Metal Trades Employers Association Claimants; and Amalgamated Engineering Union Claimants and [1935] HCA 79

of organization or not - Jurisdiction of Commonwealth Court of Conciliation and = __, Arbitration - The Constitution (63 & 64 Vict. c. 12), sec. 51 (xxxv.) - Common- gypwey, wealth Conciliation and Arbitration Act 1904-1934 (No. 13 of 1904 - No. 54 of Oct, 17, 18 1934), secs. 4, 18, 19, 24, 29, 31 (2), 38, 44. Deo. i:

A union of employees in an industry served on employers in that industry in Latham C.J., various States a log of demands as to terms of employment, requiring that those Picts, Starker terms should govern the employment of all persons, whether members of the *"t Mpfiernan union or not, employed in the industry by a respondent. Some of the employers served with the log did not employ any members of the union. 'The employers

Held, by Latham ©.5., Rich, Evatt and McTiernan JJ. (Starke and Dixon JJ. dissenting), that, as between the union and the employers served with the log, there was an industrial dispute for the settlement of which the Commonwealth Court of Conciliation and Arbitration had jurisdiction to make an award, binding as well on the employers who did not employ members of the union as on those who did, as to the terms of employment of all employees, including non-unionists.

Held, also, that where a union served on employers a log demanding a specified minimum rate of pay "to be paid by any respondent to employees" and delivered with the log a letter stating that the council of the union requested "you to grant to them " the demands in the log, the question of the terms of employment of non-unionists was not within the ambit of the dispute arising out of the employers' refusal of the demands.

Amalgamated Engineering Union v. Alderdice Ply. Ltd.; In re Mel Gas Co., (1928) 41 C.L.R. 402, overruled.

MacAT Burwood Cinema Ltd. v. Australian Theatrical and Amusement Emplo 'TraDes Association, (1925) 35 C.L.R. 528, Amalgamated Clothing and Allied Trad apis Union of Australia v. D. E. Arnall & Sons; In re American Dry Clea a (1929) 43 C.L.R. 29, and Long v. Chubbs Australian Co., Ltd. (1935) 53 Gl AmaL- 143, considered. GaMarED ENGINEER. 1x Uston.

Case SratTep. A number of industrial disputes to which (a) the Metal Trad Employers Association and its members, and other employers

the engineering and metal trades industries, and (b) the fol organizations of employees: the Amalgamated Engineering Uni the Australasian Society of Engineers, the Blacksmiths Society Australasia, the Federated Society of Boilermakers Iron Shipbuil and Structural Iron and Steel Workers of Australia, the Fed

Moulders (Metals) Union of Australia, the Electrical Trades Un of Australia, the Federated Ironworkers Association of Austral the Sheet Metal Working Industrial Union of Australia, the Feder Stove and Piano Frame Makers Association of Australia, the Ai tralian Workers Union, the Federated Jewellers Watchmakers ¢ Allied Trades Union of Australia and the Australian Plumbers Gasfitters Employees Union were parties, were, pursuant to 19 (d) of the Commonwealth Conciliation and Arbitration Act 1% 1934, referred into the Commonwealth Court of Conciliation 4 Arbitration. During the hearing of the disputes the question 0 the jurisdiction of that Court to make an award binding employers in respect of employees not members of any of t organizations of employees parties to the disputes, was raised number of South Australian employers. Judge Beeby p that elsewhere than in South Australia the award should be

organizations or not, and stated, for the opinion of the High | a case under sec. 31 (2) of the Act, which was substanti follows : -

Court of Conciliation and Arbitration made an award of that in the matters above-mentioned. Clause 29 (b) of the

provides that "it shall be binding upon (i.) the organizations of

employees" set forth above "and the members thereof respec- tively; (ii.) the Metal Trades Employers Association and the members thereof and the employers mentioned" in a schedule thereto, "(a) in South Australia as to employees members of the organizations" of employees set forth above ; ''(b) elsewhere as to employees whether members of the said organizations or not." Clause 29 (c) reserves for further consideration the question whether the award should have any wider operation in the State of South Australia.

2. Those matters were before the Court pursuant to orders under see. 19 (d) of the Commonwealth Conciliation and Arbitration Act 1904-1930,

3. After the orders referred to in par. 2 hereof had been made the disputes were listed before me and an extensive hearing of the disputes and an investigation of the metal trades industry was held. The Metal Trades Employers Association and employers in the States of New South Wales, Victoria, South Australia, Tasmania

and Queensland were represented by advocates or counsel and the

_ above-mentioned organizations of employees other than (a) The

Australian Workers Union, (b) The Federated Jewellers Watch-

makers and Allied Trades Union of Australia, and (c) The Australian

_ Plumbers and Gasfitters Employees evae were represented by officials or advocates.

4. The claims in the respective matters abovementioned so far as relevant to the present case are as follows : - (a) No. 427 of 1933 : The claim by the Metal Trades Employers Association, an organization of employers, and by employers joining therewith served upon all the organizations of employees named in the title of this case stated is expressed thus : - '* Log of Wages and Conditions of Employment : To regulate wages and working conditions to apply to employees in the employ of claimants. Wages - Adults. Clause 1 (a) - The basic wage required to be paid to adult male employees wherever employed in any part of the Commonwealth of Australia by a claimant to the award herein, shall be an amount determined by the Common- wealth Court of Conciliation and Arbitration, after a proper inquiry,

as will enable secondary and primary industries to profitably progress Vow. Liv. 26

H.C. or A. and expand. Clause 2 - In addition to the basic wage payable ae, set out in clause 1 hereof, the following marginal rates shall | Mera. payable to adult male employees engaged on the following classific

Bincoreis tions : - " [Here follows a table of classifications of employees an

AssoclatioN marginal rates claimed for such classifications respectively.] "

As Incidence and Duration: Clause 20 - This award shall come int operation on the first day of November, 1933, and shall remain j

~ operation for a period of five years and shall be binding upon t claimant persons, firms and companies whose names are set out in th schedule annexed hereto and their employees members of the org

tions of employees whose names are set out in the schedule ann hereto." Accompanying the log served by the said organizati employers and the said employers in this matter was a letter d 2nd November 1933, of which omitting formal parts the follo is a copy : - "' The members of the Metal Trades Employers A tion, and other employers whose activities extend to all States ¢ the Commonwealth, are opposed to the present method of fixim the basic wage applicable to the industries in which members

your organization are employed, on the classifications set out in the attached log. The present method of fixing the basic wage unsuitable for present-day conditions, and is causing unrest and dissatisfaction generally. Many of the conditions of employme at present operative in the industry are also the subject matter argument, and not in the best interests of all parties. Rea that your organization also is opposed to the present basic ¥

set out in the log. It may be that you would prefer this matter settled by the Commonwealth Court of Conciliation and Arbitrat

(b) No. 172 of 1934: The claim of the Amalgamated Engi

Union served upon employers in the States of New South W: Victoria, South Australia and Tasmania was headed: " Wages and Conditions of Employment: To govern the wages é

working conditions of all persons employed by a respondent in any

branches of the industry named in the log." The claims when

served were accompanied by a letter from the union requesting grant to your employees the wages

and working conditions as set out in the log enclosed herewith." _ (c) No. 177 of 1934: The claim of the Australasian Society of _ Engineers served upon employers in the States of New South Wales, ~ Victoria, South Australia and Tasmania and the letter served there- _ with were substantially similar in this regard to the claim and letter mentioned in (b) of this paragraph. (d) No. 181 of 1934: The claim of the Blacksmiths Society of Australasia served upon employers in the States of New South Wales, Victoria and South

Australia and the letter served therewith were substantially similar in this regard to the claim and letter mentioned in () of this paragraph. (e) No. 118 of 1934: The claim of the Federated Society of Boilermakers Iron Shipbuilders and Structural Iron and Steel Workers of Australia served upon employers in the States of New South Wales, Victoria, South Australia, Tasmania and the Federal i Capital Territory was headed as in (b) of this paragraph mentioned.

The claims when served were accompanied by a letter requesting employers respectively "to grant to your employees whether members of the union or not such improvements in wages and working conditions as are contained in the log of wages and working con- ditions enclosed herewith." (f) No. 146 of 1934: The claim of the Federated Moulders (Metals) Union of Australia served upon employers in the States of New South Wales, Victoria, South Australia and Tasmania was headed : - " General Log of Wages and Conditions of Employment: 1. Wages. - The minimum rate of pay to be paid by any respondent to employees shall be as follows: - " [Here follows a table of classifications of employees and marginal rates claimed for such classifications respectively.] 'The claims when served were accompanied by a letter from the union in the following terms, so far as is now relevant: "I am directed _ by the Federal Council of the above union to respectfully request _ you to grant to them improvements in the working conditions as con- tained in the log of wages and working conditions enclosed herewith." (9) No. 219 of 1934: The claims of the Electrical Trades Union

H.C. or A. of Australia served upon employers in the States of Victoria, 1935.

"© govern the wages and working conditions of all persons employed

• The claims when served were accompanied by a letter in th ~ following terms, so far as is now relevant: "I am forwarding hei

Australia and Tasmania (and upon employers in New South Ws in respect of a smaller section of the Electrical Trades industr was headed: " Log of Wages and Conditions of Employment:

respondent in any of the branches of the industry named in the log

on behalf of the above-named union a copy of a log of wages a1 working conditions which it is desired should apply to the memb of the union in your employ." (hk) No. 220 of 1934: The cla of the Sheet Metal Working Industrial Union of Australia s upon employers in the States of New South Wales, Victoria a1 South Australia were headed as in (g) of this paragraph menti The claims when served were accompanied by a letter in t following terms so far as is now relevant: "Under instruc tions from the above union I am forwarding herewith a log « wages and working conditions which it is asked should made applicable to members of the union in your emplo (i) No. 204 of 1934: The claims of the Federated Ironworke Association of Australia served upon employers in the States of New South Wales, Victoria and South Australia were headed thu "Log of Wages and Conditions of Employment: To govern wages and working conditions of all members employed by a re dent in any of the branches of the industry named in the The claims when served were accompanied by a letter from 1 association commencing as follows : - *I am forwarding he under instructions from the Federated Ironworkers Association Australia a log of wages and working conditions which it is di should be made applicable to members of the association in employ." (j) No. 187 of 1934: The claims of the Fe Stove and Piano Frame Makers Association of Australia were served upon employers in the State of South Australia and are relevant to this case. 5. The Metal Trades Employers Association is an association | employers registered as an organization of employers under the Its members are employers in the metal trades industry princi

in the State of New South Wales. The employers joining with the Metal Trades Employers Association as claimant employers in dispute No. 427 of 1933 are employers in the industry principally in the States of New South Wales and Queensland. The claimant employers do not carry on manufacturing to any appreciable extent, if at all, in the State of South Australia. Except to the limited extent, if at all, to which dispute No. 427 of 1933 embraces employer claimants in the State of South Australia there is not pending in this Court any industrial dispute in which employers in the State of South Australia are claimants.

6. The existence of industrial disputes extending beyond the limits of any one State on all matters raised in the said claims was not denied by any party represented before the Court. During the hearing the question of the jurisdiction of the Court to make an award binding upon employers in respect of employees not members of either of the above-mentioned organizations of employees was taised. The employer parties in the States of New South Wales, Victoria and Tasmania then stated that they would agree to the award being so made, and, having regard to the claims referred to in par. 4 hereof, I prescribed that elsewhere than in South Australia the award mentioned in par. 1 hereof shall be binding upon employers as to employees whether members of the said organizations or not.

7. Counsel for a large number of employers in the State of South Australia, parties to the disputes, objected that this Court had no jurisdiction to make an award binding upon employers in respect of employees not members of the organization or organizations by which claims had been served upon such employers. Counsel for the employers stated that they desired this question of jurisdiction to be determined by the High Court of Australia.

8. Certain employers in the State of South Australia, respondents to the claims of the organizations of employees, have not at any relevant time employed any member of the claimant organizations.

