R v Blackburn; Transport Workers' Union of Australia, Ex p

There is no doubt, and it is not disputed, that at this stage the commissioner had ample authority to make an award determining the dispute and, in one sense, it may be said that by publishing his decision he took one step towards that end. But his decision did not affect, or purport immediately to affect, the rights and obligations of the parties. He did not make an interim award, nor did he make an award and suspend its operation for a period in order that the parties might make appropriate submissions during the period of the suspension. What he did was to indicate generally to the parties the form of award which he proposed to make at a later stage and the reasons which had led him to his various conclusions.

On 19th December 1952, a discussion as to the terms of the proposed award took place before the commissioner in the presence of representatives of the parties. During the course of this discussion a request was made to the commissioner to refer to the Commonwealth Court of Conciliation and Arbitration a question of law which, it was suggested, arose in the proceedings, but before any further step in the matter was taken the union, on 19th February 1953, caused to be sent to every employer upon whom the log of claims had been served, a notice that the union entirely withdrew all claims made in the log. On the same day the union forwarded to the conciliation commissioner a copy of the notice and submitted in writing that he should not proceed further in the matter. Subsequently, on 4th March 1953, the deputy industrial registrar, at the instance of the conciliation commissioner issued to the parties a notice which, after reciting a number of facts, notified the parties that the commissioner had decided to hear the representatives of the parties who might desire to be heard as to whether leave should be granted to the union, pursuant to reg. 12 of the Conciliation and Arbitration Regulations, to withdraw the proceedings "initiated by it consequent upon the service of the said log of claims." To this notice the union replied that it had not made any application for leave to withdraw the proceedings. On 26th March 1953, however, the matter was placed in the commissioner's list. On that date the commissioner announced that since the issue of the notice he had received a letter written on behalf of the union in the course of which it was said that it had not made any application for leave to withdraw any proceedings, and that since the union did not propose to make any application to withdraw the proceedings, they would "simply go on" and that he would issue an award as soon as he returned to Adelaide. This application is now made to prohibit the commissioner from making an award in the proceedings.

For the union it is contended that no award can be made by a conciliation commissioner unless at the time it is made there is in existence an industrial dispute extending beyond the limits of any one State. Employers who were served with notice of this application contend, on the contrary, that a commissioner, having once become seized of matters in dispute is authorized, and indeed bound, to proceed to the making of an order or award unless agreement is arrived at between the parties as to the whole of the matters in dispute. (See s. 38.) The choice between these competing contentions obviously involves a consideration of the statutory provisions which confer authority to make awards and orders.

The argument for the employers regards the existence of an industrial dispute as the factor which attracts the jurisdiction of the court or of the appropriate conciliation commissioner, and proceeds from that point to the proposition that once a dispute has become, as it were, a lis pendens a commissioner may, within the scope of the matters committed to him by the statute, make an award dealing with the matters involved in the dispute. This argument we would find more attractive if proceedings under the Act bore any real resemblance to proceedings in ordinary courts of law and if, indeed, the powers conferred upon conciliation commissioners were analogous in substance to the judicial power of deciding issues between parties. It is, of course, true that the existence of a dispute is necessary, first of all, to attract the jurisdiction of a conciliation commissioner. But once the jurisdiction is attracted it is the dispute which comes before the commissioner as a conciliator or as arbitrator. He is bound "carefully and expeditiously" to "hear, inquire into and investigate every industrial dispute which is before him and all matters affecting the merits of the dispute and the right settlement thereof" (s. 36 (1)). Further, he is bound to "make all such suggestions and do all such things as appear to him to be right and proper for reconciling the parties and for inducing the settlement of the dispute by amicable agreement" (s. 36 (2)). Where an agreement between all or any of the parties as to the whole or any part of the dispute is arrived at, he may, pursuant to s. 37 certify a memorandum of the terms of the agreement whereupon the memorandum is to "have the same effect as, and be deemed to be, an award for all purposes of" the Act. Pursuant to s. 38, if no agreement between the parties as to the whole of the dispute is arrived at, he is bound by an order or award to "determine the dispute, or so much of the dispute as is not settled by the agreement". Functions such as these are most unlike those performed by the ordinary courts of law in the exercise of the jurisdiction conferred upon them. In the exercise of their jurisdiction such courts determine the rights and obligations of the parties to an action or suit and such rights and obligations, in general, fall to be determined as at the commencement of the proceedings. We say "in general" because in most courts matters of defence arising after action brought may be raised in accordance with special rules. But no assistance in solving the present problem is derived from a consideration of the jurisdiction of ordinary courts of law and the manner in which it is exerciseable for the power given to conciliation commissioners is not a power to investigate and determine existing rights and obligations between parties but a power to inquire into and investigate industrial disputes and failing agreement between the parties, to determine them by the making of orders or awards. This being so, we confess that we cannot see how the power can be exercised when no dispute exists or at a time when a previously existing dispute has come to an end.

