R v Cohen; Ex parte Attorney-General

We confirm the advice given in a telephone discussion with Mr. Langmead of this office and yourself, to the effect that this Union will not seek to proceed in any respect at this stage against the Workers' Compensation Board of Queensland in relation to the log of claims served on 10 July 1979, but will ask that the question of the Board's status as a party to a dispute be reserved.

Our intention is to preserve our rights of Industrial coverage in connection with an agreement between the State Public Services Federation and this Union, which is contained within the decision of the Industrial Registrar when that organisation achieved registration. We attach a copy of the relevant extract from that decision.

We have received legal advice that the amending legislation establishing the Board as the monopoly insurer for workers' compensation may arguably take the Board out of the ambit of that agreement and accordingly wish to restate our position.

We will be advising Commissioner Cohen of our position and our intention not to proceed when the matter is heard on 19 September 1979.

On 31 August 1979, Mr. McLeod wrote to the Chief Executive Officer of the Queensland Public Service Board in similar terms. Mr. Langmead, who drafted the letters, said that although A.I.E.U. did not want to proceed at that stage, it was intended to proceed at some stage. He said that the purpose of the proceedings was to gain coverage and an award for the employees of the Board.

On 7 September 1979 the solicitor for A.I.E.U. wrote to S.P.S.F. stating that, before it would be prepared to withdraw its objection to the application lodged by S.P.S.F., it would wish to extend the agreement so that S.P.S.F. acknowledged that the employees of the Board, as well as those of S.G.I.O., would exclusively be within the eligibility rule of A.I.E.U.

At the time of the hearing about 1,400-1,500 persons were employed in S.G.I.O. However, A.I.E.U. did not serve the log on S.G.I.O. or seek to extend its demands to those persons. When asked in evidence why the S.G.I.O. had not been joined, Mr. McLeod replied: "That is a matter for decision for ourselves. We will do what we want to do in our own time." However, Mr. McLeod repeatedly said in evidence that the claims made in respect of the employees of the Board were genuine and that A.I.E.U. intended to seek an award. He said that A.I.E.U. could not and would not seek members amongst the persons employed by the Board until it could offer them industrial cover.

There is no evidence that the persons employed in the office of the Board wish to be brought under a new federal award. In fact their salaries and conditions for the most part are better than those available under federal awards in the insurance industry. However, the claims in the log, which are what are known as "ambit claims" and are therefore widely drawn, would, if acceded to, obviously confer on the employees better conditions than they have at present.

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.

1. (1925) 35 C.L.R. 528. 2. (1935) 54 C.L.R. 387. 3. (1938) 60 C.L.R. 507, at p. 537. 4. (1957) 97 C.L.R. 71, at p. 81. 5. (1966) 114 C.L.R. 384, at p. 386. 6. (1959) 107 C.L.R. 208, at p. 268.

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] .

1. (1935) 54 C.L.R., at p. 415. 2. (1967) 117 C.L.R. 78, at p. 84. 3. (1930) 42 C.L.R. 558, at pp. 579-580. 4. (1950) 82 C.L.R. 54, at p. 69. 5. (1981) 153 C.L.R. 376. 6. (1952) 5 C.L.R. 138, at p. 153. 7. (1914) 18 C.L.R. 88, at p. 109. 8. (1950) 82 C.L.R., at pp. 69, 83. 9. (1967) 117 C.L.R., at p. 84. 10. (1914) 18 C.L.R. 224, at p. 246. 11. (1950) 82 C.L.R., at p. 67. 12. (1938) 58 C.L.R. 436, at p. 441. 13. (1925) 35 C.L.R., at p. 551. 14. (1966) 114 C.L.R., at p. 387.