9. I therefore state this case for the opinion of the High Court upon the following question, which in my opinion is a question of law :- -

Has the Commonwealth Court of Conciliation and Arbitration jurisdiction to prescribe that the said award in so far as it

relates to matters raised in the claims of (i) The A gamated Engineering Union ; (ii) The Australasian Society of Engineers ; (iii) The Blacksmiths Society of Austra (iv) The Federated Society of Boilermakers Iron Shipbuilders and Structural Iron and Steel Workers of Australia ; (y) TI

Federated Moulders (Metals) Union of Australia, shall be binding in the State of South Australia upon employers respect of employees not members of either of the organizations of employees (a) where such employers not at any material time employ members of the rel organization of employees; (b) where such employers do employ members of the relevant organization of employ

Ligertwood K.C. (with him Wright). for the South Austra employers referred to in par. 7 of the case stated. The question in the case stated should be answered in the negative. There never any claim by the Federated Moulders (Metals) Union the award should extend to any employee who was not a member of that union; therefore, so far as that union is concerned, question should be answered in the negative (Australian I z Staffs' Federation v. Atlas Assurance Co. Ltd. (1) ). It is not within the power of the Commonwealth Court of Conciliation and Arbitratio to prescribe wages and conditions to be observed by an emplo with respect to persons who are not, either personally or through representative union, parties to the dispute (Amalgamated Engi Union v. Alderdice Pty. Ltd.; In re Metropolitan Gas Co. Amalgamated Clothing and Allied Trades Union of Australia v. D.. Arnall & Sons ; In re American Dry Cleaning Co. (3)). Those ca

not be reviewed (The Tramways Case[No. 1] (5) ); norisit the decis of an equally divided Court within the principle of Tasmania v. Victoria (6). Furthermore, that decision has been acted upon by

(1) (1931) 45 CLR. 4 (3) (1929) 43 (2) (1928) 41 CLLR. 402, at pp. 411, (4) (1929) 43 435. (5) (1914) 1

with awards of the Arbitration Court and who may become liable for penalties if the decision is overruled. The definition of " indus- trial matters" in the Commonwealth Conciliation and Arbitration _ Act must be referred to in the scheme of the matters referred to in : the judgment in Alderdice's Case (1). The matter dealt with in ' Long v. Chubbs Australian Co. Ltd. (2) related to apprentices only ; therefore that case is not inconsistent with Arnall's Case (3). The power of the Court to deal with apprenticeship is specifically dealt _ with in sec. 25c of the Act. There is not any reference in the Act to non-unionists. So far as the Act purports to confer jurisdiction to deal with non-parties and non-unionists, it is unconstitutional as being in excess of the power conferred by sec. 51 (xxxv.) of the Constitution. Arbitration is a judicial function (Australian Boot Lrade Employees' Federation v. Whybrow & Co. (4); R. v. Common- wealth Court of Conciliation and Arbitration; Ex parte Whybrow & Co. (5)). The jurisdiction suggested by the question in the case stated is essentially one to affect the rights and obligations of persons who are not parties to the proceedings. It is not a sufficient answer to say that the award only purports to bind employers and employees who are parties. If it is necessary to resort to arbitration, then the persons who are to be affected in the matter should be heard. The award purports to make contracts between employers and non-unionists on terms other than those specified in the award illegal contracts. This constitutes an interference with a non- unionist's right to freedom of contract. If the Court upholds the power it will lead to great practical difficulties resulting, among other things, in duplication and confusion. Acceptance of the _ principle of applying awards to non-unionists would be tantamount to legislation in lieu of arbitration. Arbitration is for the purpose of settling disputes between particular parties and confined to particular amounts. Non-unionists do not acquire rights or incur obligations under the awards; that is, so far as non-unionists are concerned, awards have not the force of law. This is important in il of sec. 109 of the Constitution. The limit to the power to

(1) (1928) 41 C.L.R. 402. (3) (1929) 43 C.L.R. 29. (2) (1935) 53 C.L.R. 143, (4) (1910) 11 C.L.R. 311, at p. 322. : (5) (1910) 11 C.L.R. 1, at p. 25.

create a dispute, as shown in Burwood Cinema Ltd. vy. A Theatrical and Amusement Employees' Association (1), does extend beyond potential employers of unionists. There cannot b a "dispute" between a union and an employer with regard to hi existing employees who are not members of the union.

Hannan K.C. (with him Besanko), for the State of South Austi The State of South Australia adopts the argument addressed to the Court on behalf of the employers of that State. The power and jurisdiction of the Arbitration Court are subject to the rule laid down in Whybrow's Case (2). That Court cannot, under pretence ¢ settling disputes, declare a common rule ; its functions are ju in nature, not legislative. Awards which are in their true natu and substance legislation are beyond the power and jurisdiction o the Court. An examination of the award shows that in its true nature it is legislative. The purpose and intention of the orga tions, whether of employers or of employees. invoking the j tion is to obtain an award to cover all matters in the indu that is, to obtain a comprehensive and exhaustive code. It is not within the power of the Court to give effect to that purpose intention. The South Australian employers of non-unionists included in order to use the jurisdiction, or the assumed jurisdicti of the Court for the purpose of legislating by means of an aw to cover the whole field of industrial relationship in that particula industry (see Whybrow's Case (3) ). The conditions of appre ship contained in the award before the Court in Long v. Ci Australian Co. Ltd. (4) were incidental to the settlement of ana dispute before the Arbitration Court. On that ground that decis can be reconciled with the decisions in Whybrow's Case (5), Ald Case (6) and Arnall's Case (7). 'The matter for consideration i Long v. Chubbs Australian Co. Ltd. (4) was the entry of apprentice into the metal trade. The award now before the Court does deal with the entry of non-unionists into the industry. There is 0 real dispute between the employees' organization and the empl

(1) (1925) 35 C.L.R. 528, (4) (1935) 58 C.L.R. 143. (2) (1910) 11 C.L.R. 311. (5) (1910) 11 C.L.R. 31h, 1 C.L.R., at pp. 318, (6) ( 410

• organizations genuinely interested in making claims for the benefit ~ of non-unionists ? The real and substantial desire on the part of those organizations is to have Commonwealth law prevail in the industrial field of their industry, to the total exclusion of State law, by force of sec. 109 of the Constitution. In these circumstances the Court should look at the real nature of the transaction. The State of South Australia is concerned to safeguard rights claimed by it under the Constitution to legislate with regard to domestic matters falling within the arbitral sphere (Whybrow's Case (1)). The ~ inelusion of non-unionists within the scope of the award would, in effect. result in a common rule (Alderdice's Case (2) ). There can only be a dispute with regard to matters in respect of which one party can ask and the other party can concede (Federated Clothing Trades of the Commonwealth of Australia v. Archer (3) ).

J. A. Ferguson, for the Federated Ironworkers Association of _ Australia and The Electrical Trades Union of Australia. The views of the association and of the union are largely in accord with the _ arguments already addressed to the Court in this matter. In so _ far as awards of the Commonwealth Arbitration Court do not cover

• the field, the State law prevails. Frequently an organization is
• taken unwillingly to the Commonwealth Arbitration Court. If

the Court holds that it is open to make a claim to cover not only

'. persons who may not be members of the claiming organization, or any employer in the particular dispute, it will enable the employers, by getting as many as possible into the organization or into the dispute of other employers, to cover the whole of the field in regard

members of the organizations who may be employed, but also any : ;

to all employees, whether unionist or non-unionist. The only class _ or field that cannot be covered is one which arises in the future, or one who has been overlooked in the collection of employers. If that contention be correct, then State arbitration must largely _ disappear. An award of this nature is prejudicial to the membership of unions. Non-unionists should not benefit from the efforts of

(1) (1910) 11 C-L.R., at p. 345. (2) (1928) 41 C.L.R., at pp. 408, 409. (3) (1919) 27 C.LLR. 207.

Ww Merat. 'TRADES EMPLOYERS: ASSOCIATION v. AMAL-

• not parties to the dispute. The Act shows. by express provisions,

unionists. Under the Commonwealth Conciliation and Arbiter Act there is no power, irrespective of the Constitution, to deal this matter in the way it was dealt with in the award. Any to create a dispute with employers with respect to non-unioni a departure from practice. There is not any justification Act for any such departure. No attempt was made, either dire or indirectly, in the Act to deal with the rights of persons who ;

the Legislature regarded the arbitral power per se as not including th power. There isa distinction between a dispute which affects m of an organization and one which affects persons who are not of an organization. Apart from preference, the Act still has to] construed as if the "' common rule " provision were in it. The comm tule power is contained in sec. 38 (f) of the Act. It is dire to some of the matters which arise in this case. The common provision was discussed in Master Retailers Association of New 8 Wales v. Shop Assistants Union of New South Wales (1). that decision it was apparent that there was not sufficient pows the Constitution to deal with situations which could have been de with otherwise than by common rule. Instead of proper steps bt taken this circuitous attempt is being made to strain the o of the arbitration power so as to take power now without

O'Mara, for the Metal Trades Employers Association and New South Wales employers. With regard to the first four referred to in the question reserved in the case stated, the claim equal conditions of employment for unionists and non-unionis within the ambit of the respective disputes. The matters claim are within the scope of the Arbitration Court's powers as confet upon that Court by sees. 23, 24 (2) and 38 (b) of the Common' Conciliation and Arbitration Act. A claim that a non-unionist a non-party should be paid the same wages and given the s conditions as a party comes within the definition of an " industrial

dispute." The definition of "industrial matters" was deliberately 4

framed to include all possible matters. A claim by a union on an employer that he should not give worse conditions to non-unionists

is an industrial matter apart from any definition. This case is fyrLoyers indistinguishable from Long v. Chubbs Australian Co. Ltd.(1). That ASSpOIATIOR

case is not to be distinguished on the ground that there is a specific power to deal with apprenticeship by reason of sec. 25c and a power Ee to deal with persons of any particular age or sex. The words dealing with wages and hours in the definition of " industrial matters " are not less specific than the words there relied upon. The Legislature intended to cover the widest possible field in respect of employers and employees (George Hudson Ltd. v. Australian Timber Workers' Union (2); Arnall's Case (3) ). The matter of non-unionists being in a position in which they can be employed to the detriment of unionists isa matter unions are entitled to bring before the Court (Alderdice's Case (4)). There is nothing in sec. 24 inconsistent with the view that an award can be made binding in respect of non-parties. Employers' and employees' organizations may agree that non-unionists shall eive wages and conditions not less favourable than unionists. Non-observance would involve employers in a breach of the Act,

even though non-unionists would be unable to enforce observance. It is a matter which one party is entitled to claim and the other party to grant; therefore it is capable of being made a term of an award (Federated Clothing Trades of the Commonwealth of Australia y. Archer (5) ). The principle in Hudson's Case (6) is that the settlement of a dispute would be ineffective and possibly futile unless there was a power to bind successors.

[Evarr J. referred to Australian Workers' Union v. Pastoralists' Federal Council (7).

The question before the Court in R. vy. Hibble; Ex parte Broken Hill Proprietary Co. Ltd. (8) does not arise here. Sec, 40 is not an empowering section ; it imposes limits upon the absolute powers which the Court might otherwise have found in the word " preference "

(1) (1935) 53 C.L.R. 143. (4) (1928) 41 C.L.R., at p. 428.

(2) (1923) 32 C.L.R. 413, at pp. 437, (5) (1919) 27 C.L.R.; at pp. 212, 213. 439, 441, 453, 454. (6) (1923) 32 C.L.R. 413.

(3) (1929) 43'C.L.R., at pp. 44-49. (7) (1917) 23 CLR. 22.

H.C. or A. (Anthony Hordern & Sons Ltd. v. Amalgamated Clothing and All

ai by arbitration (Whybrow's Case (2)). At the time a dem

Trades Union of Australia (1) ). A common rule establisl conciliation is within the power, even though otherwise if estal

made and the dispute exists it is immaterial whether that employ employs members of the organization or not (Burwood Case (3) ).

Flannery K.C. (with him Holmes), for the Commonwe: intervening by leave. The excerpt from the judgment of Ga Duffy and Starke JJ. in Alderdice's Case (4), quoted by Isaaes J. Arnall's Case (5), covers this case ; it is the correct law. Once! "class" is in the Arbitration Court the next question is: the subject matter of the dispute which the tribunal is called wy to settle? That is ascertained in the first instance by dete

from falling within that section. Here there is a dispute inter with the parties present. No constitutional question was dete: in Alderdice's Case (6), or in Arnall's Case (7), or in Long vy. Australian Co. Ltd. (8). It, however, was raised in the Bu Cinema Case (9) and was determined in favour of the Commom power and the provisions of the Arbitration Act. Sec. 29 sp the parties who are bound by an award. The award is not af so far as the parties present in Court are concerned, by the fact other people are not bound ; those people are eventually bou long as the subject matter with which the award deals is an indi matter within the meaning of sec. 4. If it is not an industrial mat they are not bound ; if it is, they are bound. The first portic the definition of "industrial matters" is in its nature defini but not exhaustive. The next portion is indicative in its e terms. Arbitration implies certain things and thereby excludes method of the common rule. If, however, there be a proper dis and all the persons concerned are before the Court, the award is common rule in the sense that it applies to everyone concerned.

