Caledonian Collieries Limited v Australasian Coal and Shale Employees' Federation (No 1) [1930] HCA 1

Held, by Gavan Duffy, Rich, Starke and Dion JJ. : - (1) The words " extend- ing beyond the limits of any one State" as applied to a dispute mean that the dispute is one "existing in two or more States " or, in other words, " covering Australian territory comprised within two or more States" (Holyman's Case (1914) 18 C.L.R. 273, at pp. 285 et seq). (2) To constitute an industrial dispute there must be disagreement between people or groups of people who stand in some industrial relation upon some matter which affects or arises out of the relationship, Such a disagreement may cause a strike, a lock-out and disturbance and dislocation of industry, but these are the consequences of the industrial dispute and not the industrial dispute itself, which lies in the disagreement. Upon this conception of an industrial dispute, it cannot

H.C. or A. extend beyond the limits of any one State unless in each of two or more States, 1930. at one time, the disagreement exists between people or groups who stand in some a industrial relation.

CoLLierrEes An industrial dispute existed in New South Wales between the proprietors

: of the northern collieries in New South Wales, who sought a reduction of wages,

% AUSTRAL- and members of the miners' organization. The coal from the northern collieries

astan Coat in New South Wales was of such a quality that its selling price was necessarily

pear, a factor in determining the maximum price at which coal produced in Queens- FEDERA- jand and at Wonthaggi in Victoria could be sold, anda reduction of wages in the aaa northern collieries of New South Wales would, therefore, be likely to Iead to a

reduction or attempted reduction of wages in the mines in Victoria and Queensland. In response to a telegram from the secretary of the employees' organization in New South Wales the men at Wonthaggi ceased work on 17th December and did not resume on the following day, but were ready to resume on 20th December. In Queensland the men at one mine stopped work on 17th December and at two others on 19th December. On 19th December Judge Beeby made an interim award.

Held, by Gavan Duffy, Rich, Starke and Dixon JJ. (Isaacs J. dissenting), upon the facts, that the dispute did not extend actually into Victoria or Queens- land because there was no disagreement between the mine-owners in either of those States and their men and its extension was not threatened, impending or probable because no question about wages was likely to arise between and owners in Queensland or Victoria unless and until the mines resumed in New South Wales at a reduced cost of production, which would mean the settlement of the dispute in New South Wales; and, therefore, that the interim award made on 19th December was invalid.

Held, by the whole Court, that the Legislature has not attempted to confer upon the Court of Conciliation and Arbitration judicial power conclusively to determine the matter upon which its jurisdiction depends.

Held, by Gavan Duffy, Rich, Starke and Dixon JJ., that upon proceedings under sec. 214 and in prohibition sec. 31 of the Commonwealth Conciliation and Arbitration Act 1904-1928 does not operate to give validity to an award made without jurisdiction,

SumonsEs under sec. 214a of the Commonwealth Conciliation and Arbitration Act 1904-1928 and Rules Nisi for Prohibition.

On 19th December 1929 His Honor Judge Beeby made an interim award under sec. 38 (6) of the Commonwealth Conciliation and Arbitration Act 1904-1928 by which he ordered and prescribed "that by way of interim award only and without prejudice to the parties on the full hearing of the dispute, the hewing rates and conditions of employment of coal-miners and other workmen now _

or hereafter employed in the production of coal shall be those prevailing immediately prior to 2nd March 1929." This award was

expressed to operate from 20th December 1929 until 31st January Carepoxtan

1930, or until further order, and to bind His Majesty the King in right of the State of New South Wales, eight proprietors of collieries in the northern coalfields of New South Wales, and an organization of which they were members called the Northern Collieries Association, and to bind them as to the employment of members of four industrial organizations of employees. The collieries of the proprietors bound by the award had been closed since 2nd March 1929, and no members of the organizations of employees entitled to the benefit of the award were employed by the Government of New South Wales, which had begun to work a colliery on 16th December 1929. The Attorney-General for New South Wales and the colliery proprietors which it purported to bind, on 23rd and 21st December 1929 respec- tively issued summonses under sec. 214a of the Commonwealth Conciliation and Arbitration Act 1904-1928 and applied for writs of prohibition. A summons under sec. 214a taken out by the colliery proprietors raised substantially similar questions to those raised by the summons taken out by the Attorney-General for New South Wales. The rules nisi for prohibition were obtained on behalf of the colliery proprietors and on behalf of the Attorney- General for New South Wales, and raised similar questions to those asked under the summonses. The summons under sec. 21aa of the Commonwealth Conciliation and Arbitration Act 1904- 1928 taken out by the Attorney-General for New South Wales asked for a decision substantially of the following questions : (1) Whether the alleged industrial dispute in relation to which the interim award purported to have been made by Judge Beeby on 19th December 1929 extended beyond the limits of one State or then was threatened or impending or probable as an industrial dispute extending beyond the limits of any one State within the

meaning of the Commonwealth Conciliation and Arbitration Act'

