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

Metal Trades Employers Association Claimants; and Amalgamated Engineering Union Claimants and [1935] HCA 79 - HCA 1935 case summary — Zoe

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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

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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

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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

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_ 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

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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

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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:

At a glance

Court

Decision date

Before

Source

Judgment (345 paragraphs)