Burwood Cinema Limited v Australian Theatrical and Amusement Employees' Association [1925] HCA 7

Burwood Cinema Limited v Australian Theatrical and Amusement Employees' Association [1925] HCA 7 - HCA 1925 case summary — Zoe

[73]

whatever can be a party to an " industrial dispute" with an organization of employees, or whether by simply refusing to employ a single unionist he can, so far as his industrial operations are concerned, entirely exclude the Federal power. It is obvious that if he can maintain the latter position the means do not exist anywhere in Australia of preventing or adequately remedying an admitted evil of the first magnitude - the disruption of industry beyond the limits of a State. If the Commonwealth tribunal, in making awards, is compelled to exclude all employers declining to employ unionists, and thereby to leave them free from Federal arbitration as to wages, hours and other conditions of labour, a formidable obstacle exists to awarding terms which are just to the actual parties and to the public, without giving the employers who discriminate against unionists an unfair advantage over their competitors. That in itself must produce inequalities and naturally cause dissatisfaction and instability, and so contribute materially to the disturbance of industrial peace. It is evident that State laws can never provide a sufficient remedy for such a case. Even if no Federal award were made in relation to an inter-State dispute, no State law - as has been frequently pointed out from this Bench (see, for instance, the Builders' Labourers' Case (1) ) - can deal with an industrial inter-State dispute as an entity, because no State law can operate beyond the State. The divergent State regulations of industry, so far from adjusting national necessities of industries that spread over the continent, accentuate inequalities and militate in a very practical way against that commercial freedom of inter-State trade which the Constitution broadly declares. Where a Federal award has dealt in part with the dispute, the discordance is still more striking. It is therefore apparent that the main question we are called upon to determine vitally affects not merely the present state of Australian relations but also their evolutionary development.

[84]

to be noted that only three years after Holyman's Case (1) was decided the point was directly raised, and decided by a single Justice in favour of the jurisdiction. In 1917 Higgins J. so held in Australian Workers' Union v. Pastoralists' Federal Council (2), and again in 1919 in Australian Timber Workers' Union v. John Sharp & Sons Lid. (3). An opportunity was given in both cases for obtaining the opinion of the Full Court, but was declined. It is apparent that even then Holyman's Case was not regarded as adefinite and final interpretation of the law on the present point ; it was not even cited. On the other hand, eight years have now passed since the first clear and direct decision was given, and that in favour of the jurisdiction ; and five years have passed since the second. The Arbitration Court. no doubt, rightly pursued the earlier decision; but we are now, as the Full Bench of the High Court, confronted with the question which of the two lines of judicial decision is the right one to follow. Upon an independent consideration of the Constitution there can be no real doubt that its words are wide enough to include the present case. The term "industrial disputes'? cannot by any possibility be limited to disputes between persons standing in the actual present contractual relation of employer and employee. Such a limited construction would in effect exclude demarcation disputes, which are substantially between different classes of employees, and would exclude all disputes by organizations, which ex natura rerum can never be employees. It is no answer to say that an organization could represent its members for the purpose of litigating the dispute, for that would still exclude the organization as a party to the dispute before litigation, and would exclude as principals all present members of the organization who were not actually employed by the respondents and would further exclude all future members of the organization. In the case of an organization of employers, the doctrine would similarly exclude employers. And, to be consistent, the doctrine based on the notion that an employer cannot be in dispute except with his own employees would as to each employer exclude all employees of other employers at the time of the dispute, even though they were members of the organization and afterwards entered the service of the first mentioned employer.

[94]

co-operating in a given industry with reference to the conditions of their co-operation. " Co-operation" in the industry is not from the standpoint of the Constitution restricted to actual contractual relations. Every employer that enters the competitive field of the industry is co-operating to carry it on, in the broader sense in which the people of the Commonwealth are interested. That sense is national service and supply, the interruption of which is the evil dealt with in pl. xxxv. So also is every employee a co-operator in the same sense, for his labour is not to be looked on as a mere commodity, as if he were a machine, animate like the horse or inanimate like a steam-engine. The nexus of all the co-operators is the industry itself, irrespective of how its ownership or its operative arrangements are subdivided. If we confine our attention for the moment to disputes between employers and employed, we have to visualize the disputants respectively as portions of groups representing capital and labour. "Employer" and "employee" are terms which denote, not individuals contracting with each other whose industrial relations arise out of and are limited by their specific contracts, but membership of a group with which the individual has indentified himself in relation to a given industry. The concept has grown out of the necessity for collective bargaining and collective action, involving organization more or less formal and more or less complete. Long before 1900 the identification of the individual with the group was thoroughly established. In 1892 in Dr. Garran's Report on New South Wales it was stated, that "the federation of labour and the counter-federation of employers is the characteristic feature of the labour question in the present epoch." Without such identification there never can be effective action to meet the difficulties of modern industrial life. Without troubling about a mass of intermediate opinion, I may at once quote one paragraph from the unanimous interim report, dated 8th March 1917, of the Reconstruction Committee on Joint Standing Industrial Councils presented to Mr. Lloyd George when Prime Minister (Cd. 8606). That Committee was under the presidency of the Right Honourable J. H. Whitley M.P., and it included many other eminent and representative men. Par. 23 is as follows : - * It may be desirable to state here our considered opinion that an essential condition of

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Judgment (175 paragraphs)