Caledonian Collieries Ltd v Australasian Coal and Shale Employees' Federation (No 2) [1930] HCA 2

Caledonian Collieries Ltd v Australasian Coal and Shale Employees' Federation (No 2) [1930] HCA 2 - HCA 1930 case summary — Zoe

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real dissatisfaction amongst members of the organization. In the present case Judge Beeby made the interim award without reference to the parties. His Honor treated this interim order as one which the Court might make of its own motion, and based it upon the practice of the Court. No arbitrator or Judge of the Arbitration Court is entitled to make an award, whether it be an interim award or a permanent award, without hearing the parties to such an extent as is reasonable under the circumstances on the question of whether an award should be made and as to what that award should contain if made; as no previous award bound the parties the interim award. affected the civil rights of the present applicants and they should have been heard (Sydney Corporation v. Harris (1); Weinberger v. Inglis (2); The King v. North; Ex parte Oakey (3); Australian Boot Trade Employees' Federation v. Whybrow & Co. (4); In re Brook and Delcomyn (5); Board of Education v. Rice (6); The King v. Huntingdon Confirming Authority; Ex parte George and Stamford Hotels Ltd. (7) ). [Counsel also referred to Federated Engine-Drivers' and Firemen's Association of Australasia vy. Al Amalgamated (8).] The evidence is that the log was posted on 24th December and demanded a reply by 1st January. The shortness of the date shows that the demand made in the log was not a real demand for conditions upon which some real discussion between the parties might have occurred, but was gone through merely as a matter of form in order to bring the matter before the Court. The facts are that the New South Wales Government opened the Rothbury mine on 16th December 1929 ; the compulsory conference came together on 17th December; it was adjourned after being part heard until 18th; on 18th the matter was referred into Court by Judge Beeby, and on 19th Judge Beeby made an interim award. At the conference before Judge Beeby and in the discussion which preceded the making of his interim award on 19th, objections were taken to the jurisdiction by representatives of the employers. On 20th the Council of the organization, which was then sitting and had commenced its sittings on 17th December, authorized the issue

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Caledonian Collieries Ltd. v. Australasian Coal and Shale Employees' Carwvontan Federation [No. 1] (1) the majority of the Court said, in substance, ba that little more is required to establish the fact of dispute aa. than the service of a log and its denial by employers over the 4s!aN Coan requisite area. (2) It is irrelevant on that issue to inquire into the ©: question of how the dispute originated (Builders' Labourers' Case (2)). (3) The reasonableness or otherwise of the claims made is not a matter for consideration on the issue as to whether the dispute existed. (4) The demand itself made the first step in the dispute (Merchant Service Guild of Australasia v. Newcastle and Hunter River Steamship Co. [No. 2] (3) ). There need be no prior complaint about conditions: the demand made the first step. (5) The Constitution and the Arbitration Act permit of the creation of a dispute for the purpose of having it settled by the Court (Tramways Case [No. 2] (4)). (6) It is sufficient for the jurisdiction of the Arbitration Court to attach if an expressed disagreement over the necessary area is proved. That is always treated as prima facie evidence of the dispute, and if it appears that the demand, in the case of a demand, of the organization is bona fide made for the purpose of the advancement or defence of the interests of the organization and its members, that is what all the tests which have been applied to the reality of the dispute amount to. That is, is the organization in asking for what it does ask, doing it for the genuine purpose of advancing the trade interests of its members and the organization itself ? And there is a genuine dispute existing in this case. (7) Jurisdiction of the Arbitration Court is established if on the proper date there is the probability of a dispute coming into existence ; that is the date when the Arbitration Court assumed jurisdiction. (8) Because of the jurisdiction attaching to the probability as well as to the existence of a dispute, it is now recognized that if the organization or the employees recognize that they will or may gain an advantage by disputing, they will probably dispute (Builders' Labourers' Case). (9) The conditions asked for in

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whether it is of long standing or a creation of yesterday, whether there was prior dissatisfaction or not, and whether the defendants. expect their claims to be yielded or granted in full or not, so long only as the demandants now insist on their claims and in some way seek to enforce them, even if that way be through the legitimate avenue of the Arbitration Court, which is the constitutional substitute for force. All those and similar considerations are non-essentials, for, whether they are present or absent, the public loss in case of stoppage is just the same. In my opinion we should abandon any attempt to confine industrial disputes by applying technical limita- tions in order to test reality. Such disputes are hard facts of life, they are not rigid in character, they are of constantly changing" form and methods of origin to meet advancing circumstances, and they are easily recognizable as facts - too often by their effects - whenever and however they arise. Judge-made limitations of reality are just as efiective to control the existence and extent of industrial disputes as was King Canute's command to stay the waves of the ocean. If only the simple principle, so clearly enunciated by the Privy Council, be applied to the present case - the touchstone of public welfare - and the relevant legislation interpreted with that as a guide, we should at once escape from this labyrinth of confusion. There is, in this connection, a matter which appears to permeate the argument for the applicants and to give it a false colour. It is the artificial doctrine of the " reality " of an industrial dispute. That a dispute must be "real" or " genuine" is in one sense undoubted. We know there are sham- fights, mere simulacra of battles, where everything is in show, and no one intends to strike a blow or fire a bullet. It is possible that industrial demands may be made and refusals given merely for parade, everyone aware that nothing serious is intended and that all is a pretence and a form and never to be pursued. But the "reality "' or " genuineness " of that dispute, like that of any other legal relation between citizens, must be determined by the reasonable effect upon each that is to be attributed by what is actually said and done by the other in the given circumstances. According to- accepted methods in British Courts, it is not to be attained by a. system of thought-reading to the disregard of actual acts and words,.

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in prohibition the fact must be determined by this Court on its own independent view of the evidence." Nothing in the Burwood Cinema Case (1), or in the unreported case of the Australian Workers' Union (1926 No. 5) which we were referred to since the argument and have examined, conflicts in any way with this proposition, which is, indeed, only a restatement of the view long held and frequently acted upon by this Court that "in all cases the Court is bound to be satisfied of the existence and reality of the dispute " (per Isaacs J. in the Builders' Labourers' Case (2)). In this case there was and is a very real and grave dispute between the parties to these proceedings, but, as we have held in our previous judgment, it was, on and up to 19th December, the date of Judge Beeby's first award, confined to New South Wales. The matter of the dispute was whether wages should be reduced on the northern coalfields. It was generally believed that if, as a result of such a reduction of wages, the price of coal upon that field fell, wages must be reduced upon all other fields. The question we have to decide is, in substance, whether the formulation, five days later, of a paper demand for increased wages, shorter hours and more advantageous conditions and its refusal could and did operate upon the cireum- stances which we have attempted briefly to summarize to bring into being a real and genuine dispute, or a real and genuine extension of the existing dispute. We think that it is quite clear that the Council revived and remodelled the demands of 1927 for the purpose of attempting to confer upon Judge Beeby authority to deal with the existing dispute upon the northern coalfields of New South Wales. The rejection by the men at the meetings between 4th and 10th December of the terms which their leaders had put before them, and, as the President of the Federation said, '' recommended as the best possible terms which could be secured from the proprietors for a resumption of work," the opening of Rothbury by the New South Wales Government with non-union labour, and the excite- ment and violence displayed on the fields on 16th December, had combined to make the intervention of the Federal Court welcome. The resolution of 13th December to extend and intensify the dispute beyond the limit of this State shows that this intervention was

At a glance

Court

Decision date

Before

Source

Judgment (206 paragraphs)

Cited By (1)