Federated Felt Hatting Employees Union of Australasia Claimants; and Denton Hat Mills Limited [1914] HCA 20

March 11, 12, secs. 23, 38A - The Constitution (63 & 64 Vict. c. 12), sec. 51 (xxxv.). 13, 27.

On a special case stated during the hearing of a plaint in the Com

Cae Held, by Isaacs, Higgins, Gavan Duffy, Powers and Rich JJ. (Griffith C.J. Bae ee and Barton J. dissenting), that on the particular facts stated the Common-

wealth Court of Conciliation and Arbitration would be justified in finding - that there was an actual, threatened, impending or probable dispute, and proceeding to investigate the merits under sec. 23 of the Commonwealth Con- ciliation and Arbitration Act 1904-1911.

Held also, by the whole Court, that a plaint before the Commonwealth C of Conciliation and Arbitration alleging the existence of a dispute between tl parties might after the hearing of the plaint had begun be amended sec. 38a of the above Act, so as to allege in addition or as an alternative t) there was a pending, threatened or probable dispute between the parties.

Case stated by the Deputy President of the Commonwealth of Conciliation and Arbitration.

On the hearing of a plaint in the Commonwealth Court of Concilia- tion and Arbitration by the Federated Felt Hatting Employees Union

of Australasia against the Denton Hat Mills Ltd. and a number of H- ©. or A.

other employers, the Deputy President, Powers J., stated a case for the opinion of the High Court.

The material facts set out in the case are sufficiently stated in the judgments hereunder.

"1. On the facts stated in this case including those set out in the statement of facts " annexed to the case, "' is there an industrial dispute within the meaning (a) of the Constitution, (b) of the said Act (Commonwealth Conciliation and Arbitration Act 1904-1911) ?

"2. Tf there is not an actual industrial dispute on the facts stated in this case including those in the statement of facts" annexed to the case, "is there a threatened, impending or probable industrial dispute which the Court has cognizance of for the purpose of pre- vention and/or for settlement ?

"3. If there is a dispute, actual, threatened, impending or probable as to some of the prices and conditions complained of in the plaint, has the Commonwealth Court of Conciliation and Arbitration power to make an award as to

"(a) Prices in the plaint about which there has not been any dissatisfaction, disagreement or demand before the claim- ants' demand prior to the plaint, that is, as to prices paid by factories at the time the plaint was filed and since, and now asked for in the plaint ?

" (6) Conditions about which there has not been any dissatisfac- tion, disagreement or demand before the claimants' demand prior to the plaint, that is, as to conditions ob- served in the factories at the time the plaint was filed and since, and now asked for in the plaint ?

"*(e) Prices and conditions asked for in the plaint about which there was dissatisfaction amongst the employees at the time of the demand of 2nd August, but not dissatisfaction which caused any threatened, impending or probable industrial dispute at the date of such demand ?

"*(d) Prices and conditions asked for in the plaint about which there was dissatisfaction which would probably have caused an industrial dispute if not conceded by the em-

ployers when demanded and insisted upon - but no den to rectify them or any attempt to settle them by fi negotiation had been made before the claimants' demat of 2nd August 1912 because the employees were under impression that the Court could, after demand made plaint filed, by an award fix a log of prices and condi for a term of years for the whole trade, including the pric and conditions they were satisfied with ? "(e) Prices and conditions asked for in the claimants' dem before the plaint - now in the plaint, - which prices conditions the claimants admittedly seek to secure by an award of this Court for five years, not because of dissat : faction, but only for the purpose of preventing fu disputes if any attempt is made by any of the responde and insisted upon, to reduce prices or to alter conditions

"4. If there is a dispute, actual, threatened, impending or pr able, has this Court power to make an award with respect to matters claimed in" certain paragraphs "of the plaint, or any of them, and if so which ?

"5. Can the amendment referred to in par. 18 of the case be allowed by this Court ?"

The amendment referred to in question 5 was an amendn which the claimants desired to have made in the plaint so as allege that there was a pending, threatened or probable dis between the parties, either as an addition or as an alternative to the allegation in the plaint that there was an existing dispute. *

During the hearing of the case the following question was added :

"a. On the facts stated in the case and annexures, is this Cour justified in finding that there is an actual, threatened, impendin probable dispute, and in proceeding to investigate the merits und sec. 232"

Grirrirx C.J. The majority of the Court are of opinion that questions 1 to 4 as formally submitted by the learned Deputy President in this case are not questions of law within the meaning of sec. 31 (3) of the Commonwealth Conciliation and Arbitration Act, inasmuch as they are all in form hypothetical and involve assump- tions of fact. But we are all agreed that the new question 1a, which is in the form approved by the Court in the case of Merchant Service Guild v. Newcastle and Hunter River Steamship Co. Ltd. {Wo. 1] (1), may be properly answered, and I proceed to answer it.

The case raises for decision in a concrete form the proper construc- tion of the much debated provisions of sec. 51, pl. xxxv., of the Constitution, which empowers the Commonwealth Parliament to make laws with respect to conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State. This being a new power conferred upon a legislature of limited jurisdiction, which as a general rule has no authority to interfere with the domestic trade or industry of a State, it lies on the party invoking its exercise to show affirmatively that the case in which the exercise is invoked falls within the power.

The reason for conferring this power upon the Commonwealth Parliament is sufficiently obvious. While the powers of the States to regulate trade and industry and to settle disputes relating to these subjects were limited to operations carried on within their own borders, industrial operations often extended beyond those limits under such conditions that there was a substantial community of interest between the persons engaged in them in different States, and a consequent probability of disputes co-extensive with the operations, and it was thought desirable to provide for so probable a contingency.