(1) (1932) 47 C.L.R. 1. (5) (1929) 43 C.L.R., at p. 39 (2) (1910) 11 C.L.R., at pp. 336, 337. (6) (1928) 41 C.L.R. 402, -

(3) (1925) 35 C.L.R. at pp. 535, 5; (7) (1929) 43 C.L.R. 29. (4) (1928) 41 C.L.R., at p. 435. (8) (1935) 53 C.L.R. 143.

objection can be taken to a common rule if established by permitted means. Everything which takes part so far as employment and non-employment are concerned is mentioned in the definitive portion of the definition of " industrial matters." It includes the exclusion and the regulation of non-unionists and other people not parties to the arbitration itself. The relationship between the parties in respect of the industry is defined, not by their con- tractual relations, if any, but by their general industrial relations having regard to the industry itself (Burwood Cinema Case (1) ). What was here claimed from the employers was something to which they could agree and which subsequently became a matter of dispute. The matter is within the purview of the Arbitration Court. It is not prevented by the reasons put forward by the three Justices in Alderdice's Case (2) and Arnall's Case (3). So far as principle is concerned, Long v. Chubbs Australian Co. Ltd. (4) is good law and should be applied here. So far as sec. 24 is concerned, this matter can be the subject of an award.

Ligertwood K.C., in reply. A distinguishing feature in the award in Long v. Chubbs Australian Co. Ltd. (5) is a prohibition of the employ- ment of minors ; it definitely comes within the preference principle. Decisions of the Court should be followed unless manifestly wrong.

For this reason Arnall's Case (6), which for seven years has regulated the industrial relations of employers and employees, should be followed in this case. It is a departure from the conception of industrial arbitration to govern the relations of persons who are not parties to the industrial dispute. The point involved in this case goes far beyond the principle established in the Burwood Cinema Case (1).

Latuam ©.J. The Commonwealth Court of Conciliation and Arbitration has jurisdiction to settle industrial disputes by an award (Commonwealth Conciliation and Arbitration Act 1904-1934, secs. 18, 19, 24 ( Sec. 4 of the Act provides that " industrial

(4) (19: C.L.R. 143. (5) (1935) 53 C.LAR., at p. 145. (6) (1929) 43 C.L.R. 29.

' in relation to any industrial matter having regard to the int

dispute " means "an industrial dispute extending beyond the of any one State and includes - (i.) any dispute as to ind matters." The same section provides that " industrial ma includes (inter alia) "all matters relating to work

tights, or duties of employers or employees . . . relations of employers and employees . . . the employm

of persons . . . being or not being members of ; organization . . . and all questions of what is fair and

of the persons immediately concerned and of society as a whol The terms of employment of persons in industry constitute ¢ industrial matter and there may be an industrial dispute as to su terms between such persons and their own employers. : {

The first question which arises in this matter is whether the may be an industrial dispute between employees (A) and emp (B) as to terms of employment of other employees (C) in the industry in which employees (A) are engaged in cases where nor of the employees (A) are themselves employed by some or even I any of the employers (B). j

A dispute exists only between the disputants. Generally naturally it relates to their mutual industrial relations. But is no reason why it should not relate to the industrial relat between one set of the disputants and third persons. In actu: experience preference to unionists is an industrial matter which i a common source of industrial disputes between unionists and employers. In such disputes the contention of the disputan essentially relates to the employment or non-employment by set of disputants of third persons who are not parties to the dis Such a matter is of great industrial importance alike to unio and non-unionists (as well as to employers), but only unioni

employees. There does not appear to be any reason in print for denying that the terms upon which non-unionists may employed may be as much the subject matter of an indus dispute as the question whether non-unionists shall be employe all.

Unionists may be concerned and apprehensive with respect to _ any matters which may affect the terms upon which their employers ond afford to employ them. If other employers are at liberty to f employ non-unionists at lower rates of wages, the competitive efficiency of employers employing unionists may be seriously i prejudiced, and the continued employment of the unionists may be

jeopardized. Employers of unionists may take the same view. It is to be expected that the opinions of those engaged in industry will vary upon this subject. Some will regard it as a matter of principle, others as a matter of interest. Divergence of views is well illustrated in this very case. Four unions have definitely claimed that employers should give to non-unionists the same conditions as to unionists, while two unions have appeared before the Court to oppose that claim. Employers in New South Wales, q Victoria and Tasmania argued in the same way as the four unions mentioned, while employers in South Australia supported the arguments of the two opposing unions. The question of the terms upon which non-unionists may be employed can hardly be denied to be industrial in character, and it is obvious that it may become the subject of a dispute - between employers and employees, or between employers and employers, or between employees and employees.

The question which arises cannot however be decided merely by determining that the subject matter of the claim made may be the subject of an industrial dispute. The Act authorizes the settlement of industrial disputes only by conciliation or by arbitration. Conciliation may bring about an agreement: arbitration may

result in an award. An agreement between two persons may produce an effect upon third persons, but it can impose duties or confer rights only upon those who make the agreement. Similarly an award may produce an effect upon third persons, but it can directly affect the legal relations only of those who were parties to the arbitration proceedings of which it is the result. In industrial arbitration the conception of " parties" is extended by a doctrine of representation which is in itself associated with the idea of "industrial disputes." Industrial disputes are essentially group contests - there is always an industrial group on at least one side.

• A claim of an individual employee against his employer is not j

• employee for some improvement in his pay or conditions of emp

itself an industrial dispute. If it professes to be based upon ai existing right (as, for example, a contract of employment, or award (see Mallinson v. Scottish Australian Investment Co. Ltd. (1)) such a claim may give rise to litigation in the civil Co t is not an industrial dispute. If a claim is made by an indivi¢ ment, the refusal of the claim by his employer may result in personal dispute, but this in itself would not be an industrial dispu One necessary element of an industrial dispute, as distingu from other disputes, is the circumstance that a demand is ma by or upon a group of employers or employees. Thus an indu organization is engaged in such a dispute when it makes what may be called an industrial demand on behalf of its members, pi and future. In a forensic sense the organization is the pa the dispute, though it asks for nothing for itself as an organiza In another sense, the existing members of the organization are' parties to the dispute. The object of the dispute is to obtain rig for them or to cause them to become subject to obligations. future members of the organization, though not in existence as are also regarded as represented in the dispute by the o1 (Burwood Cinema Ltd. v. Australian Theatrical and Amus Employees' Association (2) ).

The conception of industrial arbitration is closely similar in th respects to that of an industrial dispute. The parties to the ceedings always include some group which makes or re demand for an award which will impose duties or confer upon or in relation to the members of the group. This conceptio underlies the provision in sec. 29 of the Act that members organization shall be bound by an award, though they have m individually taken any part in the arbitration proceedings. A statement that an industrial award binds only disputants who a parties to the arbitration proceedings must be understood in # extended sense which has been illustrated by what has just : said. It is unnecessary to give any further illustration of principle that even the strictly legal effect of an industrial award

extends beyond the area of the rights and duties of those natural persons or juristic persons (including industrial organizations) which are the "litigants" in the arbitration. This result follows _ from the actual fact that an industrial dispute necessarily involves _ the idea of a demand made by or upon a group of employers or Y employees.

These considerations do not affect the principle that the Common- wealth Court of Conciliation and Arbitration cannot impose duties

• orconfer rights upon persons who are neither parties to, nor "represented in any manner in, the dispute or the arbitration proceedings.

Tt does not, however, follow that an industrial award, by imposing duties upon such parties (which are owed only to other such parties), cannot affect the possible employment of third persons who are not such parties in any sense. It is true that the procedural provisions of the Act limit the legal effect of an award to persons

who either directly are, or by reason of representation are regarded as being, such parties. But the terms of an award may prevent the creation of specified legal relations between a party and third _ persons. An obvious example is found in the admitted proposition that an award may grant preference to unionists. So far as the

award creates legal relations between persons, it affects only the parties to the dispute and to the proceedings. But it prevents the lawful employment of non-unionists and therefore prohibits the creation of a contract of employment between employers and non- unionists, even though the latter were not parties to or heard in the arbitration proceedings.

The power to grant preference to unionists is not found in sec. 40. _ That section assumes the existence of such a power and prescribes conditions affecting its exercise. The power is to be found in the definitions of industrial dispute and industrial matters, and in the sections which give the Court jurisdiction to settle such disputes by the method of arbitration.

If it is admitted (as is the case) that an award may entirely prohibit the employment of non-unionists, though they are not Parties to any dispute or to any arbitration proceedings, it is difficult

to see why an award should not contain a provision prohibiting VOL, LIV. 27

MeraL TRADES EMPLOYERS ASSOCIATION v. AMAL- GAMATED ENGINEER- inc Unron.

Merau TRADES EmpLoyers AssoctaTiON v AMAL- GAMATED ENGINEER- inc Unron.

the employment of non-unionists except upon industrial terms an conditions specified in the award. Such an award would not rights upon non-unionists, but it would impose duties upon empl and a breach of such duties would be an offence under the Act secs. 38 (d), 44, 49).

It is contended, however, that the Court is precluded by pre decisions from adopting this view. It has already been s that the principle suggested does not conflict with the d which declare that only the parties to a dispute and to arbiti tion proceedings can be bound by or acquire rights under an av It has also been shown that a claim by a union that employer shall not be allowed to prejudice or to diminish the employment unionists is a claim as to an industrial matter which, if resi may bring about an industrial dispute. But it is urged that the Cour has already decided the crucial question in the case of Amalgamated Engineering Union v. Alderdice Pty. Ltd. ; In re Metropolitan Gas Co (1), followed and applied in Amalgamated Clothing and Allied Trade Union of Australia v. D. E. Arnall & Sons; In re American Dr Cleaning Co. (2). In Alderdice's Case (3) Gavan Duffy and JJ., with whom the Chief Justice (Sir Adrian Knox) said : - " It is not necessary to determine what jurisdiction m be given to the Court under the terms of the Constitution because clear words would be necessary in the Arbitration Act t endow the Court with powers and authority to specify the duty of employers to employees who are not parties to the industrial dispute before the Court, nor members of nor represented by the organizatio making the claim. Nowhere in the Act are any such words to found: always the power is to settle some dispute in which th parties are more or less defined or capable of definition (cf. secs. 16 18, 19, 198, 23, 24, 26, 27, 29, 32, 37, 38 (i), (7), (p), (s), 388 and 48) and to make orders and awards with respect to the reciprocal duti and obligations of the parties appearing or represented in dispute. The power in the Court to grant preference of employmen to unionists in no wise conflicts with this view: that is a powe f prescribe the rights and duties of the actual disputants as bet

(1) (1928) 41 C.L.R. 402, (2) (1929) 43 CLR. 29. (3) (1928) 41 C.LR., at p. 435.

themselves, though it may also be detrimental to the interests of others." The other three members of the Court decided the case upon other grounds. The same learned Justices re-affirmed this _ statement as to the law in Arnall's Case (1), where Rich and Dixon JJ. concurred in the decision of the Court, stating that it would be "a futile proceeding for us to investigate for ourselves a question so recently considered by our colleagues, and to form our opinion when we have their decision to which they now adhere and which must govern this case. It would, in any event, be undesirable for us to take such a course, and it is made no less undesirable by the considera- tion that if we did arrive at an opinion upon the meaning of the statute opposed to that of our colleagues, a thing we do not suggest as likely, we should then be faced with the formidable constitutional question whether, so interpreted, the Act was within the power of Parliament."

Tn Long v. Chubbs Australian Co. Ltd. (2) the question arose whether an award could validly provide that non-unionist minors (not parties to any dispute and not represented in the arbitration _ proceedings) should not be engaged in certain specified occupations unless they were employed under contracts of apprenticeship framed in accordance with the award. It was held by Rich, Dixon, Evatt and McTiernan JJ., who constituted the Court for the hearing of the case, that, the engagement of minors being a matter within the _ ambit of the relevant industrial dispute, the provision in the award was valid; the award created, in relation to industrial matters, _ tights and duties which were enforceable and performable by the 'parties to the award. The Court examined the decision in Alderdice's Case (3) and, after citing the passage already quoted from the judgment in that case, said : - * We think the passage we have quoted _ impliedly concedes that, where the material interests of one set of disputants are directly affected by the relations which the other set _ habitually enters into with strangers to the dispute, an award may _ regulate their entry into these relations, at any rate if it assumes _ to do no more than confer rights and impose duties upon the dis- putants and, in the case of organizations, their present and future

(1) (1929) 43 C.LR., at p. 52. (2) (1935) 53 C.L.R. 143. (3) (1928) 41 C.L.R. 402.

