Federated State School Teachers' Association of Australia Claimant; and Victoria [1929] HCA 11

Federated State School Teachers' Association of Australia Claimant; and Victoria [1929] HCA 11 - HCA 1929 case summary — Zoe

[57]

(1) ) and " capital and labour in co-operation for the satisfaction of material human needs" (Municipal Employees' Case (2) ). The theory advanced to support the contention was remarkable and, if correct, far-reaching. It is independent of the particular circum- stances or terms of employment, and these, therefore, may for the moment be disregarded. The theory was that society is industrially organized for the production and distribution of wealth in the sense of tangible, ponderable, corpuscular wealth, and therefore an "industrial dispute " cannot possibly occur except where there is furnished to the public - the consumers - by the combined efforts of employers and employed, wealth of that nature. Consequently, say the employers, " education " not being "' wealth " in that sense, there never can be an "industrial dispute" between employers and employed engaged in the avocation of education, regardless of the wealth derived by the employers from the joint co-operation. The contention sounds like an echo from the dark ages of industry and political economy. It not merely ignores the constant currents of life around us, which is the real danger in deciding questions of this nature, but it also forgets the memorable industrial organization of the nations, not for the production or distribution of material wealth, but for service, national service, as the service of organized industry must always be. Examination of this contention will not only completely dissipate it, but will also serve to throw material light on the question in hand generally. The contention is radically unsound for two great reasons. It erroneously conceives the object of national industrial organization and thereby unduly limits the meaning of the terms " production " and " wealth" when used in that connection. But it further neglects the fundamental character of "industrial disputes " as a distinct and insistent phenomenon of modern society. Such disputes are not simply a claim to share the material wealth jointly produced and capable of registration in statistics. At heart they are a struggle, constantly becoming more

[62]

'their language correctly and in other necessary elements of culture and vocation making them more efficient citizens, fitting them with more or less directness to take their place in the general industrial ranks of the nation and to render the services required by the community, that training is said not to be wealth and the work done by teachers employed is said not to be industrial. The consequence, it is said, is that employment in the service rendered to the community by education is not one which can give rise to Commonwealth arbitration. That is certainly not my view and is legally, economically and historically opposed to a vast and formid- able array of recorded opinion. As to legal precedents, there can, in the Insurance Staffs' and Bank: Officials' Case (1), be found, in statement and in reference, the opinions of Griffith C.J., O'Connor J., Higgins J., Powers J., Rich J. and myself in clear opposition to that contention. With respect to the opinions of my learned brothers the Chief Justice and Gavan Duffy J. in the same case, if the condition as to manual Jabour be eliminated, I see nothing in those judgments to support the employers' view in this case. Whatever assistance the contention might receive from economists who wrote in a world of commerce and industry that has long ceased to exist, its position to-day is hopeless. A quotation which I take from the judgment of my brother Starke in the Insurance Staffs' and Bank Officials' Case (2) states the view of R. H. Tawney in these words : "Tt " - that is, the industrial mechanism of society - " includes all those bodies of men associated, in various degrees of competition and co-operation, to win their living by providing the community with some service which it requires." (The italics are mine.) The view so expressed is incontrovertible. The community is industrially organized for " services," which expression is the genus, and material objects are only one species of that genus. Professor Hearn recog- nized this truth in his Plutology (pp. 7-8) over sixty years ago, graphically dealing specifically with "industrial" wants and desires, In 1920 the University of Manchester published a volume entitled Labour and Industry, containing lectures delivered in the Department of Industrial Administration in the Manchester College of Technology. In one of these Mr. Cole of the Labour Research

[66]

Department refers (p. 63) to "the most vital factor in industrial organization, the co-operation and willingness to work of the mass of the people who produce and distribute goods and render services." (The italics are mine.) Mr. Cole, it will be observed, distinguishes between "goods" and " services," following a not infrequent line of thought in other connections, but the main point is he includes " services " on the same footing as " goods " in industrial organiza- tion. In another of those lectures, the distinction disappears and the generic term is used. I refer to the lecture given by the Right Hon. Mr. Whitley, M.P., whose views naturally command attention. He speaks not of " material wealth" produced by industrial enterprise, but constantly of " services" and " counter- services." He so terms the result of industry, both as between nations (pp. 4-6) and in relation to home requirements (pp. 8-9). The words " production and wealth " used in the collocation have been given a meaning in accordance with the subject matter. So also by J. A. Hobson in Work and Wealth (p. 3), Mrs. Gertrude Williams of London University in Social Aspects of Industrial Problems (p. 4) and R. G. Hawtrey in The Economic Problem (1926), p. 27 - the matter being summed up thus by the last named writer: " But even where the product is a material object or commodity, the process of production consists of services rendered." So also Professor Davenport of Missouri University in the Economics of Enterprise (1913), particularly at p. 129, and Professor Chapman in Social Betterment (1914), part of the Brassey and Chapman trilogy, Work and Wages, at p. 4. It was on these considerations that my brother Rich and I, as far back as 1919, acting on the principles of interpretation enunciated by Lord Hobhouse in Bank of Toronto v. Lambe (1), and since affirmed both in City of Halifax v. Estate of J. P. Fairbanks (2) and in The King v. Caledonian Collieries Ltd. (3), formulated the concept of industrial dispute; and we repeated it in 1923. That has been greatly canvassed during the argument in the present case. If accurate, it is fatal to the employers' contention. I adhere to it. It runs thus: "Industrial disputes occur when, in relation to operations in which capital and labour are contributed in co-operation for the

At a glance

Court

Decision date

Before

Source

Judgment (119 paragraphs)