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[1984] HCA 9
High Court of Australia
1984-07-01
Dawson JJ, Murphy J
Original judgment source is linked above.
High Court of Australia Murphy, Wilson, Brennan, Deane and Dawson JJ. R v Bain; Ex parte Cadbury Schweppes Australia Ltd [1984] HCA 9
This is an application for a constitutional writ of prohibition directed to Mr. Commissioner Bain of the Australian Conciliation and Arbitration Commission, to prevent him from proceeding further on an application to certify a memorandum of agreement under s. 28 of the Conciliation and Arbitration Act 1904 (the Act). Section 28, so far as it is relevant, provides:
(1) If, before an industrial dispute has been referred to arbitration in accordance with this Act, the parties to the dispute or any of them reach agreement on terms for the settlement of all or any of the matters in dispute, they may either -
(a) make a memorandum of the terms agreed on and request a member of the Commission to certify the memorandum; or
(b) request a member of the Commission to make an award or order giving effect to their agreement.
(2) a member of the Commission shall not refuse to certify a memorandum or make an award or order in accordance with this section unless he is of the opinion that -
(a) the terms are not in settlement of an industrial dispute.
(a) a dispute (including a threatened, impending or probable dispute) as to industrial matters which extends beyond the limits of any one State; and
(b) a situation which is likely to give rise to a dispute as to industrial matters which so extends.
The memorandum was of an agreement between the Federated Confectioners Association of Australia ("the Association"), a registered organization of employees and A. W. Allen Ltd. ("Allen Ltd.") and its wholly owned subsidiary company Australian Licorice Pty. Ltd. ("Australian Licorice"), the employer parties. The relevant provisions of the memorandum were:
The Association, Allen Ltd., Australian Licorice and Cadbury Schweppes Pty. Ltd. ("Cadbury Schweppes") were parties to the Confectioners Award 1980 ("the Award"). Clause 44 of the Award reserved leave for the parties to raise, amongst other matters, "redundancy".
Cadbury Schweppes Australia Ltd. ("Cadbury Australia") was concerned, as a shareholder in Allens Confectionery Ltd. (the company wholly owning Allen Ltd.), that the memorandum gave the Association an effective veto, by withholding agreement, over any decision by Allen Ltd. to dismiss any employee. Cadbury Schweppes being in the same industry as Allen Ltd., claimed the memorandum could be viewed as an industrial precedent by the Association and its members employed by Cadbury Schweppes. Counsel for the prosecutors conceded that a letter of demand and log of claims of 28 August 1980 served on employers generally throughout Australia, created an industrial dispute extending beyond one State, which was validly settled by the Award (apart from the reservation of redundancy) but denied that the log was wide enough to justify the reservation of redundancy. Another log of 1 March 1983 concerning work only at Allens Ltd. South Melbourne plant and served only on Allen Ltd., precipitated the agreement. The prosecutor contended that this made demands confined to Victoria and could not create an industrial dispute extending beyond the limits of any one state within the meaning of the Constitution and the Act. However the respondents did not rely on the log of claims of 1 March 1983. Thus the question whether a "dispute" or a "situation" likely to give rise to an industrial dispute within s. 4 of the Act was created by that log does not call for decision.
It was conceded, correctly, that if the reservation of redundancy in cl. 44 was valid, then an award provision could properly have been made in the same terms as the memorandum, and that this application for prohibition must fail. A dispute extending beyond one State may be settled by dealing with it by arbitration on a State or regional basis (see Reg. v. Isaac; Ex parte State Electricity Commission (Vict.) [1] ). Equally such a dispute may be dealt with by conciliation on a State or regional or other fragmented basis.
In prohibition the onus is on the prosecutor to prove clearly the absence of jurisdiction in the Commission (R. v. President of the Commonwealth Court of Conciliation and Arbitration and the Merchant Service Guild of Australasia; Ex parte William Holyman and Sons Ltd. [2] ; Reg. v. Foster; Ex parte Commonwealth Life (Amalgamated) Assurances Ltd. [3] ; Reg. v. Alley; Ex parte New South Wales Plumbers and Gasfitters Employees Union [4] ; Reg. v. Cohen; Ex parte Attorney-General (Q.) [5] ).