H.C. or A. members" (1). The Court then repeated what was said in A

Rua Case (2) with respect to the binding force of Alderdice's Case (3

Merat As to Arnall's Case (4) itself the Court says : - ' Arnall's Case.

sige es itself is somewhat nearer to the present because it concer

AssoclaTION jmprovers. But we do not think that we are called upon to v Amat- _ sider that decision, because we think that in any view apprenti GAMATED

E er. 18 a matter with which the Court of Conciliation and Arbitra iat i 1X: may deal. It is desirable, however, to point out that the d

tatham CJ. of that case is by three Justices in a Court of six " (1).

These authorities, in my opinion, leave it open for the Court decide that the Arbitration Act authorizes the making of an ay which, being limited to the ambit of an industrial dispute, and conferring rights and imposing duties only upon the parties (un stood in the extended sense explained) to the dispute and to arbitration proceedings, prohibits one set of disputants from enter . into industrial relations with strangers save and except u specified terms. In my opinion the Court should now so decide.

This analysis of the matter answers the objections based upon the Constitution, sec. 51 (xxxv.). Such an award deals with an industrial dispute, and the award, regarded (as it should and must be rega as conferring rights and imposing duties only upon " parties," is the result of arbitration as defined in previous decisions of this Court.

It has been argued before us that the question which arises i concluded by the decision in Australian Boot Trade Emplo Federation v. Whybrow & Co. (5). In that case it was held tl the provisions of the Act which purport to authorize the Comm wealth Court of Conciliation and Arbitration to declare and t establish a common rule were ultra vires the Parliament of Commonwealth and invalid. The ground of that decision, how is to be found in the principle that an award, whether made the purpose of preventing or for the purpose of settling an industri dispute, could not bind others than the disputants. Accordingly was determined that an award could not extend beyond the area of the dispute so as to regulate the whole of an industry irrespecti

(1) (1935) 53 C.LR., at p. 151. (3) (1928) 41 C.L.R. 402. (2) (1929) 43 C.L.R., at p. 52. (4) (1929) 43 C.L.R. 29. (5) (1910) 11 C.L.R. 311.

of the extent of the dispute. But it was not denied that the award could deal with the whole subject matter of the industrial dispute. That subject matter may include a controversy as to the industrial relations of disputants with strangers to the dispute. If so, there is nothing in the principles upon which Whybrow's Case (1) was decided which prevents the making of an award dealing with that controversy (cf. George Hudson Ltd. v. Australian Timber Workers? Union (2) ). These considerations provide a reply to the objection that the proposed award would be legislative rather than arbitral in character.

Tt has been urged, as an argumentum ab inconvenienti in support of the contention that the Act does not contemplate an award being made which deals with the relations of disputants to persons who are not disputants, that great confusion will arise if such awards are made. Unionists doing identical work may, it is pointed out, in some cases belong to either of two or possibly more unions, but as long as awards deal with the relation of employers to unionists and not with the relation of employers to non-unionists, it is possible to ascertain which award applies in any given case. It is urged that, if awards in general are framed upon the model of the proposed award in this case, it will sometimes be impossible for an employer to know to which award he should refer in order to ascertain the terms upon which he could lawfully employ a non-unionist. The difficulty is a real one, but its existence or possible existence cannot be decisive of the legal questions raised. The risk of such confusion arising and the desirability, indeed the necessity, of preventing it, will doubtless be present to the mind of the Arbitration Court. The matter is in the hands of the Court, which will doubtless take pains to prevent more than one award being so expressed as to be applicable in any given case for the purpose of defining terms upon which any non-members of organizations can be employed. It is to be presumed that, before any such award is made, the Court will ascertain the relevant facts and that the terms of the award will be framed in the manner which the Court considers proper in each case. The employers cited are, of course, entitled to be heard, and the powers of the Court under sec. 25 of the Act are sufficiently wide to enable

(1) (1910) 11 C.L.R. 311. (2) (1923) 32 C.L.R., at p. 439.

Mera TRADES EMPLOYERS Association: vw AMAL- GAMATED ENGINEER- use Union.

Merau TRADES EmpLoyers ASSOCIATION v AmAL- GAMATED ENGINEER- 1c Unton.

the Court to make such inquiries and hear such representatior it may think just in relation to the interests of any non-unionist affected, even though they are not parties to the dispute with whi i" the Court is dealing in a particular case.

Before applying these principles to the particular case which i before the Court it is perhaps advisable to restate definitely th proposition that the Arbitration Court has jurisdiction to di directly with the actual matters which constitute the substa an industrial dispute - that is, the actual industrial claims made one side and refused by the other side. When the Court so d directly with such a claim actually made, by granting or re it, the question decides itself as to whether the relevant provi in the award is "relevant to the dispute" or " fairly incident | composing the difference between the parties" or " incidental" t the dispute or "within the ambit of the dispute" or " bey the ambit of the dispute." These phrases are taken from tl reasons for judgment in Australian Insurance Staffs' Federa v. Atlas Assurance Co. Ltd. (1). The members of the C differed in opinion as to the ambit of the dispute, or the of the controversy, in the case then before the Court, but accepted the general proposition that the Court could by award deal with industrial matters which were within such ambit

The dispute with which the Arbitration Court can deal and ta which it is limited is the actual industrial dispute of which it has cognizance. The acts of the parties determine the ambit of th dispute. The fact that the Arbitration Court or this Court maj consider an industrial claim to be unimportant or trifling or um has no bearing upon the actual content of the dispute or upon th jurisdiction of the Arbitration Court to deal with that claim in am award. The Arbitration Court may, because it considers th claim, though actually made, is not important or really signifi decline to include in an award any provision with respect to i But if, for reasons satisfactory to the Arbitration Court, such a clait is granted in the award, there can, in my opinion, be no V objection, upon the ground of jurisdiction, to the Arbitration Cour

(1) (1981) 45 C.LR., at pp. 417 (Gavan Duffy CS. and Starke J.), 21 (Rich J.), 428 (Dixon J.), 435 (Evatt J.), and 448 (McTiernan J.)

making such an award. The award in such a case would deal directly with an actual part of the dispute. The question of whether such a provision is appropriate for the settlement of the dispute is a question for determination by the Arbitration Court alone. I am of opinion, for the reasons stated, that the Arbitration Court has jurisdiction to make an award as to the terms of employment of non-unionists by employers between whom and a union a dispute __ relating to that subject in fact exists, whether or not those employers ' employ any unionists. The wisdom and propriety of such an award being entirely a matter for the discretion of the Arbitration Court, _ Tnow proceed to what I regard as the only further question, namely, _ whether in this case there was evidence that a dispute relating to that subject in fact existed between any and which of the unions and employers. f This is a case stated by the Commonwealth Court of Conciliation : and Arbitration under sec. 31 of the Commonwealth Conciliation and Arbitration Act 1904-1934 for the opinion of the High Court. The questions arise in the matter of industrial disputes between the _ Metal Trades Employers Association and its members and other employers in the engineering and metal trades industries on the one hand, and a number of industrial organizations of employees on the other hand. The employers' claim contained the following clause : - " Clause 20. - This award shall come into operation on the first day of November, 1933, and shall remain in operation for a period of five years and shall be binding upon the claimant persons, firms and companies whose names are set out in the schedule | annexed hereto and their employees members of the organizations of employees whose names are set out in the schedule annexed hereto." _ Claims made by the Amalgamated Engineering Union, the Aus- tralasian Society of Engineers, the Blacksmiths Society of Austral- asia, and the Federated Society of Boilermakers Iron Shipbuilders and Structural Iron and Steel Workers of Australia, asked that the _ employers grant "to your employees" or "to your employees _ whether members of the union or not" certain wages and working conditions. In the case of the Federated Moulders (Metals) Union of Australia the claims were headed : - *' General Log of Wages and _ Conditions of Employment : - 1. Wages. - The minimum rate of

Merat TRADES EmpLoyers ASSOCIATION v. AMAL- GAMATED EnGrveer- ine Unton.

Mera Trapes EmpLoyers ASSOCIATION v Amar GAMATED ENGINEER- tye Unton.

pay to be paid by any respondent to employees shall be as follow [Here follows a table of classifications of employees and m rates claimed for such classifications respectively.] The ¢ when served were accompanied by a letter from the union in following terms, so far as is now relevant: "I am directed byt Federal Council of the above union to respectfully request you grant to them improvements in the working conditions as contain in the log of wages and working conditions enclosed herewith." 1 claims made by the Electrical Trades Union of Australia, the She Metal Workers Industrial Union of Australia and the Federats Iron Workers Association of Australia did not refer to wag &c. of persons who were not members of the unions. Emp! in South Australia were served with the claims of the first fi mentioned unions, but, except for what is stated to be a "limited extent, if at all," they are not themselves claimants in industrial dispute pending in the Arbitration Court.

employer respondents in South Australia had not at any time employed any member of the claimant organizations. Couns for a large number of employers in the State of South Australi parties to the said dispute, objected that the Court had no juri

diction to make an award binding upon employers in respect of employees not members of the organization or organizations by which claims had been served upon such employers. This cor tion was-supported in the Court also by the State of South Aust (intervening) and the Federated Iron Workers Association ani Electrical Trades Union. Other unions concerned were not re sented upon the hearing of the case stated. The contrary view

Commonwealth (intervening). Employers in the States of South Wales, Victoria and Tasmania consented to an award made so as to be binding upon employers as to employees wh members of the unions or not.

The question which is submitted for the opinion of the Court is as follows : - Has the Commonwealth Court of Concili

far as it relates to matters raised in the claims of - (i) The Am gamated Engineering Union; (ii) The Australasian Society ©

Engineers ; (iii) The Blacksmiths Society of Australasia ; (iv) The Federated Society of Boilermakers Iron Shipbuilders and Structural Tron and Steel Workers of Australia; (v) The Federated Moulders _ (Metals) Union of Australia ; shall be binding in the State of South ' Australia upon employers in respect of employees not members of either of the said organizations of employees (a) where such ; employers do not at any material time employ members of the ; relevant organization of employees; (b) where such employers _ do employ members of the relevant organization of employees." ~ Inthe case of the Moulders Union neither the employers nor the

employees made any claim which brought into dispute the wages

&e. of non-members of the union. The employers clearly made ~ no such claim and the letter from the union stated that the Federal Council of Union requested " you to grant to them " improvements _ &e. The fair construction of this phrase limits it to a claim made in relation to improvements &c. for members of the union. In

_ the case of the matters raised in the claims of the Moulders Union the question should accordingly be answered in the negative. In

the case of the other four unions mentioned in the questions, the rates of pay, working conditions &c. of non-members of the respective unions were matters in dispute between the parties, and, for the reasons stated in the earlier part of this judgment, the answers should be in the affirmative.

The question in my opinion should be answered in the following manner : - As to matters raised in the claims of (i) The Amalgamated Engineering Union; (ii) The Australasian Society of Engineers ; (iii) The Blacksmiths Society of Australasia; (iv) The Federated Society of Boilermakers Iron Shipbuilders and Structural Iron and Steel Workers of Australia, in case (a): Yes; in case (b): Yes. As to matters raised in the claims of (v) The Federated Moulders (Metals) Union of Australia, in case (a): No; in case (b): No.

Ric anp Evarr JJ. This is a case stated under sec. 31 (2) of : the Commonwealth Conciliation and Arbitration Act, which enables the Arbitration Court, as to any question of law arising in proceed- _ ings before it, to seek the opinion of the High Court.

Merat TRADES EMPLOYERS ASsOcrATION v. AmaL- GAMATED ENGINEER- rye Unton.

H.C.or4. Jt appears from the case that Judge Beeby had cogni:

ain a number of industrial disputes in the metal trades throug

Mesrat Australia, and that, in relation to each dispute, a question as Ewrrovers the Court's jurisdiction has been raised by certain employers in t ASSOCIATION State of South Australia.

AmaL- The question of jurisdiction, as asked by Judge Beeby, is

GAMATED Eyerxrer- follows : - '' Has the Commonwealth Court of Conciliation rye Unto.