In Australian Tramway and Motor Omnibus Employees' Association v. Commissioner for Road Transport and Tramways (N.S.W.) [21] , Evatt J. said that "the existence of a dispute extending beyond the limits of one State is not negatived by mere proof that the organization which is making demands upon employers is also seeking to increase or retain its membership. That circumstance, with all other circumstances, may be examined for the purpose of determining whether the demands for industrial conditions are genuine or a sham." I respectfully agree with this statement. A union, by serving a demand, may wish to achieve two different objects - to increase its membership, and to secure the conditions contained in the log. Provided that the latter purpose is genuinely held, the demand will be a real one notwithstanding that the former purpose actuated the union as well, and failure to comply with the demand will give rise to a real dispute. We were referred to an unreported decision of Starke J. in A. J. Swain & Co. Ltd. v. Australian Saddlery etc. Employees' Federation [22] , where his Honour said:

The creation or establishment of an industrial dispute is inherently difficult when employers have no members of an industrial organization in their employ, and when demands are made upon them merely for the purpose of "roping them in" and obtaining uniform conditions in Australia, although their employees are not behind and give no support to the demands. A claim made and refused in these circumstances does not constitute an industrial dispute, and I so find in fact. 1. (1938) 58 C.L.R.., at p. 440. 2. High Court.; September 1936; Unreported.

These words appear to give more weight to the circumstances that the employer has no members of the organization in his employ, and that his employees do not support the demands, than the Metal Trades' Case [23] , and the decisions that have followed it, would allow, but the use of the word "merely" is important. It is not inconsistent with the authorities to say that if the sole purpose of the demands was to "rope in" the employer, and if the union did not really seek compliance with its demands, the non-compliance with the demands would not create a real disp%22ute.

In the present case it was submitted on behalf of the prosecutors that the evidence supported the view that the log had been delivered to the Board under the mistaken belief that the persons working in the office of the Board were employed by the Board and for that reason it was not a real and genuine log of claims. If the first proposition be accepted, the second does not follow from it. It is true that the evidence shows that A.I.E.U. refrained from serving the log, not only on S.G.I.O., but also on those State insurance offices in other States which were known to employ public servants. Mr. McLeod gave evidence that the A.I.E.U. had decided at this stage to confine its activities to statutory authorities, and he appears to have meant that it had been decided not to seek an award governing employees of State instrumentalities who were public servants. On the first day of the proceedings before the Commission counsel for A.I.E.U. argued quite strongly that the employees in the office of the Board were employees of the Board. However, when the Deputy President ruled that they were employees of the Crown, A.I.E.U., knowing that the employees were public servants, promptly arranged service on the Crown and continued for four more days of the hearing to urge its case. If the claim was not otherwise lacking in genuineness, it cannot be considered a sham simply because it was made under a mistake as to whether the employees were public servants or not, particularly when, the true facts having been discovered, the union making the claim served the Crown with the log and persisted in its claim.

The more important branch of the argument submitted on behalf of the prosecutors was that the evidence as a whole showed that the claim in the log was not genuinely made against the Board or the Crown in relation to persons employed in the offices of the Board. It was said that the claim was made simply to get "union coverage" of the persons employed in the Board as against S.P.S.F.; in other words, that there was a dispute between the two unions, but none between A.I.E.U. and the Board. In submitting this argument the prosecution relied on the following circumstances. In 1975, when no finding of a dispute with S.G.I.O. was made, A.I.E.U. did not pursue its application against S.G.I.O. After the Board was constituted, in 1978, A.I.E.U. took no steps to make demands against the Board until S.P.S.F. had advertised its intention to apply to amend the rules governing eligibility for membership. At the time the log was served none of the persons employed in the office of the Board were members of A.I.E.U., and none sought the making of a federal award. Clearly A.I.E.U. was influenced in delivering the log to the Board by the fact that it wished to preserve its rights of coverage vis-à-vis S.P.S.F. An important circumstance is that after A.I.E.U. had served the log it wrote to the Public Service Board (on 31 August 1979) stating that its intention was to preserve its rights of industrial coverage in connexion with the agreement with S.P.S.F. and that its intention was not to proceed when the matter was heard on 19 September 1979. However, although A.I.E.U. was desirous that the matter should be adjourned, it appears that those representing the Crown sought a finding that no dispute existed and it was for that reason that the matter was brought on again before the Deputy President on 26 November.

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.

I have referred to the difficulty created by the fact that the employees in question are not employees of the Board. If the Board had relied on that fact, it would appear that it must have succeeded in its contention that it was not a party to the dispute. However, since the Board did not rely on this matter before us it may be left to the Commission to correct its finding. Further, of course, the fact that the circumstances will call for a consideration by the Commission of the possible exercise of its powers under s. 41(1)(d) of the Act is not relevant on the present application.