The validity of the Award is presumed. It is presumed therefore that there was an industrial dispute within the meaning of s. 4 of the Act, i.e., an actual or potential dispute extending beyond one State which justified the Commission in reserving the matter of redundancy.
The Association contended that the industrial dispute created by the rejection of the log of claims of 28 August 1980 was sufficient to authorize the reservation of the matter of redundancy and any subsequent award or certification of agreement on that matter. It submitted that the question of redundancy was raised by provision 54 of the log which states:
Notwithstanding anything herein before claimed on individual termination of employment, in the event of closure or partial closure of an employers business or premises, the employer shall not terminate the employment of an employee except upon the grounds of serious misconduct, permanent incapacity to perform duties covered by clause 3 of this log for reasons covered elsewhere in this log for a period of five (5) years to take effect from the date upon which this log is received by the employer.
The Association also contended that cl. 1 of the memorandum was a procedure within s. 20 of the Act. Section 20 provides:
In dealing with an industrial dispute, the Commission shall, where it appears practicable and appropriate to do so, encourage the parties to agree on procedures for preventing or settling, by discussion and agreement, further disputes between the parties or any of them as to industrial matters, with a view to the agreed procedures being included in an award or in a memorandum of agreement having effect as an award. The "further disputes" mentioned need not be of the same character as the dispute then before the Commission.
The view has been taken that the process of arbitration requires a determination which is within the ambit of the dispute. But this doctrine is not to be applied rigidly; an award is authorized if it relates to the matters in dispute or is reasonably incidental to them or calculated to settle the dispute (R. v. Commonwealth Court of Conciliation and Arbitration; Ex parte Kirsch [6] , per Dixon J.; Reg. v. Galvin; Ex parte Amalgamated Engineering Union, Australian Section [7] ; Reg. v. Clarkson; Ex parte General Motors-Holden's Pty. Ltd. [8] ). But in conciliation parties may settle the dispute by an agreement which goes beyond the ambit of the dispute. It may well be that such an agreement can be given force by s. 28 of the Act (see also s. 55 of the Act).
However it is not necessary to decide these questions, nor to decide whether the prosecutors have standing. The prosecutor did not attempt to trace the course of proceedings before the Commission to prove that there were no circumstances which authorized the inclusion in the award of the reservation about redundancy. No evidence was given of the circumstances in which the Commission inserted the reservation of redundancy in the Award. The Commission has power to determine what in fact is the industrial dispute and is not circumscribed by the procedures for rejection of paper demands. Thus an industrial dispute may be diminished or ended or enlarged or altered during the course of the proceedings in the Commission (see Reg. v. Blackburn; Ex parte Transport Workers' Union of Australia [9] ; Reg. v. Commonwealth Conciliation and Arbitration Commission; Ex parte Printing Industry Employees' Union [10] ; Reg. v. Portus; Ex parte Transport Workers' Union of Australia [11] per Jacobs J.). As the evidence does not prove that there was no dispute about redundancy, the prosecutor has failed to prove the absence of jurisdiction. For this reason the application must fail.
In this matter the prosecutors seek to prohibit a member of the Australian Conciliation and Arbitration Commission from proceeding further with an application under s. 28 of the Conciliation and Arbitration Act 1904 Cth, as amended, for the certification of a memorandum of agreement between The Federated Confectioners' Association of Australia ("the Association") and two individual employers, A. W. Allen Ltd. and its subsidiary company, Australian Licorice Pty. Ltd. Under s. 28, if agreement is reached between the parties to an industrial dispute, or some of them, upon terms for the settlement of all or any of the matters in dispute, those parties may request a member of the Commission to certify a memorandum of the agreed terms. It is provided that the member shall not refuse to certify a memorandum in accordance with the section unless he is of the opinion that, amongst other things, the terms are not in settlement of an industrial dispute. In order to confine it within constitutional limits, an industrial dispute is defined in s. 4(1) of the Act as a dispute (including a threatened, impending or probable dispute) as to industrial matters which extends beyond the limits of any one State. A memorandum which is certified in accordance with s. 28 is deemed to be an award of the Commission for the purposes of the Act.