_ - ~ Arbitration jurisdiction to prescribe that the said award in so jhat's. as it relates to matters raised in the claims of - (i) The Amalga Engineering Union; (ii) The Australasian Society of En (iii) The Blacksmiths Society of Australasia ; (iv) The Fed Society of Boilermakers Iron Shipbuilders and Structural Iron a Steel Workers of Australia; (iv) The Federated Moulders (I Union of Australia - shall be binding in the State of South Au upon employers in respect of employees not members of eith the said organizations of employees (a) where such employ: not at any material time employ members of the relevant organiza of employees ; (b) where such employers do employ members relevant organization of employees." It is to be noted that, in the case of the first four of the f organizations of employees specified in the above question, e organization, in making demands upon the employers throu Australia, including employers in South Australia, also deman that the wages and working conditions specified in the log s apply to " all persons employed by " the employer. The fair inte ment of the demand is that each organization was insisting improved wages and working conditions should be granted by specified employer to all his employees, whether such emplo were members of the organization or not. Such demand was mad

Moulders Union, the log of demands cannot fairly be construed | containing a demand upon the specified employers that the and conditions asked for in the log should be granted to those were not members of the union, for, prima facie, demands by eg

. construed as being made only in the direct interests of those who 'are, or may become, members thereof.

The question asked by Judge Beeby relates to " jurisdiction" in a general way. It is clear that the jurisdiction of the Arbitration Court to prescribe in the manner set out in the question may be defeated on several grounds. One possible ground for denying jurisdiction is the absence of any real or genuine dispute as to whether the specified employers should concede to non-unionists the wages and industrial conditions demanded by the organizations. Under certain circumstances, it might be proved that neither the organization nor its members really desired that the demand for uniformity should be acceded to. But such a question of reality of dispute, usually one of fact, not law, does not arise for our consideration on the present

• case, where it is expressly said that "the existence of industrial disputes extending beyond the limits of any one State on all matters taised in the said claims was not denied by any party represented before the Court." Indeed, the whole framework of the case is clearly intended to exclude any debate as to whether that part of the log of demands which requires of the employers that they should concede the wages and conditions to non-unionists has been genuinely vanced. If so, such demand, having been refused, is necessarily a part of the subject matter of dispute between the parties.

_ It is now apparent that two questions of law emerge for our con- sideration in answering the one question of jurisdiction. The first question is whether the five logs of demands made by the respective organizations of employees, and in relation to which the disputes ame into existence, included a demand that the employers who were served with the log should apply to non-unionists employed by them the same wages and conditions as were demanded in the case of unionists. This question has already been discussed. It is plain from a consideration of the five logs that, in the case of the four organizations first mentioned in the question asked, the logs, and therefore the industrial disputes, extended so as to cover such a demand, whereas, in the case of the fifth organization, the log did not so extend. This conclusion makes a negative answer neces- sary in the case of the claims made by the Moulders' Union, because, ifa registered organization desires that specified wages and conditions

H.C. or A. should be applied in a trade or an industry as a standard neon and not merely for its own members, it should be expected t

Merat its demands in sufficiently wide terms to secure that result; ¢ maenras in the absence of a log sufficiently comprehensive for such a pu ASSOCIATION the Arbitration Court has no jurisdiction to include a clause

Ama i -unioni u Bera award compelling employers to apply to non-unionists the

gil, a relation, however, to the claims of the first four organi:

Eva's. specified in the question, the second question of law arises. general importance, because it involves a reconsideration principles applied by three of the six Justices who decided y known as Alderdice's Case (1). Owing to the differences of opin tevealed in that case, the question should be considered anew.

The question may be posited as follows: - Where a g

following upon demands made by (A) a registered organiza employees, the membership of which covers an industry, portion thereof, upon (B) specified employers or a registered o1 tion of employers engaged in or covering the same industry, or portion thereof, the demands, including a demand that ( specified employers or the members of the registered organ of employers should accord to non-members of the organizat employees the same wages and conditions as are being demanded relation to members of the organization, does the Constitution ort Commonwealth Conciliation and Arbitration Act preclude the 4 tration Court from settling that portion of the industrial which is represented by the demand (C) ?

First, let us refer to the constitutional power. By se (xxxv.) of the Constitution, the Parliament is empower legislate in relation to arbitration for the settlement of ind disputes extending beyond the limits of one State. The question which can be raised in relation to the constitutional to settle such a dispute as has been defined above is whether wh ex hypothesi, a dispute between employers and employees in 4 industry ceases to be " industrial" merely because the emplo require that the employers shall observe certain wages and con

in the employment not only of employees, parties to the dispute, but of employees who are not parties to the dispute, but are employed in the same industry. The practical interest of unionist employees n making such a demand is obvious. It is not made from motives

of altruism, but for two important reasons of material interest. In the first place, if the employer is allowed to employ non-unionists at lower wages than in the case of unionists, there will be a direct inducement to the employer to employ the cheaper class of labour, to dispense with, or not engage at all, the services of unionists. In the second place, the economic result of differing standards of vages for employees engaged in similar work in the same trade or industry is a powerful tendency towards the general adoption of the lower standard, because, under modern conditions of easy communication between all parts of industry, the tendency of the wages standard is to reach the lower level. Both these results of a To er wage for non-unionists are, or may be, disastrous to the union nd its members, and may tend to produce great dissatisfaction and discontent. It is difficult to see why, in insisting upon the one standard throughout the industry, the unionists are not precipitating a dispute which is essentially "industrial" in character. The and of the unionists may be considered unreasonable by an

rhole or in part, or refuse it altogether. If the dispute is not "industrial," what kind of dispute is it? It is not a dispute as to al, political, religious, moral, business, literary, artistic, scientific, omestic, or sporting matters. It arises from demands by an

ganization of employees in an industry upon employers in the e industry. It relates to what is to be done by such employers reference to other employees doing similar work in the same dustry. It has come into existence because the unionists either |, or suppose that they will, be adversely affected if their union wage standard is not adhered to by all the employers upon whom they are making their demands. Whether such a dispute is wise or unwise in genesis, it is, in all respects, " industrial" in nature and character. Instances of similar disputes may be found in the

"Master Carriers Association of New South Wales (2). Similar

history of trade unionism, and some are conveniently collecta Federated Clothing Trades of the Commonwealth of Australia y. 4 (1), in the judgment of Isaacs and Rich JJ. An illustration industrial dispute between a union and an association of emp which was settled by an award containing a clause of equ pay for unionists and non-unionists employed together is ref to in Trolly, Draymen and Carters Union of Sydney and Suburt

Nor does the fact that the demand made by the unionists exte to the case of employers who do not employ unionists at all, prev the creation of an industrial dispute upon the subject matter of terms and conditions which should be observed by such omy in employing such non-unionists. In such cases, the union ] an 'equally direct concern in removing the obstacles to the empl ment of its own members and to the maintenance and prote the union standard of wages, even although the removal of st obstacle by the granting of the demand will incidentally persons, non-unionists, who are not parties to the dispute, b terms of whose employment by their employers (parties dispute) is the subject matter of the industrial dispute. In this res the present case is a fortiori to that of Burwood Cinema Lid. Australian Theatrical and Amusement Employees' Association | because there the industrial dispute in question related to wl was to be done, not immediately, but in the future, in respect those employees who might subsequently be members of the cl organization. In the present case the dispute between the org tion and those employers in South Australia who do not em members of the organization, is as to the present conduct of

because the organization desires to avoid the present and imm« harm, both material and economic, to its members, if the emp in question will not observe the union standard of wages a ditions.

In such a case as we are considering at the moment - employers who do not employ members of the union - it is obvl

(1) (1919) 27 C.L.R., at pp. 212-214. (2) (1905) 2 C.L.R. 509, at p. 51K (3) (1925) 35 C.L.R. 528.

union demands preference of employment for its members or that ill the non-unionists shall be dismissed, and only unionists employed. Tf such a demand were refused, an industrial dispute would be created as to the subject matter mentioned, even although the ms of the Commonwealth Conciliation and Arbitration Act may preclude the Court from making an award in the absolute terms of

shows clearly that the subject matter of a demand may create an industrial dispute between the union and employers who, by accident or design, employ non-unionists only. If it is closely examined, the demand in the present case is a less stringent demand than that of preference to unionists. The practice of the Commonwealth Arbitration Court seems to have been not to give preference to unionists except in special cases. Knowing this, a union may well be lisposed to say : - "' We are aware that we are unlikely to persuade the employers to grant preference to our members. But we shall least demand this, that industrial conditions which are operating as a permanent discrimination against our members shall be termin- The lower non-unionist standard of wages and conditions so operates that, in many cases, it is impossible for our members to be employed at all, and the lower standard also threatens the existence of the higher union standard. We shall insist upon these employers abandoning the lower non-union standard."" "Such a demand may be regarded as unreasonable, but the only uestion is whether the union can be regarded as asserting it in the iterests of its members. In whose interests is it made if not in the iterests of the union and its members ? _ Itshould therefore be held that the Constitution does not preclude e Court from settling that part of an industrial dispute, otherwise within its jurisdiction, which relates to a demand that specified employers shall pay, to non-unionists as well as unionists, the wages out in the log. The next question is whether the Commonwealth Conciliation and itvation Act itself has provided for the exclusion of such a matter m the jurisdiction of the Court so that the Court cannot proceed to such portion, and such portion only, of an industrial dispute.

the demand mentioned. And the instance of preference to unionists -

Mera TRADES EmpLoyers ASSOCIATION v. AmaAL- GAMATED ENGINEER- inc Unton.

In Alderdice's Case (1) Knox C.J., Gavan Duffy and Starke J expressed the view that the Act itself presents an obstacle t exercise of such a jurisdiction by the Court. In that case i said that "clear words would be necessary in the Arbitration A to endow the Court with powers and authority to specify the of employers to employees who are not parties to the indu dispute before the Court, nor members of nor represented by th organization making the claim" (2). With all respect, one wo prefer to say that if what would ordinarily be regarded as ¢ " industrial dispute " does include a dispute between employers an employees as to the observance by employers in the industry of th union standard of wages and conditions with respect to all pe employed, clear words in the Act should be discovered before it determined that such part of an industrial dispute, and such pa alone, cannot be dealt with by conciliation and arbitration, althoug gravely threatening the peace of an industry.

After stating the principle in the words quoted, the le Justices proceed : - " Nowhere in the Act are any such words to] found: always the power is to settle some dispute in which parties are more or less defined or capable of definition (cf. sec 16, 18, 19, 198, 23, 24, 26, 27, 29, 32, 37, 38 (i), (), () z a 48), and to we orders and. awards with meeps to the reciproe:

that dispute " (2). Again we are unable to agree. All the sections of the Act ref 1 to indicate, it is true, that the Court should endeavour to set an agreement between the parties to the dispute and, if it fa do so, should settle it. Of course this means as between the The sections referred to are, in the main, not concerned with subject matter of the dispute between the parties. But sec. 24 (2) makes it clear that what is called "the whole of the dispute," and not merely a part of it, must be settled. However, it is to s of the Act that one has to turn in order to ascertain the leg intent as to whether any subject matter of dispute is to be de excluded from the jurisdiction of the Court. When we tum te sec. 4 we find that " industrial dispute " includes any dispute as

(1) (1928) 41 C.L.R., at pp. 411,435. (2) (1928) 41 C.LR., at p.

"industrial matters." The latter phrase is defined in the widest _ possible terms. It includes all matters relating to wages and con-

ditions of employment and non-employment, and indeed, "all matters pertaining to the relations of employers and employees." It is not possible so to confine or "read down" these sweeping words

describing possible subject matters of dispute that they will not include the important question whether employees in the same industry should receive the same wages and conditions without discrimination or differentiation upon the ground of union member- ship. Such a matter is of great moment to the unions and its

members, and, if it chooses to dispute upon the matter, the dispute is "industrial " in character.