When the apparently innocent and benevolent words of sec. 51 (xxxy.) were enacted in 1900 few, if any, persons would have expected that it would be sought to read them as equivalent to " with respect to the settlement of industrial claims jointly preferred by employers or employees engaged in industrial avocations in more than one State, and the regulation of industrial matters included in

or incidental to such claims." In the present case, as I und the facts stated, this is, in effect, the construction which the is asked to put upon the words of the Constitution, and the cla put forward by the claimants is (as I will afterwards show) nothi more than such a joint claim.

It has, indeed, for some years been practically asserted such a joint claim is sufficient to found the jurisdiction of Arbitration Court. In the present case the claim is avowedly b upon that view.

In R. v. Commonwealth Court of Conciliation and Arbitra Ex parte Allen Taylor & Co. (1) I expressed my opinion at lengt! on this point, and I do not think that I can usefully add much to what I then said. In that case I pointed out briefly that, although the term "industrial dispute" may be used and has been used in legislation in a sense wide enough to include any claim or requ

made or preferred by a single employee to his employer or vice vers yet, having regard to the fact that the general control of industrial matters is by the Constitution reserved to the States, and to governing words "extending beyond the limits of any one Sta it was plain that in pl. xxv. of sec. 51 the phrase did not bear the wider meaning.

In the Sawzmillers' Case (2) I had said by way of opinion, 1 which I now adhere judicially : -

"The dispute must be single in the sense that there must be substantial community of interest amongst the demandants a amongst those who refuse the demand.

"There must be a substantial identity of subject matter. instance, a demand for a set of conditions in State A relating to matter and another set of conditions in State B relating to anoth matter, although made by bodies of employees or employers in bo States associated for the purpose of making the demand, constit not one dispute but two disputes.

"Mere identity of branch of industry is not sufficient of to prove substantial identity of subject matter. The difference one State may be as to hours of labour, in the other as to terms of

remuneration, in the same industry. In this case there would not H- ©. or A.

"On the other hand, there might be substantial identity of Tux Ferr

subject matter although the branches of industry in connection with which it is made are not the same: For example, a demand for a reduction in the hours of labour in several distinct trades in which the employees are associated together for the purpose of enforcing that demand might be a single dispute.

"Mere verbal coincidence in demands made as regards two States does not prove identity of subject matter. The varying conditions of climate and other physical conditions found in the Commonwealth may make a demand couched in particular language in respect of one State quite different in its essence from a demand couched in the same words in respect of another.

"The term 'industrial dispute' connotes something in the nature of industrial war, existing or threatened. Sporadic differ- ences confined to small localities in two or more States, even if they possess all the other elements of substantial identity of subject matter, cannot be said to extend beyond the limits of one State merely because the parties to the differences in the several States combine in making a request in identical terms to their respective employers.

"There must be real community of action on the part of the demandants, and some community of action on the part of the parties on whom the demand is made. Such community need not be formulated in any written document, nor need the parties who are acting together be bound by any formal agreement. If it is found that large bodies of men in two or more States are in fact acting with one accord, then, if the other elements of an industrial dispute are present, an occasion arises for the exercise of the federal power in question.

"The dispute must be actually existing and actually extending beyond the limits of one State before such an occasion can arise. Mere mischief-makers cannot, therefore, by the expenditure of a few shillings in paper, ink, and postage stamps create such an occasion."

To this I only desire to add that in my opinion the power conferred on the Parliament by pl. xxxv. is not a power to constitute a board.

or tribunal, consisting of one or more persons, with autho regulate by its decisions or awards the conduct of industrial prises. Nor is it a power to transfer the control of industrial er prises to such a board or tribunal, by empowering it to acce any demands made by the employees. The authority which may conferred upon the tribunal is authority to settle industrial dis properly so called. I am not for the present purpose concerne with the distinction between actual and threatened or probab disputes.

I repeat that the dispute must be something more than a claim 1 have the conduct of an industry regulated. It must be a real di pute of such a nature as to indicate a real danger of dislocation industry if it is not settled. Unfortunately attempts have s times been made to take advantage of this provision of the Cons tion for the purpose of creating so-called disputes, not for t real purpose of preserving industrial peace but for the purpose taking the control of industry out of the hands of employers. my opinion such attempts are a fraud upon the Constitution,

the limits of any one State merely because of the identity of language in which the claims are made, or because a claim relating to the operations of the same industry carried on in two or more States is comprised in a single document. In short, the object the power is to prevent and settle real industrial disputes, and not to facilitate the creation of fictitious disputes with a view to their settlement by a Commonwealth tribunal.

For these reasons I am of opinion that pl. xxxv. cannot be con- - strued in the wide sense contended for. The real question for determination in this case is whether the claim preferred by plaint is in substance a request to the Court to settle an exii industrial dispute extending beyond the limits of any one of such a nature that it was likely, if not settled, to lead to disloe

I proceed to apply this test to the facts as appearing in the case H.C. o A.

The claimant Union was registered on 29th June 1912, having Tae Fexr

branches and members in the States of New South Wales, Victoria, and South Australia. Separate State Unions had previously existed for some years in each of those States. On or about 2nd August 1912 the claimant Union sent to all the respondents what is called a "log," that is, a schedule of wages and conditions which they claimed should govern the conditions of work and wages of members of the organization in the three States. The log contained no less than 308 specific points as to which it was claimed that the industry should be regulated. The respondents were called upon to reply within fourteen days of receipt whether they were prepared to adopt the "log" or to grant a conference with the claimant Union at which it might be discussed with a view to obtaining a settlement of the grievance of the Union members in their employ- ment on the basis of the log. No response was made to this demand, and on 26th September 1912 the plaint was filed. Before the time of delivery of the log no joint demand had been made in any form by or on behalf of the employees in the three States or any two States for any of the points demanded in the log, nor was any claim ever made on the respondents or any of them by the claimant Union, or by the State Unions, or by the employees, for the particular prices or conditions set out in the plaint until the demand of 2nd August. (Statement of facts, par. 18).