The Association, A. W. Allen Ltd., Australian Licorice Pty. Ltd. and Cadbury Schweppes Pty. Ltd. are all parties to the Confectioners' Award 1980 which was made by the Commission on 21 August 1981. That award was made in settlement of a dispute created by the service by the Association on 28 August 1980 of a log of claims upon employers generally in the confectionery industry.
A. W. Allen Ltd. is a subsidiary company of Allen's Confectionery Ltd., being wholly owned by it. Cadbury Schweppes Pty. Ltd. is a wholly owned subsidiary company of Cadbury Schweppes Australia Ltd. The latter company, together with another company, was at the relevant time beneficially entitled to a substantial number of shares in the capital of Allen's Confectionery Ltd. and had been, or was, engaged in a proposal to acquire all of the issued shares in that company.
On 4 March 1983 the Association served on A. W. Allen Ltd. alone a log of claims headed "Retrenchment - A. W. Allen Ltd.". The claims made in that log were confined to employees of A. W. Allen Ltd. at its South Melbourne plant. After negotiation an agreement was reached between the Association and A. W. Allen Ltd. "as to retrenchment and redundancy provisions to apply to members of the Federated Confectioners Association of Australia employed by A. W. Allen Ltd., 2 Byrne St. South Melbourne, A. W. Allen Ltd., Broadford and Australian Licorice Pty. Ltd., 348 Victoria Street Brunswick". The agreement was that in the event of the company's intending "to retrench and/or make redundant" any member of the Association it would not do so for any reason whatsoever until an agreement had been negotiated between the company and the Association in relation to redundancy and retrenchment provisions. Further terms of the agreement were that the parties should approach the Australian Conciliation and Arbitration Commission to have the terms of the agreement certified pursuant to s. 28 of the Conciliation and Arbitration Act and that the provisions of the agreement should operate from 29 March 1983 and remain in operation for a period of five years from that date.
The contention of the prosecutors, Cadbury Schweppes Australia Ltd. and Cadbury Schweppes Pty. Ltd., is that the original log of claims, in settlement of which the award was made, contained no claim in respect of the retrenchment or redundancy of employees and the service of that log and the failure to meet its demands failed to create any dispute about those matters. The dispute which was created by the service of that log admittedly extended beyond the limits of any one State. But if the claim by the Association against A. W. Allen Ltd. with respect to the redundancy of its employees was outside the ambit of the original dispute, having regard to the fact that it was made in Victoria against A. W. Allen Ltd. alone, it is clear that any dispute arising only from that claim was intrastate in character and was outside the jurisdiction of the Commission to prevent or settle industrial disputes extending beyond the limits of any one State.
The Association, however, maintains that the question of redundancy was raised by the original log of claims and, even if it was not, it nevertheless became part of the interstate dispute initially created by that log of claims because of a provision in the award reserving "leave" to the parties in respect of a number of matters, including redundancy. Presumably, by "leave" was meant leave to make further application to the Commission to deal with the matters.
The clause in the original log of claims upon which the Association relies is cl. 54 which is entitled "Closure of Plant" and provides:
Notwithstanding anything herein before claimed on individual termination of employment, in the event of closure or partial closure of an employers business or premises, the employer shall not terminate the employment of an employee except upon the grounds of serious misconduct, permanent incapacity to perform duties covered by clause 3 of this log for reasons covered elsewhere in this log for a period of five (5) years to take effect from the date upon which this log is received by the employer.
All employers shall, subject to this clause, or unless the employee otherwise agrees be continued in employment by the company in the same city, town or locality without reduction in salary or demotion in grade or classification.