As the Court is overruling the reasons of three of the Justices in Alderdice's Case (1), it is proper to refer to several other matters. The validity of that reasoning has long been subject to question. The reasons were not the ratio decidendi of the order made by the Court. The decision was pronounced in 1928, but, soon after, in 1929, it was apparent that no other Justice was prepared to accept | the reasoning as decisive (Amalgamated Clothing and Allied Trades

Union of Australia v. D. E. Arnall & Sons ; In re American Dry | Cleaning Co. (2)). Recently, the case of Long v. Chubbs Aus-

tralian Co. Ltd. (3) showed that there is no inherent constitutional incapacity in the Arbitration Court to settle a dispute between Ps union and specified employers as to the conditions of apprentices

employed by such employers, whether such apprentices are mem- bers of the union or not. In Long's Case (3) the Court found

an express indication in the Act that such a dispute was included

within its purview. But, if it is also included, as it must be, in _ the denotation of "industrial dispute " in sec. 51 (xxxv.) of the Con- _ titution, it is strong evidence that, so long asa union has a real concern in the conditions under which other persons, not members of the union, are employed by employers in the industry, an industrial dispute may arise between the union and such employers as to such conditions, and it is nothing to the point that the result of the intervention of the authority which arbitrates upon such a dispute,

H.C. or A. by awarding in favour of the union, will be to benefit person 1835; are not members of the union. From the point of view | constitutional power, Long's Case (1) is analogous to the pri Two other points may be mentioned. The first is the arg

Evarveer- rule" throughout the industry. But this is not so. The sie hoagie made, will only bind parties to the dispute. It will n

fhatis. bind, nor have any relation whatever to, employers not pa the dispute. Nor will it bind in any way those employees wh

In a properly drawn series of awards no such difficulty s arise.

Finally, it should be stated that although the conclusion rea in this opinion has involved a reconsideration of the prin involved, the powerful judgment of Isaacs J. in Alderdice's Case | may itself be accepted as an accurate statement of the legal constitutional position. .

The questions in the case stated should be answered as follows = (i) Yes, as to both (a) and (b). (ii) Yes, as to both (a) and (b) (iii) Yes, as to both (a) and (0). (iv) Yes, as to both (a) and (6) (v) No. '

Srarke J. Case stated by a Judge of the Commonwealth Cour of Conciliation and Arbitration pursuant to sec. 31 of the Com wealth Conciliation and Arbitration Act 1904-1934. Several o tions registered under the Act served upon employers in the of New South Wales, Victoria, South Australia and Tasman what are called logs of wages and working conditions for all p

(1) (1935) 53 C.L.R. 143. (2) (1928) 41 C.L.R., at pp. 411-428

employed by them in any branch of the industry mentioned in the Togs, and in one case a covering letter served with the log specifically stated that the claim was made in respect of employees whether members of the organizations or not. The question stated is whether the Commonwealth Court of Conciliation and Arbitration has juris- _ diction to make an award, in so far as it relates to matters raised by the claim, which shall be binding in the State of South Australia upon employers in respect of employees not members of any of the

claimant organizations. Admittedly, twice in this Court has the question been decided in the negative (Amalgamated Engineering Union v. Alderdice Pty. Ltd.; In re Metropolitan Gas Co. (1); Amalgamated Clothing and Allied Trades Union of Australia vy. D. _ B. Arnall & Sons ; In re American Dry Cleaning Co. (2) ). In Long y. Chubbs Australian Co. Ltd. (3) the Court did not depart, or at least ought not to have departed, from those decisions, though to my mind it is difficult to appreciate the distinction there made. But, some

/ six years having gone by since those decisions were given, the whole _ matter is again agitated and re-argued.

My opinion is, as it always has been, that the Commonwealth Court of Conciliation and Arbitration has no power under its Act to'regulate the rights and duties of an employer towards persons who are neither parties to a dispute nor members of an organization at the time of the dispute or subsequently. It is conceded that the Arbitration Court cannot make a common rule in any industry, despite the provision in sec. 38 (f) of the Act. It cannot regulate the conduct of industrial enterprises, but can only settle so much of an industrial dispute extending beyond a State as is not settled by agreement. It is the reciprocal legal or industrial relations of the parties within the ambit of the dispute that can be settled. But a provision that persons, who are not parties to the dispute, shall not be employed, or shall receive more or less wages, or be subject to more or less onerous conditions, than the parties to the dispute, is not settling the legal or industrial relations of the parties to the dispute ; it is, in substance if not in form, regulating the conduct of industrial enterprises. No rights or duties are conferred or imposed upon any

(1) (1928) 41 C-L.R. 402. (2) (1929) 43 C.L.R. 29. (3) (1935) 53 C.L.R. 143,

• decided, and the questions stated in the present case should a

person who is not a party to the dispute, and whether prejudi benefited, he is not heard upon the subject and cannot enforce g such provision. Yet such a provision, so it is contended, is industrial matter within the meaning of sec. 4 of the Commoni Conciliation and Arbitration Act. I do not agree, and for the reas given in Alderdice's Case (1) and in Arnall's Case (2), which it useless further to elaborate. In my opinion, those cases were right]

Drxon J. This is a case stated by the Commonwealth Court 0 Conciliation and Arbitration for the opinion of the High Cou under sec. 31 (2) of the Commonwealth Conciliation and Arbit Act 1904-1934.

It appears from the facts stated that four registered organizations of employees, having members employed in what is called | metal trades industry, served upon employers, whose operatio fell under that classification, logs of claims or demands for minimun wages and for conditions of employment which they demand

the limits of any one State on all matters raised by the Among the employers served with logs were some carrying operations in South Australia who employed no members of any of the four organizations of employees. These employers and s r

not members of the claimant organizations. The Court of Con tion and Arbitration has made a single comprehensive award de with these and some other disputes, but it has not yet inclu the operation of the award persons who are not members of

the organizations. The case stated submits to this Court the question whether the Court of Conciliation and Arbitration has jurisdiction to prescribe that the award, in so far as it relates to matters raised in the claims of each of the four organizations of employees, shall be binding in the State of South Australia upon employers in respect of employees not members of such organizations. The question is 'also asked in relation to a fifth body, but it may be dismissed from consideration because that organization's claim did not extend to non-members.

In my opinion the Court of Conciliation and Arbitration has no jurisdiction to include the proposed provision in its award. My opinion is based upon the incapacity of the Court under the Constitu- tion to make an industrial regulation unless it be appropriate for the settlement of an industrial dispute. I do not base it upon any limitation upon the power of the Court arising from the legislation enacted pursuant to the constitutional power. If, within the mean- ing of the Constitution, an industrial dispute could and did exist of such a nature as to call for an award restricting the freedom of disputants to employ strangers to the dispute upon what terms and conditions they pleased, I should be unable to find in the legislation anything to prevent the Court of Conciliation and Arbitration making such an award. It is right that I should state briefly why it is that I think in this respect the statute does not add to the restrictions upon the power of the Court of Conciliation and Arbitration arising from the nature of the constitutional power. But I shall first deal with the grounds upon which I have reached the conclusion that in the settlement of such a dispute as those described in the special case, it is beyond the power of that Court to make an award governing the relations which employers who do not employ members of the organization may establish with strangers to the dispute. It is, perhaps, desirable for me to say at once that I do not deny the possibility of a dispute ever arising of such a nature as to found an award requiring employers, parties to the dispute, to refrain from employing anyone, whether a member of the organization or not, except on specified terms. What I do deny is that such a dispute can arise between employers or organiza- tions of employers, on the one hand, and employees or organizations

• tion may raise a dispute with them on the subject of wages ar

• conditions upon which they may continue to employ their workm

of employees, on the other, who are not and have not been in state of actual co-operation. It is one thing to say that an or, tion of employees may, by a paper demand, raise a dispute wi employers, who do not employ its members, about the wages to] paid and the conditions to be afforded to any of its members tl may in future employ. It is quite another to say that the orga

although they do not include members of the organization and th employers have never engaged a single member of the organization It is one thing to say that an organization, whose members furnis the labour for an undertaking, may raise a dispute on the ques whether the employers conducting the undertaking shall proceed to take into their works non-unionists at lower rates of pay and on les favourable conditions. It is quite another thing to say that organization whose members furnish none of the labour for the undertaking may raise a dispute with those conducting it upon th wagesand conditions enjoyed by the members of another or; which furnishes all the labour.

These distinctions may serve to illustrate why it may be p for an award to impose upon an employer a duty of the natu have described if and when the settlement of an industrial dispu calls for such an arbitral provision. But this cannot happen unle an industrial dispute extending beyond the limits of any one arises which requires for its settlement an award constraining employers to employ strangers to the dispute, either not at all, ot upon equal conditions of pay and labour. Such an award can 0 mf be called for in cases in which the subject and nature of the di make the regulation of the relations between the employers i dispute and strangers to the dispute relevant thereto and approp! for its settlement. But, if this occurs, all the conditions are to bring the exercise of authority within the scope of the constit tional power. It is unnecessary to say in the present case whethe such a thing may occur. The question for decision is whether it has occurred. But circumstances may be imagined giving rise to a dispute which would justify an award regulating the relat which an employer in dispute may establish with strangers to

dispute. It is not difficult to conceive of a demand made upon their actual employers by a body of employees acting in concert insisting that they shall not take into their employment workmen who receive less wages or less favourable conditions of employment than they do. The causes of such a demand, no doubt, would include the fear that the maintenance of existing wages and con- ditions was threatened by the competition of non-unionists. But differential treatment of employees working side by side may provoke an unrest which is based on feelings more instinctive than reasoned but none the less real and intense. The difficulty lies not in acknow- ledging that such cases may arise but in defining them. At one extreme, it may appear to the Commonwealth Court of Conciliation and Arbitration to be imperative, in order to avert a dislocation of industry, that it should give effect to a demand on the part of the employees that some limit should be placed upon their then employer's liberty to engage non-unionists on such terms as he pleases. But it is evident that, at the other extreme, it may be no more than an expedient to overcome the want of power to make a common tule affecting employers who do not, as well as those who do, employ members of the disputant organization. This, in my opinion, cannot be done. It cannot be done for the reason that no industrial dispute could arise which would support an award prescribing the terms and conditions upon which employers, who never employ members of the disputant organization, may employ persons who are not members of that organization. An industrial dispute involves some disagreement between the co-operators in industry, whether individually, by groups, by classes, or by representation, and in such a case there is no co-operation. To me it seems something like a contradiction in terms to describe as an industrial dispute the failure to comply with a demand made by a body of employees upon an employer, who has never employed any of them, as to the terms and conditions upon which he shall employ strangers to them. No doubt the conception of industrial dispute has, under the influence of judicial

decision, undergone a process of expansion or extension. But, in my 3 opinion, no decision that has been given, and no principle that has _ been adopted so far, warrants such a consequence. A brief statement

~ Tt also decided that a formal demand for improved conditions

of the relevant steps in that development is a fitting preface to the reasons I shall give for deciding against the jurisdiction of ti Court of Conciliation and Arbitration. In The Builders' Labourers' Case (1) this Court relinqui endeavour to find in the circumstance that a dispute has | raised by an organization for the purpose of obtaining an a a reason sufficient in itself for denying that the dispute i

pay and work, if refused, affords prima facie evidence of a dis From that time the formulation of claims by registered organiza of employers became a procedure recognized as sufficient to found the Court's jurisdiction to make an award unless some parti reason appeared for saying that there could not be, or was no

organizations of employees and employers had been sustaii

Jumbunna Coal Mine, No Liability v. Victorian Coal Mi Association (2) upon the ground that they are incidental to tl power of preventing and settling industrial disputes by concilii and arbitration. They were considered so incidental because power could not be effectively exercised if individual employ only could be dealt with and if no continuing representati the employees existed who could arrive at a permanent s ment of the dispute by collective bargaining and be the me securing obedience to an award when the Court settled it; see pe O'Connor J. in the Jumbunna Coal Mine Case (3), whose judgme appears to be the source of many of the conceptions developed i the later decisions. The curious consequence has ensued organizations, existing under a law upheld on the ground that formation and registration conduced to the easier and more perm settlement by conciliation and arbitration of disputes indep

of Conciliation and Arbitration may regulate wages and of employment.

(1) (1914) 18 C.L.R. 224. (2) (1908) 6 C.L.R. 309. (3) (1908) 6 C.LR., at p. 359,

_ of demands is the doctrine that the essential quality of an industrial _ dispute is not the suspension of industrial relations but disagreement, difference, or dissidence. Thus this Court has said : - * It is established that 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 a 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. It is only because this meaning of the words 'industrial dispute' was adopted that the Court of Conciliation and Arbitration has been able to exercise the function of prescribing rates of wages and conditions of employ- ment at the instance of organizations which have done little more than formulate and deliver logs of demands with which employers have not complied " (Caledonian Collieries Ltd. v. Australasian Coal and Shale Employees' Federation [No. 1] (1) ). Conformably with the same doctrine, this Court has held that in making its awards the Court of Conciliation and Arbitration is confined to the subject matter of the dispute and cannot include in the award any term or provision which is inappropriate, or irrelevant, to the settlement of the questions at issue between the disputants (Australian Insurance Staffs' Federation v. Atlas Assurance Co. Ltd. (2); Australian Workers' Union v. Graziers' Association of New South Wales (3); Australian Tramway Employees Association v. Commissioner for Road Transport and Tramways (N.S.W.) (4) ). For some time it was considered that, when an award is made, a dispute must then exist between definite employers and definite employees, being members of the organization which purported to represent them (Holyman's Case (5) ). But the Act provided, in effect, that, given a dispute settled by award, all persons who during the currency of the award were or became

members of the organization obtaining it were bound by the award and were entitled to enforce the award (secs. 29 (d) and 44 (1), (2) (ce) ). Moreover, the Act also provided that, upon the disposition or

(1) (1930) 42 C.L.R. 527, at pp. 552, (3) (1932) 47 C. 553. (4) (1935) 53 (2) (1931) 45 C-L.R. 409. (5) (1914) 18

The foundation of the system of creating such disputes by logs H- C- or A.