The prosecutors seek a writ of prohibition or certiorari directed to Cohen J., a Deputy President of the Australian Conciliation and Arbitration Commission in respect of proceedings in the Commission so far as they relate to the Workers' Compensation Board of Queensland.

The prosecutors do not allege that there is not otherwise an industrial dispute extending beyond the limits of one State. They assert that the Workers' Compensation Board of Queensland does not employ and never has employed any members of the union - and therefore service on the Board of the union's log of claims, and the Board's refusal to accede to the claims, does not give rise to a dispute.

To succeed, the prosecutor must show that there is no actual or potential industrial dispute extending beyond one State: see s. 4, Conciliation and Arbitration Act 1904 Cth, as amended, definition of "industrial dispute". The cases show that the system of registered organizations enables the creation of such an actual or potential dispute but demands made by an organization of employees in respect of work "covered" by the organization, even though no members of the organization are presently engaged on such work: Metal Trades Employers' Association v. Amalgamated Engineering Union [24] ; R. v. Commonwealth Court of Conciliation and Arbitration; Ex parte Kirsch [25] .

1. (1935) 54 C.L.R. 387. 2. (1938) 60 C.L.R. 507.

The Conciliation and Arbitration Act creates an industrial relationship between an organization of employees and any actual or potential employer, in the industry in or in connexion with which the organization is registered (or at least any actual or potential employer of persons eligible to become members of the organization): Reg. v. Graziers' Association of New South Wales; Ex parte Australian Workers' Union [26] .

In this Court the onus is on the prosecutor to prove that the Commission is without jurisdiction. The prosecutor therefore has to prove, and prove clearly that there is no actual or potential industrial dispute extending beyond one State: Reg. v. Foster; Ex parte Commonwealth Life (Amalgamated) Assurances Ltd. [27] ; R. v. President of the Commonwealth Court of Conciliation and Arbitration and Merchant Service Guild of Australasia; Ex parte William Holyman and Sons Ltd. [28] ; Reg. v. Commonwealth Conciliation and Arbitration Commission; Ex parte Australian Workers' Union [29] ; Reg. v. Alley; Ex parte New South Wales Plumbers and Gasfitters Employees' Union [30] . In this case the prosecutors assert the absence of such a dispute, on the ground that any such dispute is not real and genuine in relation to certain work of the Workers' Compensation Board of Queensland. The evidence does not support the assertion. In this respect I agree with the analysis by the Chief Justice.

1. (1952) 85 C.L.R. 138. 2. (1914) 18 C.L.R. 273. 3. (1957) 99 C.L.R. 505. 4. (1981) 153 C.L.R. 376.

In this matter I have had the advantage of reading the reasons for judgment of the Chief Justice with which I am in full agreement. There is nothing I can usefully add. The order nisi should be discharged.

This is the return of an order nisi made by Mason J. for the issue of writs of prohibition and certiorari directed to the Honourable Justice Cohen, a Deputy President of the Conciliation and Arbitration Commission and to the Australian Insurance Employees' Union ("the Union") in relation to a decision made on 24 July 1980 by Cohen J. that an industrial dispute existed between the Union and the Workers' Compensation Board of Queensland ("the Board"). The prosecutors are the Minister for Justice and Attorney-General for the State of Queensland and the Board.

The submission of the prosecutors in support of the writs is that on the evidence placed before her, Commissioner Cohen (as she then was) should not have found a dispute to exist. That evidence, so it is said, established that notwithstanding the delivery of a log of claims by the Union and the refusal of the Board, there was no real and genuine industrial dispute. Although some additional matters were canvassed in the hearing before the Commission, the question whether the dispute was real and genuine is the sole matter at issue between the parties to these proceedings. The parties did not turn their attention to the position of the Board, having regard to the fact that the workers in question, being members of the public service, are employed not by the Board but pursuant to the Public Service Act 1922 Q.. In any event, this is a matter which may conveniently be corrected by the Commission.

In order to understand how the prosecutors put their case it is necessary to recount some matters of history. The criterion of eligibility for membership of the Union is set out in r. 5 of its Constitution. So far as material, that rule provides that the Union shall consist "of an unlimited number of members, male and female, employed or usually employed in the business of Insurance or Assurance". In 1975 the Union, under its then name of Australian Insurance Staffs Federation, served a log of claims on a number of statutory authorities engaged in the business of insurance in several States, including the State Government Insurance Office (Q.) ("the S.G.I.O."). A dispute was notified. Following a contested hearing before Commissioner Paine, the matter of an alleged dispute with the S.G.I.O. was adjourned without any finding of a dispute. The Union did not proceed further with its application against that employer. The only persons employed in the S.G.I.O. were public servants in the service of the Crown.