There are difficulties in the construction of cl. 54. The latter part of the expression "upon the grounds of serious misconduct, permanent incapacity to perform duties covered by clause 3 of this log for reasons covered elsewhere in this log" is not easy to understand unless, perhaps, the words "for reasons covered elsewhere in this log" should read "or reasons covered elsewhere in this log" should read "or reasons covered elsewhere in this log". Also, cl. 3 of the log to which cl. 54 refers deals with wages and not duties at cl. 54 seems to suppose. Notwithstanding these difficulties of construction, it is clear that if cl. 54 is directed at all to retrenchment upon redundancy, it is only in the limited circumstances of the closure of partial closure of an employer's business or premises. Moreover, the clause is to have an operation for a period of five years from the date of service of the log. Although the date of service is not precisely known, it is common ground that it was about the date which the log bears, namely, 28 August 1980.
Even upon the assumption that cl. 54 deals with retrenchment and redundancy, the agreement which the parties are seeking to have certified pursuant to s. 28 of the Act travels well beyond the limits of that clause. The agreement applies whether or not there is a closure or partial closure of the employer's business or premises. It contains no exception where employment is terminated upon the grounds of serious misconduct or permanent incapacity to perform duties or the like, although it may be conceded that it is arguable whether termination of employment for these reasons may be properly described as retrenchment upon redundancy. Clause 54 makes a claim for a provision limited in duration to a period of five years from the service of the log of claims, whereas the agreement is to operate for a period ending on 29 March 1988.
In compliance with the constitutional requirement, the powers of the Commission depend upon the existence of an industrial dispute, actual or in prospect, which extends beyond the limits of any one State. This is reflected in s. 24 of the Conciliation and Arbitration Act which requires the Commission to determine in proceedings before it whether there is an industrial dispute as defined. A line must therefore be drawn between interstate disputes and those which are confined to one State, the Commission being able to exercise its powers in relation to the former and not in relation to the latter. The first step in drawing such a line must necessarily be to define the ambit of the dispute by determining what it is about. That task has been made easier, if somewhat more artificial, by the adoption of the practice of serving a log of claims which, if not met, will mark the limits of the dispute. If the log of claims is served upon parties in more than one State, the failure to meet the claims will provide the necessary interstate element because it has been accepted that concurrent disagreement in two States between independent sets of parties in industrial relations satisfies that requirement. See Australian Insurance Staffs' Federation v. Atlas Assurance Co. Ltd. [12] , per Rich J. Although a log of claims is not to be construed with that degree of strictness which is reserved for a formal legal document (see Reg. v. Clarkson; Ex parte General Motors-Holden's Pty. Ltd. [13] , per Mason J.), nevertheless its construction is an exercise capable of producing a precise result. As Latham C.J. pointed out in R. v. Commonwealth Court of Conciliation and Arbitration; Ex parte Kirsch [14] , the purpose of creating a paper dispute is to define and identify the matters in dispute in order that the Commission may have jurisdiction to deal with them.
The definition of the dispute in this manner has the effect of confining the relief which can be given by the Commission by way of award or, as in this case, by way of certification of an agreement so as to give it the effect of an award. The award must be made in settlement of the dispute created and cannot be made in settlement of some other dispute in respect of which the Commission lacks power, as, for instance, where the dispute does not extend beyond one State. And this is so whether or not the other dispute flows from the dispute which is specifically created. This is not to say that the award must adhere to the remedy or relief claimed, but it does mean that the relief must be reasonably incidental to the settlement of the defined dispute. See Reg. v. Galvin; Ex parte Amalgamated Engineering Union, Australian Section [15] ; Reg. v. Holmes; Ex parte Victorian Employers' Federation [16] .
In some cases there may be difficulty in determining whether a provision of an award can be said to be in settlement of a particular dispute, but that difficulty is the less where the dispute is a paper one and the relevant claim is limited by reference to amount or the duration of the remedy sought or some other specific criterion. See R. v. Commonwealth Court of Conciliation and Arbitration; Ex parte Whybrow & Co. [17] . In such a case, although the demand may be as wide as the party making it may please, the award may not exceed the maximum or minimum limit which the demand sets.