• by way of conciliation and arbitration in the settlement of industr

devolution of the business of an employer bound by an award, t employer succeeding to it should also be bound (sec.29 (ba) ). ' validity of these provisions might have been sustained, pi ' as incidental to the permanent settlement of an industrial dis although such a dispute was confined to defined and ascertainable parties. In the beginning, O'Connor J. said that

disputes, it must be by bringing it to bear on representative bodi standing for groups of workmen. Further, that the represents body must have some permanent existence, irrespective of change in personnel of its members from time to time which i always going on" (Jumbunna Coal Mine Case (1)). When tl Court came to decide upon the validity of the provision e the obligation of an award to the successors in business of a disput Higgins J. upheld it upon this ground alone (George Hudson Australian Timber Workers' Union (2) ). But Isaacs J. took

trial conditions, not merely for the specific individuals then workin from the specific individuals then employing them, and not for moment only, but for the class of employees from the class

employers limited by the ambit of disturbance or dislocation af public services which has arisen or which might arise if the dem were not acceded to and observed for a period really indefini The concept looks entirely beyond the individuals who are actu fighting the battle. It is a battle by the claimants, not fo themselves alone and not as against the respondents alone, bu by the claimants so far as they represent their class, S the respondents so far as they represent their class.

If Parliament therefore chooses to include ' successors,' it may" This doctrine naturally led to the decision that an industrial dispute might arise out of a demand upon an employer by a organization none of whose members he employed (Burwood Cini Lid. v. Australian Theatrical and Amusement Employees' Associa (4) ). The demand was for a minimum wage and for w

(1) (1908) 6 CLR., at p. 452. (4) (1925) 35 C.L.R. 528.

conditions for members of the organization, and did not require the 1. elses to give the same wages and conditions to non-members. But there appears to have been a claim for preference to unionists,

although this is noticed expressly only in the judgment of Powers J. Eetoyers

(1). The reasons given by the majority of the Court for overruling " the contrary decision in Holyman's Case (2) and deciding that an

; industrial dispute might arise out of the demand by the organization

upon employers who employed none of its members deny that any "

"present relation of employer and employee need exist bet disputants and that an organization is merely an agent for its 'members. An independent capacity to dispute is ascribed to the organization as an association of employees because it represents

_a class, not a definite series of individuals ; a class the members of

which constantly change, and because the nexus or relationship

• between the employer and the association is the industry or calling.

The judgment of Starke J. begins with the following statement : -

"Industrial disputes are, as a rule, collective disputes. They may arise between two sets of workmen, as in the case of demarcation

or discipline disputes. Or, as is more common, between employers

workmen on the other. In the latter case the dispute often relates to the terms on which future employment shall be given, not only to men then employed, but to all men who may subsequently be engaged in the trade or calling in which the dispute has arisen. Thus the dispute may be whether preference shall be given by those

• employing a certain class of labour to the members, present and

x a class of employers on the one side and a large aggregation of

future, of some association of employees, or whether all members vot that association, present and future, shall, if employed, have the benefit of better terms and conditions, and so forth" (3). The decision contemplates nothing but advantages to members of the organization. If and when employed they will receive the _ minimum wage and enjoy the conditions prescribed. In these respects the obligation of an award is contingent on the employer engaging 'members. Whether preference to unionists may be awarded "against an employer who has never employed any members of the

(1) (1925) 35 C.L.R., at p. 542. (2) (1914) 18 C.L.R. 273. (3) (1925) 35 C.L.R., at p. 548,

organization is a matter the Justices do not discuss, but it w appear that Isaacs, Powers and Starke JJ. considered that it be so awarded. I do not think, however, that they can be N to have decided and certainly there is no decision of the Com

that effect. But, in any event, the question in the present: a different one. It is not whether for its own members present a future the organization can raise a dispute by demanding bene consisting of preference in employment and of a minimum wa; conditions of work if and when employed. It is whether, inde dently of the employment of any of its members, the organ can dispute with an employer in reference to the terms and conditio upon which he will employ strangers; in other words, whether

organization can obtain an award which imposes upon an emy

To sustain an award in reference to the treatment of employee are neither parties to a dispute nor members of an orga

cannot be found in the preservation of an existing state of co-ope or in the removal of a cause of apprehension among empl Because no co-operation and no employment exists in the « the organization. The only "relationship " between the orgs tion and such employers appears to be that its members are, or: be, qualified to do work which is performed in the course of op carried on by the employers. I am unable to see how a sufi dispute can arise out of a demand by such an organization. connection which this fact establishes between the organ t and the employer is notional only and must rest in supposed mutu

available at the place where the employer's undertaking is carried "on, On the other hand, the organization may relate to a calling or pursuit which plays an insignificant part in the operations of the employer. The employment of one carpenter, one blacksmith, one electrician, one caretaker, or watchman, in an undertaking concerned with altogether different industries, can hardly give organizations relating to those crafts or pursuits a title to raise disputes by demanding in each case that the one employee, although not a member, shall be paid a specified wage. Again, an organization, with no members in a particular State or city and "no branch there, can have but a remote interest in the terms and

conditions which members of another organization enjoy there. Suppose an association of little more than a hundred members _ all situated in one State makes demands throughout Australia upon employers in the industry. Or suppose such an association makes

• demands in two States upon employers in an industry governed by industrial regulations obtained by other organizations. In such eases the interest is intangible. But, in any case, the interest lies at best, not in any actual industrial relationship, but in a hope, or perhaps expectation, of establishing one. I am unable to adopt the view that, because members of an organization may be qualified to perform functions in the course of the operations carried on by an

employer who in fact employs none of its members, a sufficient

• dispute can arise out of a demand by the organization with reference to the employment of strangers to the organization by an employer _ who is a stranger to it and to its members. : The disagreement as to industrial matters which is essential to _ 4 dispute involves some relation between the parties that calls for a state of agreement or accord between them. When there is a likelihood of an employer engaging members of an organization, the terms and conditions upon which he shall do so is a question that may require settlement. The contingency gives a foundation for a demand and refusal; at any rate so much is involved in the decision in the Burwood Cinema Case (1). But, when the subject is the terms and conditions of employment of non-members of an organization, it is difficult to see what basis there can be for difference,

disagreement, or dissidence, unless some circumstances exis make agreement or accord between the organization employer a condition necessary or desirable for the normal cond of some industrial operation. So far from the case stated disclosing any circumstances call

elements for such a dispute appear. There is nothing but the b request that the log shall govern the wages and working conditic of all persons employed in any branches of the named i Even in the case of employers who have in their emplo ™m members of the claimant organization, such a bare demand appes to me in itself to be insufficient evidence of jurisdiction to m award regulating the employer's relations with third parties. employer's relations with non-members become a legitimate subj of award only in so far as such a regulation fairly arises out of, is incidental to, the settlement of the mutual industrial relati the members of the organization and of the employers in dis A general request, such as that contained in the log, does not itself satisfy this requirement. The circumstances of the parti case may connect it with the subsisting industrial relations. as it stands, it is a mere general request for what may be calle common rule wherever the log is served ; a request which, so! as appears, may be independent of any situation which has a out of the employment of members of the organization.

On these grounds I would answer the questions in the case state as follows : - In relation to each of the organizations mentioned, Commonwealth Court of Conciliation and Arbitration has no j diction to prescribe that the award shall be binding in the of South Australia upon employers in respect of employees m members of any such organizations where such employers do no employ members of the relevant organization. The facts state' not show that it has any jurisdiction to do so where such employ do employ members of the relevant organization.

But, apart altogether from the reasons I have given, there is t independent contention that upon its proper interpretation

ommonwealth Conciliation and Arbitration Act 1904-1934 confines 'the awards, and the authority, of the Court, to regulating the conduct towards one another of the disputants or those represented by them, and in such a way that the employment of strangers to the dispute and the disputants cannot be made the subject of arbitral control. On the hearing of the special case this in substance was the first objection made at the Bar to an affirmative answer to the

estion submitted. In the view I have taken it is, in strictness, unnecessary for me to express my opinion upon it, but I think that desirable that I should do so. The objection is based upon the nion adopted by Knox C.J., Gavan Duffy J., as he then was, and

ty. Lid.; In re Metropolitan Gas Co. (1) and reiterated by those learned Judges in Amalgamated Clothing and Allied Trades Union of Australia v. D. E. Arnall & Sons; In ve American Dry Cleaning Co. . That opinion is expressed in the former case in the following

• • Tt is not necessary to determine what jurisdiction might be given to the Court under the terms of the Constitution, because

to employees who are not parties to the industrial dispute before the Court, nor members of nor represented by the organization making the claim. Nowhere in the Act are any such words to be found : always the power is to settle some dispute in which the parties are more or less defined or capable of definition (cf. secs. 16, 18, 19, 198, 23, 24, 26, 27, 29, 32, 37, 38 (i), (J), (p), (s), 388 and 48), and to make orders and awards with respect to the reciprocal duties and obligations of the parties appearing or represented in that dispute. 'The power in the Court to grant preference of employment to unionists 'in no wise conflicts with this view: that is a power to prescribe the tights and duties of the actual disputants as between themselves, though it may also be detrimental to the interests of others" (3).

In the latter case their Honors said that further consideration of the matter had confirmed them in the view and a request by counsel to be allowed to argue the question was refused. The Court

(1) (1928) 41 C-L.R, 402. (2) (1929) 43 C.L.R. 29. (3) (1928) 41 C.LR., at p. 435.

was composed of six members, but, as the Chief Justice's opini would prevail in the event of the other three Judges forming contrary view, no purpose could be served by hearing an argumer upon the question unless one or more of the three Justices who hi adopted the opinion was prepared to reconsider it. Isaacs J., was a member of the Bench, expressed his disagreement with it, bi Rich J. and myself, who were the other members, gave no 0 about the matter. We did, however, point out that, having to the constitution of the Court in the earlier case (1) and to tl grounds given for the decision by the other members, the reaso of Knox C.J., Gavan Duffy and Starke JJ. could not be said to} the ratio decidendi of the order made by the Court. In stating tl we refrained from investigating for ourselves the correctness of thei Honors' interpretation of the statute because as their opinion mu in any event prevail it would be futile to do so, we gave as: additional reason the fact that upon the contrary interpretatir the Commonwealth Conciliation and Arbitration Act we should b faced with the formidable constitutional question whether, s interpreted, the Act was within the power of Parliament. having now considered the question, I have come to the clear op that the contrary interpretation of the Act is correct. I do no mean that the Act contains anything which gives to any pel who is neither himself a party to the dispute nor a member organization which is a party, any private right to the enjoym

Conciliation and Arbitration, an award is called for imposing a party to the dispute duties the fulfilment of which involv benefit to such a person, there is, in my opinion, nothing in th statute disabling the Court from so awarding and no presumy against giving to the general words, by which its power to s disputes within its cognizance and to determine them by av conferred, an operation wide enough to enable it to do so. Su employees in two States ceased work for the purpose of enforei an objection to a practice on the part of their actual employ taking into their service persons whose labour is obtainable at

or upon terms or conditions which the employees regard as subversive

• or destructive of those which otherwise are enjoyed in the industry. The subject of the dispute would be, I think, an industrial matter within the natural meaning of that expression. But, further, the words "industrial matters" are defined to include a lengthy list of particular matters many of which would in themselves cover it. There is nothing to restrict the subjects of disputes which fall within the jurisdiction given by sec. 18 and within the cognizance of the Court under sec. 19. If the Court considered that to settle such a dispute it was desirable to require the employers to discontinue the practice and to give all employees the same or similar rates of _ pay and terms and conditions of employment, its statutory powers are wide enough to make an award doing so. It may well be that persons who are not members of the organization disputing and who did not themselves dispute would obtain no rights under the award and could not enforce any of the duties it imposed. The _ reason for the award would be to compose the difference between
• the disputants, and it would be an award " with respect to reciprocal ; duties and obligations of the parties appearing or represented in f that dispute." But one of the reciprocal duties would be to employ strangers only on the same terms as those parties. The question is
• entirely one of statutory construction. It relates to the limitations

thought to be imposed by the Act of Parliament upon the powers _ of the Commonwealth Court of Conciliation and Arbitration. Those "imitations were ascribed to an implied intention either discoverable

in the frame of the legislation or to be presumed. They were in no _ way attributed to the nature or ambit of the legislative power. In

Long vy. Chubbs Australian Co. Ltd. (1) the Court saw in the statute _ positive indications that it contemplated the regulation of apprentice- : ship by the Commonwealth Court of Conciliation and Arbitration.