On this point we were referred to the decision in Federated Engine-Drivers' and Firemen's Association of Australasia v. Adelaide Chemical and Fertilizer Co. Ltd. [1] , where in the joint judgment of Knox C.J., Gavan Duffy and Starke JJ. the view was expressed that the jurisdiction of the court having once vested was not divested by the events established in that case. Considerable reliance was placed upon the words we have italicized, but nothing their Honours said had any application to the problem presented by the facts of this case. They did not say, or even appear to say, that an award might be made at a time when the dispute which originally attracted the jurisdiction of the court had wholly ceased to exist. In that case the court was concerned with the problem which arose when a dispute extending beyond the limits of any one State had, partly by the making of awards and partly by agreements, been settled in all but one State. "It was", as their Honours said, "contended that the dispute referred into the Arbitration Court ceased to exist as an inter-State dispute, and was in fact determined or put an end to, or, in the alternative, lost its inter-State character and so ceased to be within the jurisdiction of the Arbitration Court, so soon as awards or agreements certified and filed pursuant to sec. 24 were made leaving respondents in only one State to be dealt with. It was said that one or other of these consequences must follow as soon as the dispute ceased to project itself beyond the limits of some one State. The argument is untenable. The court became seised of a dispute extending beyond the limits of one State, and it then became its duty to determine that dispute in so far as no agreement between the parties was arrived at (see sec. 24). The fact that the Court or the parties on the road to or in process of settlement of the dispute made some awards or some such agreements, which did not together cover the whole area of the dispute, did not dispose of or end the dispute or change its character. The jurisdiction of the Court having once vested is not divested, and the duty of the Court is not completely performed by the partial settlement of the matter" [1] . Clearly the jurisdiction of the court to determine the whole dispute was not divested by the exercise of the power of determination or by the making of agreements in relation to the dispute in all States but one. The dispute which remained was not a new dispute but the "undetermined" residue of the original dispute.

1. (1920) 28 C.L.R. 1. 2. (1920) 28 C.L.R., at p. 9.

We were also referred by counsel for the employers to a passage in the joint judgment of Gavan Duffy C.J., Rich and Dixon JJ. in Federated Millers and Mill Employees' Association of Australasia v. Butcher [2] . There it was said: "There are two answers to the contention that the ambit of the original dispute was restricted by reason of the subsequent service of the employers' logs. The first answer is that when the Court of Conciliation and Arbitration takes cognizance of an industrial dispute defined in extent and subject matter no subsequent expressions by the parties of their readiness to concede parts of demands and no communication of terms and conditions to which they are willing to submit can operate to limit the jurisdiction of the Court. Sec. 24 of the Act proceeds upon the view that an industrial dispute of which the Court has cognizance being a matter of public concern, is to be settled by or under the supervision of the Court either by means of an award or an agreement certified by a Judge or a Conciliation Commissioner. The employers' logs are no more than communications of the employers' desires in respect of the regulation of the industrial relations between the parties. The subjects included in the rival proposals may not be identical, but they cover the same field. There is nothing in the nature of a withdrawal by one party from the industrial dispute or a retractation of his demands or refusals." [1] .

1. (1932) 47 C.L.R. 246. 2. (1932) 47 C.L.R., at p. 254.

With the statement which we have italicized we respectfully agree but that their Honours were not speaking of a case such as the present and that the statement was not intended to refer to such a case is made obvious by their comment that there was "nothing in the nature of a withdrawal by one party from the industrial dispute or a retractation of his demands or refusals". Indeed, it follows, we think, from their reasons that their Honours considered that the extent of a dispute at the time of the making of an award was a vital matter for consideration and, if this is so, the existence of a dispute at the time the jurisdiction is exercised is equally vital.

