R v Bowen; Ex parte Amalgamated Metal Workers' and Shipwrights' Union

R v Bowen; Ex parte Amalgamated Metal Workers' and Shipwrights' Union - [1980] HCA 42 - HCA 1980 case summary — Zoe

[21]

These statutory provisions can only be upheld as valid if they are within the powers conferred on the Parliament by s. 51 (xxxv.) and (xxxix.) of the Constitution. Since the former power "carries with it authority to make such provisions as are incidental to the effectuation of the purpose described by the express words of the power" (Federated Iron-Workers' Association of Australia v. The Commonwealth [1] ), it seems unnecessary to invoke the power conferred by s. 51 (xxxix.), the scope of which does not fall for consideration in the present case. Mr. Laurie, on behalf of the union, took as the starting point of his argument the proposition that the power conferred by s. 51 (xxxv.), to make laws with respect to "conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State", does not enable the Parliament to legislate directly to settle disputes. He referred to a line of cases which includes Stemp v. Australian Glass Manufacturers Co. Ltd. [2] ; Metropolitan Gas Co. v. Federated Gas Employees' Industrial Union [3] and Walsh v. Sainsbury [4] , and submitted that although it may be incidental to the subject matter of the power to prohibit a strike or lockout in relation to an industrial dispute extending beyond a State or an industrial dispute settled by an award made by a federal tribunal, the Parliament cannot legislate to prevent strikes or other industrial action, or to forbid an employer to dismiss an employee for the reason that he has refused or failed to join in any industrial action, except in relation to an industrial dispute extending (or threatening to extend) beyond the limits of one State. Then he submitted that s. 188 went beyond the scope of the power, because the definition of industrial action in s. 4, which must be read into s. 188 either directly (because of the use of that expression in s. 188 (1) (c)) or indirectly (by way of the reference to s. 5 (1) (aa) in s. 188 (1) (a) and (b)), gives the section an operation which is not confined to interstate disputes. Although the grounds taken in the order nisi indicated that it was also intended to challenge the validity of s. 188 (4), that challenge was abandoned.

[23]

Mr. Laurie submitted that all three paragraphs of the definition of "industrial action" are too wide. Paragraph (a) applies only to work the terms or conditions of which are prescribed wholly or partly by an award of the Conciliation and Arbitration Commission or some other Commonwealth tribunal or by or under a Commonwealth law. It refers to the performance of such work in a manner different from that in which it is customarily performed, or to the adoption of a practice in relation to which work, the result of which is a restriction or limitation on or a delay in, the performance of the work. It was said that in this respect it applies to matters other than those settled by an award and would for example cover the case in which employees departed from a dangerous practice which was not enjoined by the award. However, it is clear that the practical operation of an award may be defeated if the persons governed by it either depart from the customary manner of performing the work, or adopt a new practice in relation to the work, with the result that the performance of the work is restricted, limited or delayed. The reasoning of Dixon C.J. in Australian Boot Trade Employees' Federation v. The Commonwealth [5] strongly supports the view, which I accept, that it was competent for the legislature to enact the provisions of s. 188 in conjunction with par. (a) of the definition of industrial action "as a means of preventing officials of an organization contributing to the indirect impairment of the settlement made of the dispute": Australian Boot Trade Employees' Federation v. The Commonwealth [5] . In so far as the definition refers to work the terms and conditions of which are prescribed by or under a law of the Commonwealth, rather than by an award, the same reasoning applies; assuming the law to be valid, the provisions now in question help to ensure its efficacy. Paragraph (b) of the definition is in its own terms limited to work the terms and conditions of which have been prescribed by an award of the Commission or other Commonwealth tribunal or by or under the law of the Commonwealth but it refers to a ban, limitation or restriction on acceptance or offering for such work, as well as to a ban, limitation or restriction on the performance of such work. Although it includes action designed to prevent someone not yet employed from accepting employment, it is closely linked to a federal award or to Commonwealth law. The reasoning which I have accepted in relation to par. (a) applies in my opinion with even greater force to par. (b), the provisions of which, as applied by s. 188 (1), are also valid.

[60]

Where the award impliedly requires customary performance and existing practices, it is clear that departure from these is inconsistent with the award. To go further and legislatively supplement the award is not to protect the award, but to legislate what the arbitral authorities could have, but have not, awarded. An obvious example is in the area of safety and health. Suppose at a factory in one State, certain safety measures (not covered by the award) were not observed by employees, for example, because of speed-up methods "customarily performed" in the factory. Under prevailing theories it may not be possible to invoke the authority of the Australian Conciliation and Arbitration Commission to deal with any dispute over the conditions (because the work is in one State only). The legislative provision inhibiting the organization from taking action (referred to in s. 188 (1) (a) (b) or (c)) do not protect the award, nor the processes of conciliation and arbitration. It is wrong to assume (in the absence of any expression or implication in the award) that "performance in a manner different from that in which it is customarily performed or the adoption of a practice in relation to such work, the result of which is a restriction or limitation on or a delay in the performance of the work" is inconsistent with the award. If the terms and conditions of work are wholly prescribed by the award, it is difficult to see how the addition of the references to customary performance and adoption of practices is justified. If the departure from customary performance, or the adoption of the practice, is inconsistent with the award, the words are surplusage. If the performance or adoption is consistent with the award provision (which are the whole terms and conditions) then this amounts to a legislative attempt to modify the terms, or at least to inhibit action of the organization directed to achieve ends in no way inconsistent with the award. The same applies if the terms and conditions of work are only partly prescribed by the award. Therefore the definition of industrial action causes 188 (1) (a) to travel beyond protection of the award or any operation of conciliation or arbitration.

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Judgment (124 paragraphs)

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