In this case, the clause in the log of claims upon which the Association relies is cl. 54. That clause, even if it relates to redundancy, limits the demand which it makes to a particular set of circumstances, namely, the closure or partial closure of an employer's business or premises and limits the period of the provision demanded to five years. The agreement for which certification is sought observes neither of these limitations and, in our view, it is clearly beyond the power of the respondent Commission to certify a memorandum of its terms pursuant to s. 28 of the Act. Those terms are not in settlement of an industrial dispute as defined by the Act. If they are in settlement of a dispute at all, it can, on the evidence, be at most a dispute at all, it can, on the evidence, be at most a dispute between the Association and A. W. Allen Ltd. and its subsidiary company in relation to the companies' Victorian establishments and such a dispute would lack any interstate element.
Apart from cl. 54, it was argued by the Association that the reservation of leave in respect of "redundancy" in cl. 44 of the award is evidence of the existence of a dispute at the time that the award was made with respect to the conditions upon which retrenchment upon redndancy should take place between the parties to the award, regardless of the claims made by the log. This argument must, in our view, be rejected.
Leave may have been reserved with respect to redundancy because the parties and the Commission in error thought that the matter was raised by the log of claims or in order to preserve some such argument as was put to this Court in relation to cl. 54 in this case or for some other reason which is not apparent. It is sufficient to say that the reservation of leave is not evidence of any dispute as to the subject matter of the leave and does not, of course, of itself create any dispute. The dispute which was found by the Commission and upon the basis of which the award was made was that created by the service of the log of claims. Those claims do not raise the subject of redundancy or, if they do, for the reasons which we have given, do so in a confined way.
The Association also seeks to put its case by calling in aid s. 20 of the Act. That section provides:
In dealing with an industrial dispute, the Commission shall, where it appears practicable and appropriate to do so, encourage the parties to agree on procedures for preventing or settling, by discussion and agreement, further disputes between the parties or any of them as to industrial matters, with a view to the agreed procedures being included in an award or in a memorandum of agreement having effect as an award.
However, s. 20 does not widen the ambit of a dispute which must, in a case such as this, be determined by reference to the relevant log of claims. Even if it could be said that the agreement which the parties seek to have certified contains procedures for preventing or settling, by discussion and agreement, further disputes between the parties as to industrial matters, that does not of itself invest the Commission with power to certify the memorandum of the terms of the agreement. Indeed, the Commission is only empowered by s. 20 to encourage agreement on such procedures in the course of dealing with an interstate dispute and the section certainly does nothing to enlarge the jurisdiction of the Commission beyond the ambit of that dispute. That is a sufficient answer to the argument based upon s. 20. But it may, in addition, be doubted whether the agreement in question contains procedures for preventing or settling further disputes. It forbids the companies to retrench or make redundant members of the Association until agreement has been reached between the companies and the Association in relation to redundancy and retrenchment provisions. Such an embargo presupposes lack of agreement upon redundancy and retrenchment provisions and operates to preserve the status quo rather than provide any means of reaching agreement.
The final point which the Association makes is that neither of the prosecutors, Cadbury Schweppes Australia Ltd. and Cadbury Schweppes Pty. Ltd., has standing to bring these proceedings. In the case of Cadbury Schweppes Australia Ltd., it is said that it is not a party to the award made in settlement of the relevant log of claims, and in the case of Cadbury Schweppes Pty. Ltd., it is not a party to the agreement for which certification is sought. However, Cadbury Schweppes Pty. Ltd. was a party to the dispute upon which reliance must be placed in the proceedings for the certification of the agreement and also to the award which was made in settlement of that dispute. Whether or not the ambit of that dispute includes claims in relation to retrenchment upon redundancy will determine whether the Commission has jurisdiction, not only to certify the agreement, but also to arbitrate those claims in relation to that company.
For this reason, Cadbury Schweppes Pty. Ltd. cannot be considered a stranger to the certification proceedings, at all events for the purposes of an attack upon the jurisdicton of the Commission to entertain them. Cf. Reg. v. Isaac; Ex parte State Electricity Commission of Victoria [18] . That conclusion enables us to put on one side the question whether Cadbury Schweppes Pty. Ltd. would have the standing necessary to bring the proceedings even if it were a stranger for that purpose. It is unnecessary then to consider the standing of Cadbury Schweppes Australia Ltd. The separate position of that company could only be relevant upon the question of costs and there was no suggestion that any additional costs were incurred by reason of its joinder as a party. We would make the order absolute.