The hat mills in the three States of New South Wales, Victoria and South Australia are worked under different systems and condi- tions, even in the same State, and the conditions attached to the work in each mill affect the price to be paid. A minimum log price was asked for in order to allow that system to continue, and members of the claimant Union intend to continue to require payment of different minimum prices in different mills in excess of the log prices if they consider the conditions in the different mills warrant it (par. 5).

Most of the prices claimed in the log of prices were paid at some one of the mills at the time the plaint was filed, but at no one mill were all the prices claimed paid.

That was not possible because they worked under different con ditions and did different classes of work (par. 12). Many of the prices for piece-work claimed in the plaint are p in some of the respondents' mills, and were paid before and at th time of the claimants' demand, and, at the time the plaint was filed, without causing any dissatisfaction (par. 15). : Many of the conditions claimed in the plaint are observed in all A the respondents' mills, and were observed before and at the time of the demand of 2nd August, and at the time the plaint was filed, without causing any dissatisfaction (par 16). ' é The prices and conditions mentioned in the two preceding para- graphs were included in the plaint, not because there was dissatis- _ faction with them, but because the claimant Union wished to have them secured to the employees for a term of years by an award of the Arbitration Court, so as to prevent the possibility of dispu in future if any attempt should be made to reduce prices or alter conditions without the consent of the claimant Union (par. 17). In New South Wales there had been some dissatisfaction as to wages of assistants before the log of 2nd August 1912, but a formal - demand was not made because the claimants intended to ask the Arbitration Court to fix a log of prices and conditions (par. 32). There had been strikes in New South Wales in 1907, 1909 and 1911, and in Victoria in 1912, but the strike was in each case con- fined to one mill only. The strike in Victoria, which was at the Denton Hat Mills, arose in connection with the employment of a - non-unionist in place of a workman disabled by illness. It after- wards extended by way of sympathetic strike to other mills in - Victoria, but was settled in February 1912, when the employees in all the Victorian mills returned to work on the conditions and at the rates in force in their respective mills before the strike (par. 46), which have ever since been observed except as altered by consent (par. 84). . The officials of the Victorian Union regarded the settlement as a defeat and not satisfactory, but agreed to it, intending at the time to obtain by an award of the Arbitration Court, and not by a - wages board, as they had agreed under the terms of settlement a log of prices and conditions for a term of years, in order to prevent -

similar disputes in future and to secure the then existing prices H.C. or A.

and conditions by an award (par. 49). No claim is made in the plaint to disturb the settlement.

During this dispute delegates from the New South Wales and South Australian Unions had agreed at an inter-State conference to strike, if necessary, in support of the Victorian Union, and to abide by any settlement made by the Victorian Union. During the same dispute the delegates decided to join the Victorian Union in a Federation and to come to the Arbitration Court for a log of prices and conditions. After the dispute was settled the three Unions joined in the necessary steps to register as a Federation with a view to taking proceedings in the Arbitration Court to get a log of prices and conditions fixed by an award (pars. 51, 84).

The claims made by the Victorian Union in connection with the Denton Hat Mills strike were not the same as the claims made in the plaint (par. 53).

Before January 1912 the Victorian Union had a discussion with the employers as to the number of apprentices to be employed. The employers desired to employ 37, to be distributed among the Victorian mills. The Union refused to agree to the employment of more than 12, and the employers agreed to that number. The fact that the claimant Unions had decided to apply to the Arbitration Court for a log of prices and conditions, including the number of apprentices, was one of the reasons, if not the chief reason, for consenting to 12 apprentices. The plaint does not ask for a re- opening of this matter (pars. 56-60).

A question arose in 1911 in New South Wales with regard to the mill of the respondents C. Anderson & Co. in which at that time no members of the New South Wales Unions were employed. The question was not, however, between Anderson & Co. and their employees, but arose from a dissatisfaction existing in the minds of other employers and employees in other mills with the methods and conditions of work at Anderson's (par. 36).

In South Australia there was not when the log was presented any actual definite disagreement or local dispute, or any trouble likely in itself to cause any industrial dispute in South Australia.

An incidental dispute was only probable in South Australia at that VOL. XVIII. 2

time (1) if, and when, any real dispute should arise in Victoria 0 New South Wales, and they should be asked to strike in sympathy with their fellow unionists in the other States, or (2) if their emplo should refuse concessions granted to the New South Wales or torian employees, or (3) if the claimant Union should call for j action to secure a common log (par. 75). There had been some other sporadic differences in the States, all of which had been settled for the time being. The present proceedings in the Arbitration Court were deci upon and initiated by the claimant Union in order to obtain an mum log of prices and conditions by an award of this Court an thereby : - (a) To bring C. Anderson & Co. into line with the prices conditions in the Union mills in New South Wales an the other States ; b (b) To prevent the Union mills coming down to Anderson & Co.'s prices and conditions if they attempted todoso; (c) To remedy some prices and conditions about which employees, including assistants, pressers, trimmers binders, and apprentices had complained before the settlement of the Denton Mills strike, but which the Stat Unions after February 1912 had not attempted to s with the employers ; (d) To secure conditions and prices in force at the time demand was made and the plaint was filed, which satisfactory and as to which no request to alter them been made, in order to prevent disputes in the if any attempt should be made without the consent of tl claimant Union to alter them; and (e) To prevent possible disputes in future about matters w1 had caused differences in the past and had been

by the employers and the State Unions (par. 83). No definite unsettled disagreement caused by the refusal of definite claim made by any of the Unions or by the claimant (after the Denton Mill strike was settled) was in existence in Vi New South Wales, or South Australia at the time when the clain ants' demand was made on 2nd August 1912. Some further act by

the employees, or the employers, or both, was necessary before an H. ©. or A.

actual industrial dispute would have arisen, or any industrial dis- pute was probable. It is probable that demands would have been made if the Unions had not decided upon a plaint being filed in this Court (par. 74).