Also in 1975 the State Public Services Federation ("the S.P.S.F.") applied for registration under the Conciliation and Arbitration Act 1904 Cth ("the Act") as an organization of employees. The Union objected to the registration, and thereafter negotiated an agreement with the S.P.S.F. whereby the latter acknowledged that, while it had at that stage excluded employees and employers in Queensland from the reach of its rules, the employees of the S.G.I.O. would be exclusively within the eligibility rule of the Union and that in the event of a future extension by the S.P.S.F. of its coverage into Queensland it would not disturb that situation of exclusive eligibility in favour of the Union.

In 1978 the Workers' Compensation Act Amendment Act was enacted and came into operation on 1 July 1978. It amended the principal Act, the Workers' Compensation Act 1916-1974, in a number of respects. In particular, it established the Board as a body corporate to represent the Crown (s. 3A), and empowered and authorized it:

(a) to carry on the business of accident insurance;

(b) to carry on such of the business of insurance of persons, whether or not employers, in respect of injury suffered by them and liability incurred by them in respect of injury suffered by other persons as is provided for by or under this Act; (s. 4(1)).

The business so described had hitherto been conducted by the S.G.I.O., and on 1 July 1978 those employees who worked in the Workers' Compensation Department of the S.G.I.O. were assigned to the Board. They remained public servants.

The establishment of the Board caused some concern to the Union, in that it no longer had the comfort, in relation to the workers who had been transferred from the S.G.I.O., of the acknowledgment from the S.P.S.F. When, in 1979, the S.P.S.F. applied to amend its rules relating to the eligibility clause, the Union objected to the application and took steps, apparently without success, to have the S.P.S.F.'s acknowledgment of the exclusive coverage by the Union of workers employed by the S.G.I.O. extended to cover the workers employed by the Board. It was admitted in evidence by Mr. McLeod, the Secretary of the Union, that the sole purpose of the Union in objecting to the application of the S.P.S.F. was to encourage the latter to extend its acknowledgment to cover the Board. At about the same time, that is to say, in July 1979, the Union served the present log on the Board. The log was not served on the S.G.I.O., notwithstanding its continued employment of some 1,400 persons in the business of insurance.

When the proceedings opened before Commissioner Cohen in November 1979 it became known that the persons engaged in the Board's operations were public servants, and the log of claims was served without delay on the Attorney-General. A State-registered union, the Queensland State Service Union of Employees ("the State union") which held the membership of all but three of the 441 employees of the Board, intervened in support of the opposition to the finding of a dispute. The State union attacked the genuineness of the dispute, and produced a letter of 30 August 1979 which had been received from the Union. It advised the State union of its intention not to pursue the finding of a dispute with the Board at that time, and affirmed its determination to preserve its rights of industrial coverage by way of agreement with the S.P.S.F. It was argued for the State union that the service of the log of claims was not in truth directed to the relations between employers and employees but to the preservation of the Union's rights of coverage of the Board's employees and hence with the relations of two organizations registered under the Act, the Union and the S.P.S.F. Cohen J. dealt with this argument as follows:

There is still the question of the Union's motives in serving the log on the Board. The history of the matter reflects the A.I.E.U.'s continuing anxiety over a long period to establish its rights of coverage of these employees, for what purpose other than eventually to enrol them as members and seek an award for them it is impossible for me to speculate. All that can be read into the evidence of conversations and correspondence between the Union and the Q.S.S.U.E. relating to the former's intentions in serving the log on the Board in July 1979, is that it did not intend to proceed to seek an award "at that stage". I cannot impute motives of "non-genuineness" in the circumstances to a union seeking a finding of dispute with an employer upon whom it has served a log of claims in respect of employees it is entitled to enrol as members.

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.