The prosecutors seek an order prohibiting a member of the Australian Conciliation and Arbitration Commission ("the Comission") from proceeding further with the hearing of an application by the respondent Association ("the Association") for certification, pursuant to s. 28 of the Conciliation and Arbitration Act 1904 Cth ("the Act"), of a memorandum of an agreement between the Association and the two respondent companies ("the agreement"). The case was presented and argued on the basis that the only issue involved is whether it appears from the evidence that the terms of the agreement are outside the ambit of any interstate industrial dispute to which the Association and the respondent companies were parties. On that issue, we agree, for the reasons which he gives, with the conclusion of Murphy J. that the prosecutors have failed to establish that the reservation as to the redundancy in cl. 44 of the Confectioners' Award 1980 ("the Award") was outside the ambit of the interstate industrial dispute in partial settlement of which the Award was made and to which the Association and the companies were parties. As Murphy J. points out, there is simply no evidence before the Court of what took place during the period of approximately twelve months between the service of the original log of claims and the making of the award containing the general reservation as to redundancy or of the explanation, or absence of explanation, for the inclusion in the Award of that reservation. Since the terms of the agreement have not been shown to be outside the ambit of a continuing interstate industrial dispute about redundancy which the Award reserved for future settlement, the order nisi should be discharged. There is one matter in respect of which we would make some further comment.
While the Commission's conciliation and arbitration functions may overlap, the Act maintains a distinction - perhaps an unnecessarily rigid one - between them. That distinction reflects the difference in nature between conciliation and arbitration. The Commission's conciliation functions involve and are directed to assisting the prevention or settlement of industrial disputes by "amicable agreement" between the prospective or actual parties to the particular dispute. Its arbitration functions are directed to preventing and settling industrial disputes not resolved by amicable agreement and involve the making of binding awards which are not consensual in their nature (see, generally, per Isaacs J., Monard v. H. M. Leggo & Co. Ltd. [19] ). The powers of the Commission to certify a memorandum or make an award under s. 28 of the Act are part of its conciliation powers. They are exercisable only where the parties to an "industrial dispute" have reached "agreement on terms for the settlement of all or any of the matters in dispute" before the "industrial dispute has been referred to arbitration". Under the general scheme of the Act, they are exercisable before the stage of arbitration has been reached (see Act, ss. 26, 27, 28(1), 29(1)(a) and 30(1)).
Once the stage of arbitration is reached, the ambit of the particular interstate industrial dispute is the yardstick for measuring the constitutional validity of an award made in exercise of the Commission's arbitral functions. That is because the ambit of the dispute determines the limits of the jurisdiction of an arbitrator to bind the parties by his award. Those limits are derived from the nature of arbitration; they do not circumscribe the functions of a conciliator who is at liberty to assist the parties themselves to avoid or settle a dispute by an agreement which ventures beyond the ambit of their prospective or actual dispute. If the functions of an industrial conciliator were circumscribed by the ambit of a prospective or actual dispute, they would lack the flexibility and sophistication exhibited even by the conciliation processes of primitive tribal societies (see, e.g. G. McCormack, "Procedures For The Settlement of Disputes in "Simple" Societies", The Irish Jurist, vol. 11 (1976), 175; Roberts, Order and Dispute (1979), pp. 68-69). The decisions of this Court in which the limits of arbitral power have been stated by reference to the ambit of disputes may be given too wide a significance if they are assumed to state in the same way the scope of the legislative power with respect to conciliation under s. 51(xxxv) of the Constitution or the scope of the conciliation powers of the Commission under the Act (cf. per Isaacs and Rich JJ.,Federated Clothing Trades of the Commonwealth of Australia v. Archer [20] ). Since that question was not examined in argument in the present case however, we refrain from forming any concluded view upon it. In that regard, it should be mentioned that it was not submitted on behalf of the prosecutor that the Commission's powers under s. 28 were inapplicable for the reason that there was no relevant industrial dispute which had not already been referred to arbitration.
The order nisi for prohibition should be discharged.
R
Bain; Ex parte Cadbury Schweppes Australia Ltd