Upon these facts it appears to me (1) that there was not when the plaint was preferred by the claimants any industrial dispute extending beyond the limits of any one State in any real sense ; (2) that there was indeed no dispute at all in any State of such a nature that it was not likely to be settled within the State itself without any dislocation of or disturbance of industry ; and (3) that the plaint is in substance a mere request to the Court to lay down a code of regulations for the conduct of the industry.

As to the existence of a probable dispute the claimants seem to have made up their mind to create, sooner or later, a dispute extend- ing beyond the limits of any one State. In that sense, therefore, it is probable that such a dispute will arise. This may be predicated in any case where an industrial organization desires to have the operations of the industry regulated by the Court. But, for reasons already given, I cannot think that such a probability is sufficient to constitute a probable dispute in any sense which would bring the case within sec. 51 (xxxv.) of the Constitution.

I think, therefore, that question 1a, which I construe as asking whether there was any evidence before the learned Deputy President upon which he would be justified in a preliminary finding that there was an actual threatened impending or probable dispute and in proceeding to investigate the merits, should be answered in the negative.

Question 5 as to the power of the Court to allow the amendment mentioned should be answered in the affirmative.

Barton J. The learned Deputy President has taken a large quantity of evidence for the purpose of informing himself whether he has jurisdiction to hear and determine the claims brought before him, As he has no power to determine finally whether there is a dispute within sec. 51 (xxxv.) of the Constitution, the case stated by him includes a full statement of facts which he has found pro-

H.C. or A. visionally for the purpose of seeking the opinion of this Court

certain questions of law which he submits. But several of

judgments in previous cases (See more particularly Mere Service Guild v. Newcastle and Hunter River Steamship Co. [No. 1] (1); Merchant Service Guild v. Commonwealth Owners Association (2)). On the principles laid down in decisions the questions numbered 1, 2, 3 and 4 are such as this ought not to answer. They are all hypothetical, since ev which the Court of Arbitration has no power to make the subject positive findings cannot be taken by this Court as a statem absolute facts for the purpose of determining questions of thereon. There remain two questions, the first of which was sta by the learned Deputy President during the argument as an a ment or addendum to the special case. It stands as question and is as follows : - '' On the facts stated in the case and anne is the Court justified in finding that there is an actual, threatened impending or probable dispute, and in proceeding to investigate merits under sec. 23?" The other question is No. 5 in thes case, and is as follows : - '' Can the amendment referred to in 18 of the case be allowed by this Court ? " I will deal first with question 5. The amendment was t by the claimant Union, who asked leave of the Court to insert

pute, a statement that there was at the time of the plaint "a pe' threatened or probable dispute between the same parties." 'T think it clear that the Court has full power to make any amendment on such terms as it thinks fit under sec. 38a, and under the circumstances of the case it would be justified in such an amendment. ; Coming now to question 1a, the Bench is of opinion that one which the Court ought to answer, and so I proceed to ans T would first refer to the fact that a question very similar in was before this Court in the case of the Merchant Service Guild v. castle and Hunter River Steamship Co. Ltd. [No.1] (1). A maj

there held it answerable, and each of the Justices sitting proceeded H- ©. or A

to answer it. The question there related only to an actual and not to a threatened, impending, or probable industrial dispute, and my own answer (1) was that (wpon the assumptions of fact which the questions appeared to me to involve) "the Arbitration Court would be justi- fied in finding, but only pro hac vice and not as a finding giving it jurisdiction, that there is an actual industrial dispute, and in pro- ceeding to investigate the merits." The other Justices then sitting answered the question in the same sense.

Similar conditions apply here as to a threatened, impending, or probable industrial dispute; and the question to which I must give an answer is whether, having before him the evidence which the case and its annexures contain, and no other evidence or informa- tion, the learned Deputy President would be justified in proceeding to hear and determine the plaint itself, and if necessary to make an award upon it.

It must be borne in mind that in considering for itself such a question in the first instance, a tribunal without power positively to determine the jurisdictional facts is entitled to satisfy its mind as to its duty in any mamer that seems best to it.

The reason is that when the superior Court is called upon to deter- mine the question of jurisdiction it is not confined to, nor need it regard, the material upon which the inferior Court has refused to proceed, or has proceeded, with the hearing.

A wrongful refusal of jurisdiction will still expose it to a man- damus, and an erroneous assumption of authority will expose it to a prohibition.

Upon the material which he has submitted to this Court I do not think the learned Deputy President would be justified in proceeding to investigate the merits of the alleged actual, threatened, impending or probable dispute under sec. 23 of the Arbitration Act. I have con- sidered the material which the learned Deputy President has laid before this Court, and have compared it with the analysis which the learned Chief Justice has made in his judgment, which I have had the opportunity of reading. I think with him that the Court of Arbitration would not be justified in even provisionally taking that

material as its warrant for treating the matter as involving any kind of dispute which the Constitution or, within the Constitution, t Commonwealth Conciliation and Arbitration Act, authorizes it determine.

No claim was ever made on the respondents or any of them by claimant Union, or by the State Unions, or by the employees, the particular prices and conditions set out in the plaint until the claimants made their demand of 2nd August 1912, including a "log" _ or schedule of 308 items which it is now asserted were in disput The mills are in three States, namely, Victoria, New South W: and South Australia, and are worked under different systems conditions, not only as between State and State but inter se. minimum log price only is asked for, in order to allow that sy to continue, and members of the organization intend to continue t f require payment of different prices in different mills in excess of log prices if they consider the different conditions therein warrant their doing so. There is not any one mill at which all the p

them have been paid. Prices cannot well be uniform, since are affected by the conditions of work, and the conditions differed.

