mind that the organization and some of the individual respondents - at all events in their official capacity - have approved and, unless restrained, will approve of the course complained of, namely, an unreasonable refusal of employment amounting to a strike.

[79]

members to apply for employment " in one of your Line's steamers particularly the Fordsdale." These words show that it is not confined to Sydney sailings, but extends to any "one" of the ships. Then the letter in effect insists, or at all events distinctly requests in no uncertain tones, that only " members of the Seamen's Union " are to be employed in " the Line " - that is, anywhere where the Line runs. '' Members," of course, excluded Campbell and the other suspended men. That being the demand, there has been a constant and definite refusal to accede to the demand. In other words, there has existed, from August 1924 to February 1925 and after, an inter-State industrial dispute. The refusals at Fremantle, Adelaide and Melbourne, as well as Sydney, to recognize Campbell and others indicate the determination of the Union as a whole to persevere in the demand. The attitude of the Union in the Supreme Court of New South Wales is again the most signal proof of intention to maintain the demand. The qualified receipt given is still further proof, and the position taken on this argument shows that down to this moment the letter of 12th August 1924 is persisted in, The refusal of the Management of the Line to give way is also clear down to this moment. The retention of the suspended men and the attitude of the Shipping Board before this Court are equally proof that the refusal persists. How can it be doubted that there was and is a demand in the nature of an ultimatum on the part of the Union made upon the Shipping Board that the suspended Fordsdale men should not be employed, and that that demand has been persistently refused? If that is not an industrial dispute (and, if it is, it necessarily extends beyond the limit of one State), then many awards have, in my opinion, been made without jurisdiction, For myself, looking at the realities, I am unable to entertain any doubt about it, and in the interests of industrial peace by arbitration I am not prepared to hold that the arbitration tribunal would not have had, and would not even now have, jwisdiction to settle the very point in contention. I need hardly say that I express no opinion whatever as to who was in the right or was in the wrong in respect of the demand or the refusal. That is not within my province. Iam concerned only with the undeniable fact that an all-Australian dispute existed and still exists between

[101]

I do not forget the two letters of 12th August 1924. These show that officers of the Committee of Management backed up the Sydney Branch in its resolution of February 1924 as to ballot for employment on the Fordsdale. The general president, two vice-presidents and the general secretary wrote to Campbell, who had taken employment on the Fordsdale without ballot, that he had been suspended from membership of the Union ; and the general secretary _ (Raeburn) sent to the general manager of the Australian Common- wealth Shipping Line, a list of the men who had been suspended from membership. In this letter with the list Raeburn referred to some of the suspended members as seeking employment on the Fordsdale, and expressed the hope that the principle of employing only members of the Union would be still adopted. This hope involved a wish that the suspended members should be excluded from employment on the Fordsdale. But this conduct of the Committee of Management and its officers does not in itself amount to ordering or encouraging or advising or inciting the members refuse to accept employment on the Dilga or elsewhere. For aught that appears, the men who refused in combination to accep employment may have taken this extreme step on their own initiative, or even against the advice of the officials of the Committee of Management. It must be difficult, often, to prove a connection between the action taken by the members and the attitude of the | Union ; but the difficulty of proof does not relieve from the necessity of proof. It may be that the proof would have been forthcomin if the applicant had not failed to cross-examine on the affidavits. As I said in the case of Metropolitan Gas Co. v. Federated Gas Employees' Industrial Union (1), it is not enough for th applicant to show even that the course taken by the Committee of Managements consistent with encouraging the strike ; in my opinil it must be shown that it is inconsistent with any other rati conclusion (R. v. Hodge (2)). Anyone who knows the want © discipline within unions in recent times, the insubordination © members and often of branches, the contempt with which self-willed members treat their own elected officials, will readily admit it is not justifiable, without specific proof, to treat the acts defaults of the members as sanctioned or encouraged by the un

[118]

and its officers, an interim injunction from the Supreme Court of New South Wales, restraining the Union and several of its officers _ from asserting that he was no longer a member of the Union, from interfering in any respect with his obtaining or seeking to obtain employment, from interfering with or preventing his enjoyment of the benefits and privileges of the members of the Union, and from refusing to receive his subscriptions. Though the Union accepted subscriptions in compliance with the order of the Court, the position of Campbell and the other Fordsdale men who had been suspended was but little improved. Another stopwork meeting of the members of the Union was held in Sydney in December 1924, and a resolution was passed that the members of the Fordsdale crew should not be allowed to work on any vessel of the Australian Commonwealth Line of Steamers for ten years. And apparently it was agreed to treat Campbell as a non-unionist and to refuse to sail with him. It is clear beyond doubt, since that date, that no members of the Seamen's Union will sail with Campbell in any ship whatever, and that no member of the Union will sail with the other Fordsdale men in any ship of the Commonwealth Line so long as the ban of ten years subsists. And this policy is enforced by the refusal of the Union men, acting in combination, to accept work if the Fordsdale men are employed. This action was but a method of compelling compliance with the demand already made upon the owners of the Shipping Line by the Committee of Management of the Union. And when the owners rejected the demand - as is clear from their conduct - then an industrial dispute extending beyond the limits of any one State existed, and was within both the constitutional power of the Commonwealth and the jurisdiction of the Arbitration Court. So far from the Arbitration Court being prohibited in such a case, this Court would, as its decisions clearly show, support that Court in the exercise of its jurisdiction. Only a misunderstanding - of facts or a misapplication of law could lead to a contrary conclusion. Now, a " strike," as defined in the Arbitration Act (sec. 4), includes the total or partial refusal of employees acting in combination to _