The relevant principles are well established. The theory of the so-called "paper dispute" is that a dispute within the meaning of s. 51(xxxv) of the Constitution may be created by a formal demand and refusal: Reg. v. Graziers' Association of New South Wales; Ex parte Australian Workers' Union [31] . Nevertheless, such disputes must be real and genuine and seriously persisted in. This is always a question of fact and in proceedings for prohibition the fact must be determined by this Court on its independent view of the evidence: Caledonian Collieries Ltd. v. Australasian Coal and Shale Employees' Federation [No. 2] [32] . Of course, in a case where the jurisdiction of the Commission depends upon a question of fact, considerable weight will attach to the finding of the tribunal Commissioner. Unless that finding is manifestly wrong, the Court will hesitate very much before it will interfere. In the words of Isaacs J., "a doubt as to error is resolved in favour of jurisdiction": Caledonian Collieries Ltd. v. Australasian Coal and Shale Employees' Federation [No. 1] [33] ; cf., also, R. v. Blakeley; Ex parte Association of Architects etc. of Australia [34] .

1. (1956) 96 C.L.R. 317, at p. 333. 2. (1930) 42 C.L.R. 558, at pp. 577-578. 3. (1930) 42 C.L.R. 527, at p. 548. 4. (1950) 82 C.L.R. 54, at pp. 92-93.

The nature and role of an organization of employees registered under the Act is of great importance. It is not a mere agent of its members: " it stands in their place, and acts on their account and is a representative of the class associated together in the organization. It is, as my brother Higgins said, "a party principal", and "not a mere agent or figurehead". The acts and conduct of its members are relevant, no doubt, upon the question whether the dispute submitted to the Court by the organization or referred to it by other means is real or illusory, but otherwise their acts and conduct are immaterial": Starke J. in Burwood Cinema Ltd. v. Australian Theatrical and Amusement Employees' Association [35] .

This doctrine touching registered organizations is fundamental to a resolution of the problem in this case. It renders it less material to the creation of a dispute that the organization may have no members employed by the employer on whom the demand is made. The application of the doctrine in such a case was described in the judgment of the Court in Reg. v. Dunlop Rubber Australia Ltd.; Ex parte Federated Miscellaneous Workers' Union of Australia [36] in these terms:

a demand by an organization upon employers who employ at the time none of its members may put those employers in dispute with the organization as to the wages and conditions of its members if and when they are employed. It [i.e., the doctrine] is the basis, too, of the further decision that a like dispute may be raised as to the wages and conditions which such employers pay to non-members (Metal Trades Employers' Association v. Amalgamated Engineering Union [37] ). That basis is that not only need no present relation of employer and employee exist but that the organization making the demand does not act merely as an agent for its members. It acts in an independent capacity and it does so because it represents not definite or then ascertainable individuals but a group or class the actual membership of which is subject to constant change, a group or class formed by reference to an industrial relationship, usually depending upon an industry or calling. 1. (1957) 97 C.L.R. 71, at p. 81. 2. (1935) 54 C.L.R. 387.

The principle of the Metal Trades Case which is referred to in this passage was stated by Dixon J. in R. v. Commonwealth Court of Conciliation and Arbitration; Ex parte Kirsch [38] in a form approved by the Court in R. v. Kelly; Ex parte Victoria [39] as follows:

The principle upon which the decision rests is 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. As a result an industrial dispute may be raised by it with employers employing none of its members and an award may be made binding such employers and regulating the terms and conditions upon which they may employ unionists or non-unionists. 1. (1938) 60 C.L.R. 507, at pp. 537-538. 2. (1950) 81 C.L.R. 64, at p. 82.

Finally, it is established that when a log of claims is served and is followed by a refusal, the prima facie conclusion is that an industrial dispute exists. The onus of displacing that prima facie conclusion rests upon the prosecutor: Blakeley [40] .

In the context of this jurisprudence, it seems to me that the Union is in a strong position to resist the attack which the prosecutors have made on the genuineness of the dispute. It is true that it had no members in the employ of the Board, or indeed in Queensland at all at the material time, but that fact is not determinative of the issue. It is an organization representative of workers in the insurance industry, and it was therefore legitimate for it to evince an interest in the conditions in that industry of employees who were eligible to become members of the organization. Let it be assumed that there was an ulterior motive in attempting to secure an award, namely, to forestall a move into Queensland by the S.P.S.F. The existence of such a motive confirms rather than denies the reality of the dispute, and any change of policy reflected therein is explained by the apparent unwillingness of the S.P.S.F. to extend the existing arrangement to cover the Board. In the course of his evidence, Mr. Langmead, speaking for the Union, said:

It was, of course, to protect our coverage to the extent that we had received advice that the Queensland Workers' Compensation Board was free to be covered by anybody, so of course we wished to move in and attempt to gain coverage and an award for those people.