There have been strikes before the formation of the claimant Union, three of them in New South Wales in the years 1907, 190 and 1911, and one in Victoria at the beginning of 1912, known as "th e

Denton Mills strike was extended to other mills by sympathy. claims in that strike were not the same as those made in the dem of 2nd August 1912, and in the plaint of the following Septem! but between the termination of the Denton Mills strike and demand of August, there does not seem to have been anyth approaching a dispute.

The claimant Union seems to have originated in this wa' There was a separate Union in each of the three States mentione During the Denton trouble, delegates for each Union met in cor

in an inter-State Federation of the three Unions, and to come to H- C. oF A.

the federal Arbitration Court for a "log" of prices and condi- tions. The claimant Union therefore had only been in existence for a few months at the time of the filing of the plaint. In fact it was not registered under the Commonwealth Arbitration Act till 29th June 1912, and between that registration and the making of the demand covering the log, less than five weeks had passed. It is during that period of five weeks that the actual, threatened, im- pending, or probable dispute is supposed to have arisen, but I find no evidence of it unless the agreement of the three Unions to federate and proceed in the Commonwealth Arbitration Court can be said to constitute such a dispute, which seems to me the reverse of a reasonable proposition, unless we conclude that a mere resolve to approach the Court with a schedule of claims followed by a letter of demand with such a schedule can be called a dispute, and unless trouble thus created is to be held to be the subject matter of sub-sec. xxxy. of sec. 51 of the Constitution. It is true that there had been at various times sporadic differences in each of the States, all of which had been settled for the time being; but the fact that differences have existed does not seem to make them elements in a dispute after they have been settled. Also there was casual and occasional dissatisfaction in different mills upon different subjects not identified with the "log," and it was not shown that the employers knew of it.

The learned Deputy President states that " No definite unsettled disagreement caused by any definite claim (made by any of the Unions or by the claimant Union) being refused (after the Denton Mills strike was settled) was in existence in Victoria, New South Wales or South Australia at the time the claimants' demand was made in August 1912. Some further act by the employees or employers, or both was necessary before an actual industrial dispute would have arisen, or any industrial dispute was probable. It is probable that demands would have been made if the Unions had not decided upon a plaint being filed in this Court " (par. 74).

This statement seems to me to throw great light upon the origin of the present proceedings. There was nothing definite as the subject of a dispute, or a probable dispute; but the claimants

seem to have been honestly under the impression that by prefi a log providing for all the conditions and possibilities of the indu they could legitimately obtain an award which would regulate ' whole of the hat-making trade in Australia. The setting up of tribunal to regulate the conditions of industry irrespective of q tions of dispute, but with a jurisdiction co-extensive with any s of claims that can be made by employees on employers, may or may not be an entirely desirable thing. It is not for this Court to pro- nounce upon any such question. But it is as clear as can be that the Constitution does not enable the establishment of an; tribunal. The Parliament may legislate for conciliation and arbitr tion, not for the prevention and settlement of such claims, but industrial disputes of inter-State extension.

All that is possible to an arbitral tribunal constitu this provision is the prevention and settlement of industrial di as and when they arise, and I am clear that they must be dispute in substance, and not merely claims, however honestly believed it launched at the instance of employers or employees at a time of peace. I suppose there has never been a time in the history of an industry when there has not been dissatisfaction on the part of one or many employers or employees in respect of some wage, or pric or condition. Such dissatisfaction may or may not be the pre of a dispute, but it cannot be said to constitute a dispute eithe actual, impending or probable.

However morally justifiable it may be to invoke the action the Court for the entire regulation of an industry apart from dispute, that is not the office which under the Constitution can b imposed upon the Court. The adoption of such a process may b called, in a sense by no means opprobrious, an attempt to create a dispute. But it is an attempt which cannot succeed, because thi intention of the Constitution is that the Court should operate upo the pre-existing state of facts amounting to a dispute or impending dispute, and not upon some position which follows instead of pr ceding a demand which is put forward merely to open the door « the Court.

Not only can I not find that there was any industrial disput in the true sense of the words, but I cannot find as to any dis

faction that existed, that it was common, in respect of its subject H.C. or A.

matter, to any two States at once. There was no trouble which extended beyond the bounds of any one State so as to require settle- ment, if it ever became a dispute, by any other means than those which the State itself could provide.

No previous decision of the Court was specifically called in ques- tion during the argument - much less were we asked to overrule any such decision. I warmly agree with those who deplore the frequency with which the meaning of sub-sec. xxxv. of sec. 51 has come before this Court for interpretation, particularly with reference to the words " industrial disputes." But it seems to me that there is unceasing effort on the part of claimants to obtain some interpretation much looser than the connotation of those two plain English words.

Reading those words in their ordinary sense as fit subjects for federal conciliation and arbitration, it must be admitted that it could not be intended that the machinery of the federal tribunal should be invoked on account of every passing breeze of disagree- ment. The difference must surely be serious enough and persistent enough to be worthy of the pacificatory efforts of the tribunal. It could not be intended that the tribunal should be paltered with by means of merely fabricated or paper disputes, nor could it be intended that the danger against which the Constitution was pro- viding, was not the danger of a breach of the industrial peace of the community. Hence in the Sawzmillers' Case (1), and in R. v. Commonwealth Court of Conciliation and Arbitration; Ex parte Allen Taylor & Co. (2), the learned Chief Justice expressed the opinion (obiter in the first-named case, and judicially in the second) that " The term ' industrial dispute ' connotes a real and substantial difference having some element of persistency, and likely, if not adjusted, to endanger the industrial peace of the community. It must be a real and genuine dispute, not fictitious or illusory. Such a dispute is not created by a mere formal demand and formal refusal without more. . . . In considering industrial disputes we are concerned with real facts, not words or word-spinning."

(1) 8 C.L.R., 465, at p. 488. (2) 15 C.L.R., 586, at p. 594.

