R v Cohen; Ex parte Attorney-General

R v Cohen; Ex parte Attorney-General - [1981] HCA 66 - HCA 1978 case summary — Zoe

In June 1979 S.P.S.F. published an advertisement giving notice that it had made application under the Act for consent to an alteration of its rules relating to the conditions of eligibility for membership. Although the amendment does not appear to have been directed to the position of employees of the Queensland Crown, A.I.E.U. was advised by its solicitors that it should lodge an objection to the application "if only to have repeated and re-recorded the agreement reached" between A.I.E.U. and S.P.S.F. when S.P.S.F. first sought registration. A notice of objection was lodged on 6 July 1979. On 8 August 1979 the solicitors for A.I.E.U. wrote to the Secretary of S.P.S.F., saying that A.I.E.U. "would be prepared to settle its objection in this matter on the basis that the agreement reached between that Union and your organization be repeated and recorded in transcript and in the Registrar's decision". These statements do not describe with complete clarity the intentions of A.I.E.U. The original agreement with S.P.S.F. referred only to employees of S.G.I.O. Some of these employees - those concerned with workers' compensation - had, so A.I.E.U. thought, become employees of the Board. A.I.E.U. was concerned that the agreement might not apply to them, and Mr. McLeod, the Federal Secretary of A.I.E.U., gave evidence before the Commission that the sole purpose of the objection was to persuade S.P.S.F. to include them in the agreement. By this time the log had been served on the Board. On 29 August 1979 Mr. Langmead, an officer of A.I.E.U., rang Mr. Wallace, the Secretary of Q.S.S.U.E., and told him that A.I.E.U. had been advised to lodge a log of claims because the agreement with S.P.S.F. did not cover the officers of the Board who had left S.G.I.O.; he added that it was not intended to proceed with the claim or to cover employees of the Board at that time, and that they were prepared to give an agreement to the Commission to this effect. On 30 August 1979 Mr. McLeod sent a letter to Mr. Wallace in the following terms:

[12]

It is, of course, clear that the Commission will only have jurisdiction if there is an industrial dispute extending beyond any one State; that is a constitutional as well as a statutory condition. There has been developed a highly artificial body of doctrine as to what constitutes a dispute. A "paper dispute", created by the formal delivery of a log of claims and a failure to comply with the demands contained in the log, will suffice. In Burwood Cinema Ltd. v. Australian Theatrical and Amusement Employees' Association [1] , it was held that the delivery of a log by an organization of employees in a particular industry on employers in that industry who do not employ any members of that organization, may create a dispute between the organization and the employers as to the wages and conditions of the members of the organization if and when they are employed. The principle was extended in Metal Trades Employers' Association v. Amalgamated Engineering Union [2] , where it was held that a dispute may be raised by an organization of employees in an industry with employers in that industry who employ none of its members as to the conditions on which they employ persons who are not members of the organization. That decision rested on the principle that "the interest which an organization of employees possesses in the establishment or maintenance of industrial conditions for its members gives a foundation for an attempt on its part to prevent employers employing anyone on less favourable terms": R. v. Commonwealth Court of Conciliation and Arbitration; Ex parte Kirsch [3] , per Dixon J. It is not a fatal objection that the purpose of the delivery of the log was to create an industrial dispute so as to give jurisdiction: Reg. v. Dunlop Rubber Australia Ltd; Ex parte Federated Miscellaneous Workers' Union of Australia [4] , and cases there cited. In consequence of these decisions, "it has become common practice to use the machinery of the Act, which was intended to provide a means of settling industrial disputes, as a means of creating them": Reg. v. Gough; Ex parte B.P. Refinery (Westernport) Pty. Ltd. [5] . I would respectfully repeat the remark of Windeyer J. in Ex parte Professional Engineers' Association [6] : "To permit the creation of a malady so that a particular brand of physic may be administered must still seem to some people a strange way to cure the ills and ensure the health of the body politic." However, the effect of the authorities, as they stand, is that although an employer and his employees may be in complete industrial harmony, a union of employees, none of whose members is employed by the employer, may create a dispute by delivering on the employer a formal log of claims, provided of course that the union and the employer are related to the same industry.