1904-1928 ; (2) whether his Honor had any jurisdiction to make or promulgate the said interim award; (3) whether the said interim award was bad in law and without the powers conferred by the Commonwealth of Australia Constitution; (4) whether

H.C. or A. the said interim award could be validly made when the only employer nL parties to the said proceedings before his Honor were employers Catevontan whose industrial operations were wholly within the State of New ae South Wales; (5) whether the said interim award could be 'Avsenar, Validly made when it did not purport to affect or bind any employers apres Coan other than those within the State of New South Wales; (6) Emrtoyers' whether before making such award his Honor should have taken pane into consideration the probable economic effects of the award in eau: relation to the community in general or the probable economic effect thereof upon the industry or industries concerned, and whether the award is bad in law in that he did not take such matters into consideration; (7) whether an order of reference is valid which does not specify what dispute is referred into Court; (8) whether sec. 38 (b) of the Commonwealth Conciliation and Arbitration Act 1904-1928 is ultra vires in so far as it permits an interim award to be made; (9) whether an interim award is invalid as not having been made by arbitration when an opportunity to be heard has not been given to the persons affected; (10) whether an interim award is invalid as not having been made by arbitration if the persons to be affected are not given proper or sufficient opportunity to present their case; (11) whether the Government of New South Wales is bound by the said interim award inasmuch as the said Government did not at any relevant time employ any members

The amended summonses and the motions were heard by Rich J., who heard evidence as to the nature and extent of the dispute and then, under the provisions of sec. 18 of the Judiciary Act, directed the whole matter, including all objections as to evidence or otherwise, to be argued before the Full Court.

The Government of New South Wales commenced coal-mining on 16th December, and on the same day the general secretary of the Coal and Shale Employees' Federation sent a telegram to the secretary of the branch at Wonthaggi in the State of Victoria : - "Member killed others wounded by police at Rothbury stop Wonthaggi to-morrow without fail send me urgent wire in the morning that Wonthaggi has stopped." The men at Wonthaggi

ceased work on 17th December and did not resume on the following

day. They were ready to resume on the day after the award, 20th H.C. or A. December 1929. In Queensland the men at one mine stopped work on 10 17th December and at two others on 19th December.

Robert Menzies K.C. (with him J. A. Ferguson), for the Caledonian a (Golliaries Ltd. and the exten colhery, gjaatavin Abcam, Ave

extend beyond New South Wales. The stoppages in Victoria and © Queensland were in the nature of a sympathetic strike. The Arbitration Court can neither arbitrate nor conciliate until there = - - - is an actual dispute. If that be wrong, the doing of either is conditioned upon definite proof of a threatened, impending or probable dispute. The same facts must be proved to invoke the conciliation as the arbitration powers of the Court. There must be dissatisfaction existing in two States, a demand in each State which can be granted by the employers in such State (Federated Clothing Trades of the Commonwealth of Australia v. Archer (1) ). There was no lock-out on 2nd March as there was then no award of the Arbitration Court. Here there was (1) no sufficient evidence of an actual industrial dispute extending beyond the limits of any one State; (2) no sufficient evidence of a threatened or impending or probable industrial dispute so extending; (3) no constitutional power to provide for the making of an interim award, that is, that sec. 38 (b) of the Act is in part invalid to the extent that it deals with interim awards ; further, (4) an interim award cannot be made

without giving the persons affected a proper opportunity to be heard, and no such opportunity was given in this case; and (5) the certificate of the Registrar under sec. 19 (a) of the Act and the order of reference by Judge Beeby were invalid as not specifying the dispute, either in relation to the parties or the subject matter. (Dealing with the first two propositions together, counsel referred to Australian Boot Trade Employees' Federation v. Whybrow & Co. (2); Merchant Service Guild of Australasia v. Newcastle and Hunter River Steamship Co. [No. 1] (3); Metropolitan Coal Co. of Sydney v. Australian Coal and Shale Employees' Federation (4); Federated Clothing Trades of the Commonwealth of Australia vy. Archer (5) ;

(1) (1919) 27 C.L.R. 207. (3) (1913) 16 C.L.R. 591, at pp. 633, 634. (2) (1910) 11 G.L.R. 311. 5. (5) (1919) 27

H.C. or A. Clyde Engineering Co. v. Cowburn (1); H. V. McKay Pty. Ltd. v.