In the last-named case I said (1): - "That the jurisdic' must be founded on something more than a mere claim is, to mind, quite apparent. That something is not easy to define.

it must be enough to take the whole position above or beyon mere naked demand and refusal. . . . It" (ae. the disput "cannot be created by a mere paper demand." I had already (2): - * A grumbling or an agitation will not suffice: see Co v. Wade (3)"; and I say now, as I said then (4), "It is fu to be observed that there was here no discussion or controy with the employers, or any representative of theirs. There wasn correspondence in which the subjects of discontent were evolved. do not say that these things are necessary ingredients in the proof; but they go far to show that there is something more than a mere claim. And something more there must be, unless we are to sa a that a sudden and peremptory claim must either be conceded or must amount of itself and by itself to a dispute."

I have never suggested that all these things must concur every case. But I say they are of the class of facts by which t reality of a dispute is established. And neither in the shape of such circumstances nor of any others do I find the reality in this case

Before concluding, I desire, as I was not one of the Bench who heard the Sawzmillers' Case (5), to say that I entirely agree in propositions stated by the Chief Justice on that occasion, and whi he has reaffirmed in the present case. I think it necessary to this because those propositions apply with great force to the evi stated by the learned Deputy President.

Isaacs J. Question 1. - For the reasons stated by me in Mer- chant Service Guild v. Newcastle and Hunter River Steamship Ltd. [No. 1] (6), I am of opinion that it is not competent to t Court to answer the first question. at

Question 1a. - I answer this in the affirmative. For the princip guiding me in so answering, I will read what I said in the case already

(2) 15€. 586, at p. 603. 5) 8 C.L (3) (1909) A.C., 506, at p. 510. (6) 16 C.

mentioned (1). "The third question sufficiently raises a question H- ©. or A.

of law, relative to the incidental duty of the Court of Arbitration to take care not to proceed without jurisdiction. I have stated in the Federated Engine-Drivers' Case [No. 1] (2) the position as I view it, in these terms : - ' The Court may, in order to ascertain the facts as to its existence, proceed, without being open to legal challenge on that account, either by rigid adherence to the ordin- ary rules of evidence, or by accepting any information it thinks proper or convenient in the circumstances. What it has to do at the outset is to satisfy its mind that it is not overstepping the bounds which Parliament has laid down for it.'

"That Court is not bound to insist on all possibly available evidence being placed before it. Its incidental and preliminary duty does not require it to have before it, for instance, full explana- tions of the employers' acts or intention in not acceding to the demands of their employees: the Court may think, from the materials it has, that a definite refusal was probable and could be proved should the question ever be brought for legal and conclusive deter- mination before the High Court. Whether the Arbitration Court arrives at that conclusion of probability or not is entirely a question of fact for itself, and not a question of law for this Court to advise on. But it is a question of law whether that Court would be justi- fied in so concluding, and it would be so justified on any reasonable materials, admissible or not according to ordinary legal principles of evidence, so long as they conveyed that impression to its mind."

As to this question there is therefore no jurisdiction in this Court to make any pronouncement in this case as to the Constitutional meaning of the term "industrial dispute." Whatever therefore I might say as to that would be extra-judicial and of no binding effect, and consequently I say nothing on the point, but I do uot mean to suggest I have seen any reason to doubt the judicial opinions I have already expressed on appropriate occasions, particularly in R. v. Commonwealth Court of Conciliation and Arbitration ; Ex parte Allen Taylor & Co. (3), and adhered to in Merchant Service Guild y. Newcastle and Hunter River Steamship Oo. Ltd. [No. 2] (4),

(1) 16 C.L.R., 591, at pp. 631, 632. (3) 15 C.L.R., 586, at pp. 609 et seqg. (2) 12 C.L.R. 398, at p. 454. (4) 16 C.L.R., 705, at p. 712.

an opinion shared by my learned brothers Duffy and Rich Further, as decided in this case in respect of questions 1, 2, 3.a we have no power to find facts or draw inferences, I refrain fi expressing any opinion upon the facts as to the actual existence dispute in relation to this question also. i Questions 2, 3 and 4. - These stand in the same position as No and cannot be answered. Question 5. - I answer Yes.

Hicesns J. For my part, I see no sufficient reason for refusing answer the first, third and fourth questions propounded by m brother Powers. The case of the Merchant Service Guild y. Ne castle and Hunter River Steamship Co. Ltd. [No. 1] (2) is not ai authority against giving an answer, inasmuch as in the present the facts are stated as found. But I defer to the opinion of the majority of my colleagues. At the same time, the fact that th : most natural and reasonable questions cannot legally be answer demonstrates more clearly than ever the general futility of pewer to state cases contained in sec. 31 as it stands, and con me in the views which I expressed at pp. 639-643 of the M Service Guild v. Newcastle and Hunter River Steamship Co. Ltd. 1] (2), and at p. 712 of the same case [No. 2] (3).

As to question 14 - the question as amended - my answer is: Yes; the Court of Conciliation is justified in finding that there actual, threatened, impending or probable dispute and in proce to investigate the merits under sec. 23.

Looking at the form of the question, we are not asked to | a on what subjects there is a dispute. But I should be prepared hold that there is an industrial dispute on this subject : - Shall conditions set forth in the log of 2nd August 1912 be the gover conditions of the industry as between members of the Union and respondent employers? Accompanying the log was a statement behalf of the Union that it desired the wages and conditions in the log to " my Union in your employ"; and a request that the terms of log be adopted "as the governing conditions of this industry."

(1) 16 C.L.R., 705, at p. 714. 2) 16 CLR, 591. % (3) 16 C.L.R., 705.