[14]

Although a dispute may be contrived, it must be real and not a mere fiction. The demands made must be genuine, in the sense that the organization making them really wants what it demands: the Metal Trades' Case [7] ; Melbourne and Metropolitan Tramways Board v. Horan [8] . If the log is not sincerely propounded as a demand on which the union is resolved to insist, and is nothing more than a step towards enabling the Commission to exercise jurisdiction, it will not create a real dispute: Caledonian Collieries Ltd. v. Australasian Coal and Shale Employees' Federation [No. 2] [9] . For example, if the demands are made to assist other employees to procure the acceptance of demands made by them, and not for the purpose of procuring acceptance of demands made by an alleged disputant, there will not be a real and genuine dispute:R. v. Blakeley; Ex parte Association of Architects etc. of Australia [10] . The question whether a dispute is real and genuine is a question of fact, and when prohibition is sought it is for this Court to determine whether or not the fact on which the jurisdiction of the Commission depends exists: see the authorities to which I have recently referred in Reg. v. Alley; Ex parte New South Wales Plumbers and Gasfitters Employees' Union [11] . The burden of showing that the Commission lacks jurisdiction rests on the prosecutor: Reg. v. Foster; Ex parte Commonwealth Life (Amalgamated) Assurances Ltd. [12] . A formal demand will prima facie be regarded as real and genuine, unless the contrary is established: Felt Hatters' Case [13] ; R. v. Blakeley; Ex parte Association of Architects etc. of Australia [14] ; Melbourne and Metropolitan Tramways Board v. Horan [15] . In deciding whether demands were genuine, it is relevant to inquire whether the union actively persisted in pressing them: Builders Labourers' Case [16] ; R. v. Blakeley; Ex parte Association of Architects etc. of Australia [17] . And, notwithstanding the decision in the Metal Trades' Case, and the doctrine that a union acts not as an agent but as a party principal, the number of the members of the union affected may be a circumstance to be considered in determining the genuineness of the demands: Australian Tramway and Motor Omnibus Employees' Association v. Commissioner for Road Transport and Tramways (N.S.W.) [18] ; see also Burwood Cinema Ltd. v. Australian Theatrical and Amusement Employees' Association [19] and Reg. v. Gough; Ex parte B.P. Refinery (Westernport) Pty. Ltd. [20] .

[21]

The case is not without its difficulties, but in the end I have concluded that the prosecutors have failed to discharge the onus that lies upon them of proving that the dispute was not real and genuine. It is true that an irresistible inference from the evidence is that one purpose of A.I.E.U. in serving a log on the Board, and later on the Crown, was to protect its position from encroachment by S.P.S.F. and sooner or later to gain more members for itself. If it had not been for the evidence given before the Commission by Messrs. McLeod and Langmead it would, I consider, have been proper to infer that that was A.I.E.U.'s only purpose. However, Messrs. McLeod and Langmead gave evidence that the claims were genuine and that A.I.E.U. intended to seek an award. The Deputy President made no express finding as to the credibility of those witnesses but in view of her ultimate conclusion it would have been expected that if she had not accepted their evidence she would have said so. Since the prosecutors did not call evidence before us, we have not had an opportunity to see the witnesses and to form our own opinion as to their credibility. However, there is nothing inherently incredible in their evidence that they genuinely desired to obtain an award even though the purpose of obtaining the award was to increase the membership of A.I.E.U. so as to include persons employed in the offices of the Board. Even if A.I.E.U. served the log of claims with the dominant motive of maintaining its position in relation to S.P.S.F., that would not mean that it had no genuine intention of pursuing the claims. It in fact persisted in them. In all the circumstances, it does not seem to me possible for this Court to form for itself the opinion that the crucial evidence of Messrs. McLeod and Langmead should not be believed. It follows that the prosecutors have failed to prove that the sole purpose of A.I.E.U. in making the demands was to protect its position from encroachment by S.P.S.F., or to gain more members, and that it had no real desire that the claims in the log should be met, and did not make the demands for the purpose of procuring acceptance to them. The onus of proving that there was no real dispute has not been discharged.

[42]

As I have said, the prosecutors take their stand on this issue of genuineness. Mr. Shepherdson Q.C., who appeared as their counsel, argued that the evidence left no doubt as to the policy of the Union in 1979 when the log was served on the Board and on other statutory authorities in all other States except New South Wales. That policy was to limit its dispute to those authorities which did not employ public servants. The fact that the Board was served, while the S.G.I.O. was not, could supply inferences touching the purpose of the Union which would show that there was no real dispute with the Board. One inference was that the log was delivered to the Board by mistake in the belief that its employees were not public servants. The second inference, which may stand either alone or together with the first, was the desire to maintain, at the federal level, the exclusive right to cover employees in statutory authorities in Queensland in the business of insurance. It was this right which had been secured originally by its arrangement with the S.P.S.F. In essence, Mr. Shepherdson argued that it was inconceivable that the Union was genuinely seeking an award with the Board whilst at the same time it made no attempt to involve the S.G.I.O. which employed a much greater number of potential members. Reference was made to the fact that the great majority of the employees of the Board were members of the State union and had made known their wish to maintain that affiliation, and also to the fact that the conditions presently enjoyed by such employees compared favourably with the conditions which existed under the present federal award. Nevertheless, the claims advanced in the log were an improvement on the present State award. It was said that Cohen J. erred in failing to take into consideration the fact that the Union had no members among the employees of the Board, the contradiction evident in the approach of the Union to the Board and to the S.G.I.O., and the history of the arrangement with the S.P.S.F.

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Judgment (61 paragraphs)

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