Ria Hunt (2).] Unless there are found in Victoria demands made upon the Canevon1an employee in Victoria by the employer in Victoria of a kind which CormresTFS it is within the power in fact of the other party to concede, unless

'Avstnar. those demands are in relation to the same subject matter, or unless asran Coat those demands are the same or strictly related to the demands

Emptoyers' made in New South Wales, and, finally, unless those demands are ee persisted in so as to indicate the probability of an industrial dispute (Asien ih in Victoria, there cannot be a dispute extending to Victoria either actual or threatened (Whybrow's Case (3); The King v. Common-

wealth Court of Conciliation and Arbitration; Ex parte Brisbane Tramways Co. and Municipal Tramways Trust, Adelaide [No. 2]

(4); Lhe King v. Commonwealth Court of Conciliation and Arbitra-

tion; Ex parte Engineers &c. (State) Conciliation Committee (5) ;

Archer's Case (6); The King v. Commonwealth Court of Conciliation

and Arbitration and the President thereof and Australian Builders" Labourers' Federation ; Ex parte G. P. Jones and W. Cooper & Sons

(7); Federated Felt Hatting Employees Union of Australasia v.

Denton Hat Mills Ltd. (8); The King v. Commonwealth Court of Conciliation and Arbitration and Merchant Service Guild of Australasia ;

Ex parte Allan Taylor & Co. and Gulf Steamship Co. and William

Holyman & Sons Ltd. (9); Australian Workers' Union v. Pastoralists'

Federal Council (10); Metropolitan Coal Co. of Sydney v. Australian

Coal and Shale Employees' Federation (11)). As to the remaining

three points, the certificate and the order of reference are invalid

as an exercise of the power in sec. 19 of the Act. The certificate

does not indicate whether the industrial dispute is existing or threatened or impending. If it implies an existing inter-State

dispute, that is rebutted by the evidence. Nor does the order

define the dispute. There was no log indicating the subject matter

or the parties in this case (The King v. Hibble; Ex parte Broken

(3) (1910) 11 . 311, at pp. 317, (8) (1914) 18 C.LR. 88, at p. 93. 323, 340. (9) (1912) 15 C.L.R. 586, at p. 609. (4) (1914) 19 . 43, at p. 163. (10) (1917) 23 C.L.R. 22, at p. 28.

(5) (1926) 38 , at p. 572, (11) (1917) 24 CLR. 27 3 (12) (1921) 29 C.L.R. 290, at p. 304.

(Srarke J. referred to Federated Engine-Drivers' and Firemen's Association of Australasia v. Broken Hill Pty. Co. (1).]

The interim order is also too indefinite (Federated Engine-Drivers' and Firemen's Association of Australasia v. Broken Hill Pty. Co. (2) ). Sec. 38 (6) of the Act is ultra vires. By sec. 38 (b) Parliament has purported to authorize the Court to make an award which will be a source of industrial rights and obligations as between the parties, and not in settlement of the dispute at all, which is beyond the scope of Parliament. The same reasoning applies to this section as to the common rule (see Australian Boot Trade Employees' Federa- tion v. Whybrow & Co. (3) ). The interim award was made without giving persons to be affected by it an opportunity of being heard in relation to it, and the proceedings violated the ordinary rules of natural justice, and so were not by way of arbitration (Whybrow's Case (4); Sydney Corporation v. Harris (5); Weinberger v. Inglis (6); The King v. North; Ex parte Oakey (7) ).

Clive Teece K.C. (with him W. Gee), for the State of New South Wales. There was no evidence of the existence of an actual or probable inter-State dispute. The interim award indicates that the only dispute that Judge Beeby purported to deal with was the actual dispute then existing in New South Wales. That is the dispute which he referred into Court, and that is the only dispute which is before the Court on this application. No miners employed by the New South Wales Government were members of the Coal and Shale Employees' Federation, and there is no evidence that the Govern- ment employed any members of any union which was made a party to the award; consequently there can be no dispute in respect of which an award can be made binding on the New South Wales Government. The area of a dispute cannot be enlarged by adding a party who was nota disputant (West Australian Timber Workers' Case (8) ). The Government of New South Wales was at no time a party to the dispute which exists between the various unions. No dispute exists as to the employment of free labour by any of the employers.

(5) (1912) 14.€ at p. 284, (6) (1919) A.C. (3) (1910) 11 C.LAR. 311. (7) ( 1 K.B, 491. (4) (1910) 11 C.L.R., at pp. 321, 322, (8) (1929) Unreported.

v. AusTRAL- ASIAN Coat. AND SHALE EMPLOYEES' FEDERA- TION {No. 1).