He explained that the drive for membership could wait until the right to cover was secured. The prosecutors relied heavily on the incongruity evident in the fact that the Union did not proceed against the S.G.I.O. which employed so many more potential members of the Union than the Board. On the other hand, it may be observed that there was no urgency in the case of the S.G.I.O. because the agreement with the S.P.S.F. secured to the Union exclusive access in due course to those employees at the federal level. There is some force in the assertion of Mr. McLeod in his evidence that it was for the Union and no one else to decide when and where its next move would be.

As for the argument based on the former policy of the Union not to seek awards with statutory authorities which employed public servants, it is surely refuted by the conduct of the Union in proceeding to serve the log on the Crown in right of the State of Queensland as soon as the public service character of the employment is discovered. The fact that the claim is then persisted in throughout contested proceedings occupying several days and concerned solely with the question of the genuineness of the claim does not advance the cause of the prosecutors.

Mr. Shepherdson relied on an unreported decision of Starke J. in a case intituled A. J. Swain & Co. Ltd. v. Australian Saddlery etc. Employees' Federation [41] . His Honour concluded his judgment with these words:

The creation or establishment of an industrial dispute is inherently difficult when employers have no members of an industrial organization in their employ, and when demands are made upon them merely for the purpose of "roping them in" and obtaining uniform conditions in Australia, although their employees are not behind and give no support to the demands. A claim made and refused in these circumstances does not constitute an industrial dispute, and I so find in fact. 1. High Court.; September 1936; Unreported.

The decision clearly is based on the facts of the case. If an analogy were to be drawn between the circumstances described by his Honour and the present case, one must test the conclusion against the doctrine of the role of the organization as it has been developed through later decisions of the Court. Although Starke J. dealt with Swain's Case shortly after his participation in the Metal Trades Case, his appreciation of the doctrine as expressed in the passage I have cited is difficult to reconcile with the formulation of the same doctrine by Dixon J. in Kirsch [42] , a formulation which has been referred to with approval in a number of later cases, including R. v. Kelly; Ex parte Victoria [43] , the Graziers Case [44] and more recently in Reg. v. Moore; Ex parte Graham [45] . Cf. also the extended discussion of the doctrine in Dunlop Rubber [46] . Present doctrine does not make the fact, if it be the fact, that "employees are not behind and give no support to the demands" of the organization determinative of the question whether or not a dispute exists, however relevant it may be to the exercise of the discretion to refrain from making an award. With respect I am unable to conclude that Swain's Case warrants a conclusion favourable to the prosecutors in the present case.

1. (1938) 60 C.L.R. 507. 2. (1950) 81 C.L.R. 64. 3. (1956) 96 C.L.R. 317. 4. (1977) 138 C.L.R. 164, at p. 176. 5. (1957) 97 C.L.R. 71, at p. 80ff.

There are, of course, features of this case which suggest that a strong case could be made out for the exercise by the Commission of the discretion conferred on it by s. 41(1)(d) of the Act to refrain from hearing a dispute if it appears that it is proper to be dealt with by a State Industrial Authority. The absence of federal coverage in Queensland in the past, the decision to proceed against the Board but not the S.G.I.O., the extensive hold of the State union over the employees both of the Board and the S.G.I.O., the professed wish of those employees to stay with the State industrial system, and the standard of the conditions of employment already enjoyed by the employees in question, are all considerations which would be pertinent to the exercise of the discretion to which I have referred. However, it was the expressed wish of the Board and the intervener, contrary to the suggestion of the Commissioner, that the question of the existence of a dispute should be dealt with before any question of discretion was considered. It must be emphasized that the considerations which I have mentioned are wholly irrelevant to the issue now before this Court.

In my opinion, the evidence supports the conclusion of Cohen J. in favour of the existence of a genuine industrial dispute.

I agree with the reasons for judgment of the Chief Justice and with the order he proposes.