"govern the conditions of work and wages of members of

The reports of this High Court show that a great deal of ingenuity H.-C. or A.

has been applied in considering the meaning of the plain, ordinary English words "industrial disputes." I have not usually been a party to the discussions, for they have arisen generally on applica- tions for prohibition against my action in the Court of Conciliation. But (if we leave out of consideration for the moment the limitation in the Constitution to disputes extending beyond the limits of any one State), there is surely an " industrial dispute " when employees try to persuade or induce or coerce their employers to take a certain course of action in an industrial matter and the employers resist. In this case, the employees endeavoured to get their employers to bind themselves for a term to the conditions of the log, and the employers would not. There is no need for the employees to strike, or throw the industry out of gear, in order to establish the fact of a dispute. The policy of the Act is to substitute conciliation and arbitration for strike.

Prima facie, the request made with the log sent on 2nd August is to be treated as real, genuine, and intended to be pressed by any appropriate means. But it was open to the respondents to prove the contrary, as respondents proved it in the case of the Federated Engine-Drivers &e. Association v. Caledonian Coal Co. (1). In this case, the facts which preceded the 2nd August have been elabor- ately discussed ; but the discussion has failed to show any ground for treating the request of the 2nd August as being other than real, genuine and intended to be pressed. Up to that date there was dissatisfaction ; and the dissatisfaction was all the deeper because of the defeat of the employees in Victoria (where most of the hat factories were situated), in the Denton Mills strike. But the dissatisfaction did not take the form of definite demands until 2nd August, and consequently there was no dispute until the demand. It is now established that there need. not be any expressions of dissatisfaction communicated to the employers before the demand made of the 2nd August (Merchant Service Guild v. Newcastle and Hunter River Steamship Co. Ltd. [No. 2] (2) ). Without the request of the 2nd of August there would have been no dispute, no definite demand made and not conceded; but

even the request is not necessarily conclusive as to the existence of . dispute, if the respondents could displace its ex facie purport. respondents have failed to do so. On the contrary, according to. paragraph 70 of the facts found - (for instance) - ' Definite claims in Victoria and New South Wales for better wages for assistants - : log prices for pressers - better prices and conditions for trimmers - and binders, and for some adjustment of prices for piece-work paid to journeymen, would have been formally made after the Denton Mills strike to some of the employers because of dissatisfaction, and - would probably have been insisted upon if not conceded by the em- ployers when demanded if the persons mentioned and the State - Unions had not believed that this Court could, after demand made for a log of prices and a plaint had been filed by the claimant Union, - fix by an award for a term of years a log of prices and conditions for _ the trade generally including the prices and conditions they desired."

It is clear therefore that as regards all the classes of employees _

• even the journeymen - there were claims in the log for conditions _ which had not been previously conceded. But it is stated in the - 2 facts found that many of the piece-work prices and other conditions claimed were already in practice in some of the respondents' mills (pars. 14, 16). The reason was that the claimant wished to have A

years, as an attempt might be made to reduce prices or alter con- ditions. There was substantial ground for fearing such an attempt; indeed, one employer had given notice of his intention to reduce his. 4 tates of payment as he liked. This notice was given about three - weeks before the 2nd August (Ex. F3). The position indeed was one _ of very unstable equilibrium. Immediate trouble was prevented - by the fact that all of the employees of Anderson, the non-union employer who paid lower rates, joined the Union; but Anderson - might employ non-union men at any moment. The request thi the conditions in the log should be the governing conditions through- _ out the industry had a very substantial basis ; and, in my opinion, e even if the log had not contained any claims for improvement in conditions, the claim for a binding and settled industrial rule eo stituted, when not conceded, an industrial dispute.

I concur with the Chief Justice in the view that the words of the

Constitution are not to be read as if they allowed the settlement H- ©: oF A.

of mere claims or prayers to the Court, as distinguished from dis- putes. But in this case it seems to me that before the plaint, with its prayer, there was an industrial dispute, as the employees had demanded and the employers had (in effect) refused the letter of demand of 2nd August 1912. The employers would not even confer with the Union so as to discuss the log.

I also concur in the view that the constitutional power is not to regulate the conduct of industrial enterprises, but to prevent or settle disputes which extend beyond one State. I have said so frequently ; for instance, in the Shearers' Case (1).

But for the purpose of settling or preventing a dispute compul- sorily, a certain degree of restraint or regulation is necessary ; and if a matter of regulation be in dispute, the Court of Concilia- tion is enabled, if necessary, to prescribe what shall be the regulation.

I find it necessary to say that I know of no attempts being made to take advantage of the provision in the Constitution for the purpose of creating disputes, or for the purpose of disturbing industrial peace, or for the purpose of taking the control of the industry out of the hands of the employers. This view seems to be based on a priori utterances of partisan journals, in consequence of the plaint in Federated Engine-Drivers &e. Association v. Caledonian Coal Co., already referred to - a plaint which was dismissed by the Court of Conciliation. I cannot help thinking that there is frequently a con- fusion of ideas between the extension of discontent, which is usually reprehensible, and the extension of the remedy for the discontent, which is proper and laudable. It frequently happens that industrial disputes which would have found vent in strikes in single States are averted by the interposition of the Court, the employees in different States having conferred together and found that they have common grievances, and then forming a common organization without which they could not approach the Court (sec. 19). As the main respon- sibility for the working of the Court falls on me, and as I may be supposed to be more familiar than others with what is being done, silence on this subject on my part might well be taken as an assent to the animadversions which have been made. I concur,

however, in the view that the object of the power is to pre settle real industrial disputes, not to facilitate the creation fictitious disputes (as in the Engine-Drivers' Case (1) ).

In view of the answer to question la, it becomes unneci to answer question 2.

Powers J. The first two questions submitted by me as Deput President were : - (1) On the facts stated in this case includ those set out in the statement of facts annexed to the case, is th an industrial dispute within the meaning (a) of the Constitution, (b) of the said Act? (2) If there is not an actual industrial disp on the facts stated in this case including those in the statement facts annexed to the case, is there a threatened, impending probable industrial dispute which the Court has cognizance of the purpose of prevention and/or for settlement ?