H.C. or A. The operations of the Government in working the Rothbury mine 1930. Fi? 4 "Were to maintain a supply of coal for the services of the Government, Carepontan and were governmental and not industrial. Judge Beeby did not Cuanens take into consideration the economic effect of his award, which he 'Avsrrar. Should have done under sec. 38 (6): all he was concerned with

AST COR, was the restoration of the status quo ante. The interim award is AND SHALE Emptoyers' void and made without jurisdiction as being contrary to natural F Satie foinicioe justice as both parties were not heard. Moreover, an award,

(No. 1. whether final or interim, can only be made after a hearing.

J. A. Browne K.C. (with him W. J. McKell), for the Australasian Coal and Shale Employees' Federation. There was at the material time an actual industrial dispute extending beyond the limits of New South Wales to Victoria and Queensland. The members of the miners' organization were substantially the whole of the members working in the industry which extends throughout those three States, in which States rates of wages were common to the industry. The almost certain result of a reduction of wages in New South Wales would be a reduction in the mines in Victoria and Queensland. The present claim looked at from the industrial point of view affects the industry throughout all three States. An "Inter-State dispute " is defined in Whybrow's Case (1).

[Dixon J. In The King v. President of the Commonwealth Court of Conciliation and Arbitration and the Merchant Service Guild of Australasia ; Ex parte William Holyman & Sons Ltd. (2), it is said that a dispute must exist in two States at once. There is also the Builders' Labourers' Case (3).

[Isaacs J. I stand by what I said in the Builders' Labourers" Case.

That is a case where the narrower view of an industrial dispute was definitely departed from.

[Isaacs J. The whole matter is summed up in the Builders" Labourers' Case (4).

[Srarke J. referred to Burwood Cinema Ltd. v. Australian Theatrical and Amusement Employees' Association (5).]

) (1910) 11 C.L.R., at pp. 335, 336. (3) (1914) 18 C.L.R, 224.

(L (2) (1914) 18 C.L.R. 273. (4) (1914) 18 CLR., at p. 243 (5) (1925) 35 CLR. 528.

If the facts indicated do not of themselves amount to an industrial H.C. or A.

dispute extending beyond one State, the additional facts and cireum- wos

stances in relation to the stoppages in Victoria and Queensland Carepos1ax

show that the miners in each of those States had disputes with their cea cai

own employers in each of those States. There were not three separate id

Avsrrat- disputes in the three States, but one dispute against reduction of fern Coe

AND SHALE wages. If there was no dispute actually extending beyond New Emrroyens' South Wales, there is abundant evidence that an industrial dispute es aa

was threatened, impending or probable in Queensland and Victoria and actually existing in New South Wales. This Court has never decided that an impending or threatened dispute can be dealt with only by conciliation (Federated Engine-Drivers' and Firemen's Association of Australasia v. Adelaide Chemical and Fertilizer Co. (1)). The order of reference made by Judge Beeby sufficiently described the dispute, and the question whether counsel had or had not enough time to present their arguments cannot be dealt with under sec. 21a.

Beatt K.C. (with him E. Miller), for the Commonwealth interven- ing. (1) The Arbitration Court had jurisdiction, in exercise of the judicial power, to determine for itself the question of the existence of an industrial dispute. (2) If that be so, the prohibition application must necessarily fail, because so far as the question of the existence of an industrial dispute is concerned, the question is res judicata for the Court. It also follows that, if this is right, for the purposes of sec, 21a the decision of the Arbitration Court that a dispute existed or was threatened on 19th December is a decision which binds this Court as to whether a dispute existed on 21st December. (3) Tn any case sec. 31 compels this Court to decide that the award now being questioned cannot be declared void in these proceedings even on prohibition. The effect of sec. 31 is that although the High Court still retains its jurisdiction, it is jurisdiction in the appropriate cases of prohibition, namely, where there has been an excess of jurisdiction. Sec. 31 prevents parties in the Arbitration Court who are bound by an award from challenging that award even though it is outside the power conferred by the statute. The

H.C, or A. object of the power conferred by sec. 51 (xxxv.) of the Constitution 1930. A : t RESPONDENT.

[No. 2.] H.C. or A. Industrial Arbitration - Industrial dispute - Dispute in one State - Employers 1930. requiring reduction of wages - Log served in that and other States claiming increase

• in wages - Genuineness of dispute - Whether service of log sufficient to create Mernourne, - _inter-State dispute - The Constitution (63 & 64 Vict. c. 12), sec. 51 (XXXv.) - Feb. 17-19; Commonwealth Conciliation and Arbitration Act 1904-1928 (No. 13 of 1904 - Mar, 3. No. 18 of 1928), sec. 21a.

Gavan Dirty, 'The Commonwealth Court of Conciliation and Arbitration has not jurisdiction afichs. Starke over an alleged industrial dispute extending beyond the limits of any one

State unless it is real and genuine; and the question whether it is real and genuine, upon proceedings in prohibition, is to be determined by the High Court of Australia on its own independent view of the evidence.