[120]

"The facts already narrated clearly establish that the employees in _ the shipping industry, members of the Seamen's Union, acting in combination, did refuse to accept work in the Commonwealth Line of Steamers unless the Fordsdale men were excluded. If an industrial dispute extending beyond the limits of any one State exist, the Parliament of the Commonwealth has ample power to prohibit a "strike in that: dispute in any place within its jurisdiction. The ; strike, i in other words, need not be a strike extending beyond the limits of any one State, though the industrial dispute must be of _ that character. And so also the Parliament may enable the judicial : organs of the Commonwealth to restrain organizations and persons

from entering upon or committing any such strike. There would be no difficulty in the present case, however, even if the strike must be of an inter-State character, for it is clear to my mind that the tefusal to accept work is not confined to the State of New South Wales but operates throughout and in every State of Australia. It is equally clear, I think, that this refusal to accept work is unreasonable : it is simply an attempt to coerce the Commonwealth
Government and the Australian Shipping Board into compliance with the Union's demand by the refusal of work with Fordsdale men, Such conduct could not, in my opinion, be reasonable in any circumstances, and cases such as Giblan v. National Labourers' Union (1) and Sorrell v. Smith (2) suggest that it is an actionable wrong. Moreover, it is in flagrant opposition to the interim injunc- tion granted by the Supreme Court of New South Wales. It may be that the Union and some of its officers and members are in contempt of the Supreme Court, but that is a matter for that Court and does not directly concern this Court. It is quite impossible, however, to regard a refusal to work as reasonable in such cireum- stances. There has therefore been, in my opinion, a "strike" within the meaning of the award. It is unnecessary, for practical _ purposes, to determine whether there has been a strike within the
meaning of the Act. The construction placed upon sees. 6 and 64 of the Act in Metropolitan Gas Co. v. Federated Gas Employees' Industrial Union (3) may settle the question, but it need not be esolved in this case. (1) (1908) 2 K.B. 600. (2) (1923) 2 Ch. 32, (3) Ante, 449.

[125]

and the manager of the Commonwealth Government Line of

Steamers was notified of this action, and it was in substance demanded that these men should be treated as non-unionists and refused work. These were acts within the capacity of the organization, and it cannot escape responsibility for them by suggesting that they were not regularly done or that the procedure set forth in the rules of the organization was not strictly followed (ef. County of Gloucester Bank v. Rudry Merthyr Steam and House Coal Colliery Co. (1) ). Moreover, the acts show how the organization conducted or carried on its affairs, and reveal a clear intent to punish the Fordsdale men for disobedience of the ballot resolution. Further, Casey, a former acting-secretary of the Sydney Branch, and Manning, a former official of the Sydney Branch and a member who acted as chairman of the meeting of members in Sydney in February 1925, have allowed the truth to peep out in an affidavit filed on behalf of the Union. They swear that they do not take any active part in the management or conduct of the affairs of the said organization. '* The business and policy of the Union is laid down by the members in meetings assembled at the monthly stopwork meetings." When Campbell, one of the Fordsdale men, attacked the resolution suspending him. it was promptly justified by the organization. And, when the interim injunction was obtained, the resolution of December 1924 was immediately passed, at another stopwork meeting - that the disobedient members of the Fordsdale crew should not be allowed to work on any vessel of the Commonwealth Line of Steamers for ten years, and, apparently, that Campbell should be treated as a non-unionist. Johnson, the assistant- secretary of the Sydney Branch, was, according to the affidavit of Ernest Terence Short, very active in support of this resolution and in _ advising members of the Union how to act upon it. And we find the members of the Union acting strictly in support of the resolution and refusing to accept employment with the Fordsdale men.

[128]

duty of the executive officers of the Union to exercise general supervision over the affairs of the Union (r. 51), and of the general president to direct its operations, and, between meetings of the Union, to take immediate steps to give effect " to all resolutions of the members of the Union in any meetings of the Union" (r, 52). Now, a valuable ship was laid up because of the actions of a large number of members of the Union, and the trouble was likely to extend to other ships of the same Line, with a probable loss of employment and of wages to many members. Yet the Committee of Management, which was so active in disqualifying the Fordsdale men for disobedience of the ballot resolution, was suddenly struck with paralysis when it was its duty to speak and act decisively in relation to the resolution of the second stopwork meeting banning the Fordsdale men and refusing to accept work with them. It is not pretended that the Committee of Management did not know the facts or that it has ever disowned or expressed disapproval of the resolution of the stopwork meeting or of the action of the members of the Union in refusing work. Inaction on the part of the Committee of Management indicated to members of the Union who refused to accept employment that their action was countenanced by, and had the approval and support of, that Committee. Express approval or encouragement would have been dangerous, for the Arbitration Court might deprive the Union of its award and it might be otherwise penalized. Hence silence was advisable, and it was hoped that Justice would be so blind that she could not see through the scheme. For myself, I have little doubt that the Committee of Management and .various branch officers of the Union, particularly Johnson, organized the strike and have always approved, encouraged and supported it. It is quite impossible in the circumstances of this case to accept the assertion of Walsh, the general president, and of Raeburn, the general secretary, that neither the executive nor they themselves as individuals have encouraged the strike.

At a glance

Court

Decision date

Before

Source

Judgment (142 paragraphs)

Cited By (1)