For the reasons stated by the learned President of the Arbitrati Court I agree with him that there is no sufficient reason for refusi to answer either of the questions, and I regard the judgmer delivered in Merchant Service Guild v. Newcastle and Hunter R

The majority of the Court has, however, decided that the questi cannot legally be answered for the reasons stated by them in 1 judgments just delivered, and in deference to that decision I do no propose to answer either of the questions. f

The learned President has referred to what he said in the Newcas and Hunter River Steamship Co. Case [No. 1] (3). The difficulti the President then pointed out caused by the answers to the qu tions in that case (properly given under sec. 31 (2)) have b increased by the decisions in this case. This Court has now de in answers to questions submitted by the learned President in vious cases, and by me in this case, that on a special case s under sec. 31 (2) as it stands at present, it cannot say (1) what

(1) 4C.ALR., 52. (2) 16 C.L.R., 591. (3) 16 C.L.R., 591, at pp. 639-643.

the indicia of an industrial dispute extending, &c., or (2) whether H. ©. or A.

there is a dispute on the facts set out on affidavits by witnesses submitted with the case, or (3) whether there is a dispute on facts found by the President, nor can the Court answer questions of law submitted by the President until after there is a dispute, because they do not arise in the proceedings until there is a dispute.

This Court has also decided that, even if the President finds there is a dispute, that does not enable the Court to answer, because (1) the President cannot decide that question finally ; (2) the fact that the President finds that there is a dispute would not justify the Court in holding there is a dispute in law and fact, because the Court would have to assume that the facts stated were all the facts, and the Court would also have to draw inferences from the facts. It therefore appears impossible to get a decision of this Court as to a dispute, or to get questions of law answered, until all the expense has been incurred and time spent in investigating the merits of the claim. On a motion for prohibition later on, this Court must, of course, decide on the facts whether there is a dispute.

I did not intend when I submitted the special case to ask for an answer to question 1a. Question 1a has been added during the argu- ment before this Court because the majority of the Court decided questions 1 and 2 could not be answered. The question reads : - On the facts stated in the case and annexures, is this Court justified in finding that there is an actual, threatened, impending or probable dispute, and in proceeding to investigate the merits under sec. 23? The effect of the answers of the majority of the Court to question 1a warrants me in proceeding with the plaint, but places on me the responsibility of deciding later on whether there is sufficient evidence (when all the facts are proved) to satisfy me that there is an actual, impending, threatened or probable industrial dispute extending beyond the limits of one State. This question this Court does not see its way to decide on the facts stated in the case submitted.

I do not therefore propose to decide question 1 or 2 until after I have considered the very important judgments just delivered, and heard all the evidence the respondents tender to show that there was not, at the time the plaint was filed, any dispute, actual, impend-

As sec. 31 (2) requires the Court to answer questions of law, arising in the proceedings, I must do so in this case. ca

In the answer of this Court to question 4 in the Newcastle an Hunter River Case {No. 1] (1), this Court held that under the po prevent disputes a binding award can be made even if there is only an impending, a threatened, or a probable dispute. .

Subject to what I have just stated, I concur in the answer of th majority of the Court to question 1a - without agreeing with the reasons given by them. Independently of the fact that the decision of the majority of the Court justifies me in proceeding, I personally consider that I am justified in proceeding to investigate the merits of the case as to part, at least, of the claim set out in the plaint, and as to some at least of the respondents.

I attempted by question 3 to obtain the decision of the Court as to whether certain parts of the claim could be dealt with by me ifa - dispute as to part of the claim was proved, but I must now, in the - first instance, decide that for myself, after hearing both parties or their representatives. Question 3 is admittedly dependent the answer to the first or second question being in the affirmat because the questions submitted only arise in the proceedi if there is a dispute. The questions 3 (a) to (e) although answered were fully discussed by counsel and members of the and the views expressed by my colleagues during the argument y be of assistance when I have to decide the questions. No ai is to be given to No. 3.

As to question 4. Because questions 1 or 2 are not to be answe and question 4 only arises in the proceedings if there is a d pute, no formal answer is to be given to it although some of questions are admittedly very important questions of law. questions included in No. 4 although not formally answered w fully discussed, and the views expressed by my colleagues during the argument will be of great assistance to me in arriving later o at a decision upon them. ¢

The judgment of Gavan Durry and Rica JJ. was read by H.C. or A. Ricu J. We are precluded by the decision of the majority of eg the Court in Merchant Service Guild v. Newcastle and Hunter River 'Tus eux Steamship Co. Ltd. [No. 1] (1) from answering questions 1, 2, 3 and Rear 4. As we are not at liberty to answer these questions, we consider aaaiineas it unnecessary and inexpedient to discuss any of the topics raised - Rien J.

by them. In deference to the decision to which we have referred, we confine

ourselves to answering questions 1a and 5. These questions we answer in the affirmative.

Solicitors, for the claimants, Brennan & Rundle. Solicitors, for the respondents, Derham & Derham.

THE STATE OF SOUTH AUSTRALIA . APPELLANTS; PLAINTIFFS, AND THE STATE OF VICTORIA . ' : . RESPONDENTS. DEFENDANTS,

Privy Boundary between States - Boundary fixed by Statute - Degree of longitude - Councr..*

Authority of Wxecutives to mark boundary on ground - Hfect of marking - 4& 1914. 5 Will. IV. c. 95. =

Jan. 8, The Letters Patent of 19th February 1836, issued under the authority of *

4&5 Will. IV. c. 95, must be taken to have contemplated that the boundary between the Colonies of New South Wales and South Australia, namely, the

*Present - Viscount Haldane L.C., Lord Moulton, Lord Parker of Wad- dington and Lord Sumner.