Accordingly, because the view expressed by Knox C.J., Gavan Duffy

and Starke JJ. (2) was based upon an implication or presumption _of statutory interpretation, the Court thought that, quite consistently with that view, it might decide that in the special case of apprentices the supposed statutory obstacle was negatived, without considering whether it existed in other cases. But, in my opinion, there is no

(1) (1935) 53 C.L.R. 143. (2) (1928) 41 C.L.R. 402. VOL. Liv. 29

Meran TRADES: EMPLOYERS ASSOCIATION v. AMAL- GAMATED ENGINEER- inc Unton.

Merau TRADES Employers ASSOCIATION v AMAL- GAMATED ENGINEER- ine Unton.

such obstacle discoverable in the legislation. I, therefore, d base my conclusion upon the provisions of the Commo Conciliation and Arbitration Act 1904-1934, but upon the limita arising from sec. 51 (xxxv.) of the Constitution.

McTiernan J. Demands were severally made by a number o the organizations of employees whose names are in the title of #l case, upon the employers in the industries in which their meml were working, to grant all their employees in such industries re tively, whether members of the organization making the demar or not, specified wages and conditions of employment. In son cases a demand was made by an organization on employers did not have, and at no material time have had, any members of the organization in their employment. In other cases the employer had in their employment both members and non-members of organization making the demand. The question arises, wht the Commonwealth Court of Conciliation and Arbitration, in pro ings which have ensued following upon the non-compliance of th employers with these demands, can by award impose an obligati upon employers in either or both of the last above-mentioned to pay the rate of wages and grant the conditions prescribed by th award, to employees who are not members of any of the organiza tions respectively making the demands. All the organizations, and

the Commonwealth Conciliation and Arbitration Act, of all " indus disputes " (sec. 18). An " industrial dispute" means an indi dispute extending beyond the limits of any one State, and inclu inter alia, any dispute as to " industrial matters " (sec. 4). No

Counsel who challenged the jurisdiction of the Court to mak the proposed award relied upon Alderdice's Case (1) and 4 Case (2); counsel who supported the jurisdiction of the Cou relied upon Long v. Chubbs Australian Co. Ltd. (3). The view wi

(1) (1928) 41 C.L.R. 402. (2) (1929) 43 CLR. 20. (3) (1935) 53 C.L.R. 143. 7

Birevailed i in Arnall's Case (1) was founded on the following passage H- ©. oF A- in the judgment of Gavan Duffy J. (as he then was) and Starke J. we

in Alderdice's Case (2) : - ''It is not necessary to determine what fee 4 . iS jurisdiction might be given to the Court under the terms of the aaa

Constitution, because clear words would be necessary in the Arbitra- eh

tion Act to endow the Court with powers and authority to specify canary

the duty of employers to employees who are not parties to the industrial dispute before the Court, nor members of nor represented by the organization making the claim." This judgment, with which

• Knox C.J. agreed (3), also declared : - ' The power in the Court 'to grant preference of employment to unionists in no wise conflicts with this view: that is a power to prescribe the rights and duties of the actual disputants as between themselves, though it may also be detrimental to the interests of others" (2). In Long v. Chubbs Australian Co. Ltd. (4) it was held to be within the jurisdiction of the Court of Conciliation and Arbitration to prescribe by an award to which a union of employees and employers were parties that minors _ who were neither parties to the award nor members of the union should not be engaged by those employers in certain specified occupations, except subject to certain conditions. The authority of the Court of Conciliation and Arbitration to impose this obligation 'on employers who were parties to the award was found in the 'definition of industrial dispute and the reference to apprenticeship insec. 25c. The part of the definition of industrial matters relied upon was as follows: "The employment . . . or non-employ- ment . . . of persons of any particular . . . age, or being

or not being members of any organization, association, or body." In

• Long v. Chubbs Australian Co. Ltd. (4) the Court therefore did not find it necessary to diverge from the principle laid down in Alderdice's i Case (5) and adopted in Arnall's Case (1), because in the provisions 7 of the Act to which it referred " clear words " may be found giving _ jurisdiction to impose the obligation upon employers with respect' to apprentices who were neither parties to the proceedings nor : members of the union.

(1) (1929) 43 CLR. 29. (3) (1928) 41 C.LR., at p. 411. (2) (1928) 41 C.L.R., at p. 435. (4) (1935) 53 C.L-R. 143. (5) (1928) 41 C.L.R. 402.

Mera TRADES Employers ASSOCIATION v AMAL- GAMATED ENGINEER- ine Unton.

In the present case we have been invited to reconsider the pri ciples laid down in Alderdice's Case (1) and Arnall's Case (2 concur in the opinions of other members of the Court that passage already quoted from Alderdice's Case (3), and which we

of Conciliation and Arbitration. The true view of the extent jurisdiction conferred by Parliament on the Court is expressed the judgment of Isaacs J. (as he then was) in Arnall's Case (4 In the Burwood Cinema Case (5) Rich J. took the view: "Th

statute, both by its general scheme and its specific language, ap} to me to deal with industrial disputes as coextensive with industris disputes in the Constitution." Hence, if the Court of Con and Arbitration has no jurisdiction to make an award binding th employers whose employees do not include any members of ano ization making a demand, it is not because the provisions of the Ac conferring jurisdiction are not wide enough to authorize the Cot : make an award restricting the freedom of the employers to m contracts with persons who are neither parties to the proceedings no members of an organization which is a party. But it is essential t the jurisdiction that the demand and refusal should have given tis to an industrial dispute. Now it is not every dispute between a and a group of employers as to the minimum rate of wages whic

jurisdiction to settle by award. For example, the refusal of a numbe of money-lenders to pay their clerks the rate of wages which a organization of shearers demanded should be paid, might produ a disagreement between these employers and the union on question, but it would not be an industrial dispute which the of Conciliation and Arbitration has jurisdiction to settle. demand does not touch or concern the interests of the mem!

(1) (1928) 41 C.L.R. 402. (3) (1928) 41 C.L.R., at p. 435. (2) (1929) 43 C.L.R. 29. (4) (1929) 43 C.LR., at pp. 45, 46 (5) (1925) 35 C.L.R., at p. 547.

the organization as employees. The dispute could not be said to e out of an industrial relationship between the shearers' union and the money-lenders.

Tn the present case the demands, which were not complied with by the employers, were made by the union on behalf of employees in the same industrial occupation or calling as the non-unionist employees. The primary object of each union in making the id was to obtain benefits for its members as employees in the lustry in which they were working. In the Burwood Cinema Case (1) Isaacs J. stated the question which arose for decision in these "The question is whether, upon the true construction of he Constitution and the Commonwealth Conciliation and Arbitration _ Act, an employer who employs no union labour whatever can be a y to an 'industrial dispute ' with an organization of employees, or whether by simply refusing to employ a single unionist he can, far as his industrial operations are concerned, entirely exclude the Federal power." The Court held that such an employer could be a party to an industrial dispute. In that case it does not appear at the organization did more than to demand of the employers the rates and conditions should be granted to members of the ation. In my opinion it needs no extension of the principle that case to answer the questions in the present case in the affirma- tive. For, as Starke J. said in the Burwood Cinema Case (2), "an industrial dispute is constituted, both historically and in point of , where a difference exists between workmen themselves, or perhaps between employers themselves, or between employers or of employers, and workmen engaged in some common dustry or calling, concerning industrial conditions afiecting a lass so engaged and not merely affecting individual and definite members thereof. An industrial relationship, and not a contractual elationship, is all that is necessary to constitute an industrial dispute. Che nexus is to be found in the industry or in the calling or avocation in which the participators are engaged." Again, Isaacs J. (as he then was) said : - ' ' Industrial disputes ' certainly include conflicts 7 of greater or less intensity among those co-operating in a given

(1) (1925) 35 C.LR., at pp. 535, 536. (2) (1925) 35 C.L.R., at pp. 548, 549.

Merau TRADES EMPLOYERS ASSOCIATION v% AMAL- GAMATED ENGINEER- inc Union.

H.C.orA industry with reference to the conditions of their co-oper

Ree 'Co-operation' in the industry is not from the standpoint of

Mera Constitution restricted to actual contractual relations.

ped employer that enters the competitive field of the indu t

ASSOCIATION ¢0-operating to carry it on, in the broader sense in which the p

Amat- of the Commonwealth are interested. That sense is national GAMATED

Eyerserr- and supply, the interruption of which is the evil dealt with

xxxv. So also is every employee a co-operator in the same s for his labour is not to be looked on as a mere commodity, as were a machine, animate like the horse or inanimate like a s engine. The nexus of all the co-operators is the industry irrespective of how its ownership or its operative arrangements a subdivided. If we confine our attention for the moment to d

'Employer ' and ' employee ' are terms which denote, not individus contracting with each other whose industrial relations arise 0

a union of employees or not, are associated through the ind with the union and its members. This industrial relationship e

between those employers, their employees, the members of #l union and their employers. The union and its members have interest depending on their connection with the industry, in # settlement of the rate of wages and conditions of employ which should be provided for in the agreements of the em even those who employ only non-unionists, with all employees exercise in the industry the trades and industrial avocations by members of the union. The interest of the unionists properly give rise to a demand by them for specified rates al conditions to be granted to all employees, both unionists and non-unionists, so that the former will not be excluded from industry or the latter preferred when employees are being e

discharged. The employers have an interest residing in their icipation in the industry in the maintenance of their right to we non-unionist employees on their own terms rather than on terms demanded by the union whose members are employed in the industry. Employers who give the same rates of pay and conditions of employment to both unionists and non-unionists have material industrial interest in the observance by other employers the industry of a similar practice in case of employees following trades or industrial avocations. Refusal to comply with demands directed to the maintenance of these respective interests ks the outbreak of conflict between them, and shows that there disagreement between union and employers or between employers and employers, as the case may be, as to which of these respective ndustrial interests should prevail or as to the terms upon which they should be reconciled. It follows that the disagreement is as industrial matters and non-compliance with any such demand ives rise to an industrial dispute. This dispute relates to industrial 'matters and is an industrial dispute within the meaning of the Act. Tt follows that, for the settlement of that dispute, the Court of neiliation and Arbitration may make an award imposing restric- ons, which are appropriate and relevant to the settlement, upon the freedom of the employers to engage non-unionists upon any terms to wages and conditions of employment which might otherwise be eed between them. The award would not give any rights to the unionists: it would create duties in the employers, who do not employ any unionists, to the union and its members. An ative answer to the questions in the case neither involves a h of the principle of arbitration as embodied in the Act, nor S$ any power in the Court to make a common rule (see Long v. Chubbs Australian Co. Ltd. (1) ). In the case of the Federated Moulders (Metals) Union of Australia, e claim is upon its fair construction limited to the members of e union. In this case the questions should be answered: No, t in all the other cases the answer to both questions should be:

Merau TRADES: EMPLOYERS Association v AmaL- GAMATED ENGINEER- ina Unron.

444 HIGH COURT ' i H.C. or A. Questions answered as follows : - (i.), (ii. eon (iv.) - In case (a): Yes ; In case (b): Yi Mera (v.) - In case (a): No; In case (b):. rior No order as to costs. ASSOCIATION v. AmaL- Solicitors for South Australian employers, Baker, McEy GAMATED :

Enererr- Ligertwood & Millhouse. ixa UNt0N. - G dicitor for the State of South Australia, A. J. Hannan, Solicitor for South Australia.

Solicitors for the Metal Trades Employers Association and |

Solicitors for the Federated Ironworkers' Association and t

Solicitor for the Commonwealth, W. H. Sharwood, Commonwe