Accordingly, we are of the opinion that if the dispute which existed between the parties has come to an end the conciliation commissioner has now no power to proceed further with the making of the proposed award. There was no real suggestion that the dispute continued after the union purported, by its notice to the employers affected, to withdraw entirely all claims made in the log previously served. The question whether or not it did continue is, of course, a question of fact but the only inference open on the evidence before us is that the dispute did not thereafter continue. It seems clear that, just as a dispute may originate by the making of claims and the rejection thereof, it will terminate upon one party withdrawing its claims entirely whether such withdrawal takes place before or after the jurisdiction of a conciliation commissioner or the court has been invoked. But just as a dispute must be a genuine dispute, so a withdrawal must be a genuine withdrawal and not made merely pro forma for the purpose of endeavouring to remove the matter in dispute from the jurisdiction of the court or conciliation commissioner by making it appear that the dispute is at an end. There is, however, nothing in the facts before us to indicate that the withdrawal, which on its face was absolute, was not genuine or that it was subject to any unexpressed reservations.

So far we have not referred to the provisions of reg. 12 of the regulations made pursuant to the Act. This regulation provides that a proceeding before a conciliation commissioner may be withdrawn by the party who initiated the proceeding by leave of the conciliation commissioner or upon a consent in writing to the withdrawal being signed by each of the parties, filed with the registrar and approved by the conciliation commissioner. Whatever effect the requirements of this regulation may have upon the rights of parties in proceedings under the Act it is clear that it does not, and cannot, so operate as to empower the court or a conciliation commissioner to make an award in settlement of a non-existent dispute. In a case such as the present the jurisdiction of the conciliation commissioner to make the proposed award depends upon the existence of an appropriate dispute and the circumstances that an application for leave to withdraw the proceedings has not been made - or that such an application, if made, might be refused - is immaterial.

In the circumstances, and, although it is unfortunate that the time and expense involved in the proceedings before the commissioner should have been wasted, we are of the opinion that the order nisi should be made absolute prohibiting the respondent from making any award purporting to determine the dispute the subject of the proceedings referred to in the order nisi.

The question that arises on this application to make absolute an order nisi for prohibition to Mr. Conciliation Commissioner Blackburn to restrain him from making an award for the passenger section of the transport industry in several States is whether an inter-State industrial dispute must be taken to have terminated and the commissioner to have been without jurisdiction from the time the employers were notified by the prosecutor union that the claims against them were withdrawn; or whether it was necessary that the leave of the commissioner to withdraw the claims should have been obtained under reg. 12 of the regulations made under s. 124 of the Conciliation and Arbitration Act 1904-1952. It appears that at the time of the notification of the withdrawal the award had not been signed by the commissioner.

Regulation 12 provides: "A proceeding before a Conciliation Commissioner may be withdrawn by the party who initiated the proceeding by leave of the Conciliation Commissioner or upon a consent in writing to the withdrawal being signed by each of the parties, filed with the Registrar and approved by the Conciliation Commissioner".

The claimant union did not make application for leave to withdraw the claims; but it sent to the commissioner a copy of its letter to the employers withdrawing the claims, and requested the commissioner to proceed no further.

An inter-State industrial dispute may be created by the service of claims on the employers and the refusal of the employers to accede thereto. That is the usual method of creating such disputes and providing the necessary jurisdiction to make an award under the Act. But a commissioner must be satisfied that the dispute exists before he proceeds to settle it by an award. The mere production of a copy of the claim and the refusal is not necessarily conclusive of the existence of the dispute. A determination by the commissioner that it exists is required as a practical if not as a legal necessity. So, too, the mere proof of service of the withdrawal of the claims on the employers is not conclusive that the dispute is at an end; and a determination of the commissioner that it has terminated, manifested by his decision to give leave to withdraw the claim, is required in the interests of orderly procedure in industrial regulation. Hence the need for reg. 12.

I do not suggest that it is within the regulation-making power in s. 124 of the Act, or within the power conferred by s. 51 (xxxv.) or the incidental power conferred by s. 51 (xxxix.) of the Commonwealth Constitution, to provide that once a commissioner has entered upon the hearing of claims he may make an award, although the dispute ends before he makes the award. But reg. 12 does not go that far. If a commissioner wrongly refuses leave to withdraw claims and proceeds to make his award nothing in reg. 12 prevents him from being restrained in prohibition proceedings. He could not retain jurisdiction by an improper refusal of leave. But the application for leave should be made to him under reg. 12; and until it is made and improperly refused, I think this court is not bound to interfere, and in the exercise of its discretion should not interfere, at the instance of this prosecutor. Another prosecutor, say a person prosecuted for a breach of the award, asserting its invalidity of the award as unconstitutional might well be in a different and more favourable position to sustain that challenge. If the prosecutor ignored a rule of this court he could not hope to succeed, no matter how clear the invalidity of the award.