R v Commonwealth Conciliation and Arbitration Commission; Ex parte Melbourne and Metropolitan Tramways Board

The question to be decided is whether an award and an order of variation made by the Senior Commissioner of the Commonwealth Conciliation and Arbitration Commission were beyond his jurisdiction to make. We are concerned with nothing but his jurisdiction and that depends primarily upon the Commonwealth Constitution which in such a case as this makes it impossible that he should have jurisdiction unless his award and his order respectively related to the prevention or settlement of an industrial dispute extending beyond the limits of any one State. If they do not do so writs of prohibition must go to prevent their being put into operation or enforced. But we have nothing to do with the industrial merits, that is the industrial propriety or wisdom, of the course which the Senior Commissioner took, only with his jurisdiction to take it. The subject of the two documents, that is of the award and of the order of variation, is the use by the Melbourne and Metropolitan Tramway Board of one-man buses on certain routes except at given times. The routes actually in question were operated by the Board in Footscray (Melbourne) and the service had been by tram cars from the Footscray depot. These were discontinued and it was decided that the routes should be serviced by motor omnibuses, each staffed by one man. There are other routes which the Board had operated with one-man buses.

When for the routes in Footscray now in question rosters were prepared for a one-man bus service to take effect as from Monday, 12th March 1962, the employees refused to staff and operate the service in that manner on the routes in question. Until the change they had been tram routes on which two-men trams had been run.

The working conditions of the service are governed by an award of the Conciliation and Arbitration Commission called The Tramway Employees (Melbourne) Interim Award 1958, as amended. It contained a wage rate for a "one-man bus operator" but otherwise did not deal with the subject. The basis of jurisdiction for that award was an industrial dispute arising from a log of claims for wages and conditions of employment by the Australian Tramway and Motor Omnibus Employees Association served upon tramway and bus authorities in Victoria, South Australia and Tasmania. No one denies that an inter-State dispute arose out of the service of the log in relation to the subjects which the log covered; but it did not cover the question of the use of one-man buses at Footscray or indeed at any place. In this situation the Association on 14th March 1962 filed in the Principal Registry of the Commonwealth Arbitration Commission an application for a variation of the award. The variation sought was the addition of a clause providing as follows: "There shall be no alteration from two-man operation to one-man or from one-man to two-man without agreement with the Union, failing agreement, by order of the Commission". By way of grounds the application said that the Board had discontinued the use of two-men trams at Footscray and had substituted one-man buses. It added that the Chairman had indicated that all buses should be operated by one man and that the question had led to an industrial dispute and, further, that members of the Association were deeply concerned with the change over. After hearing representatives of the Association and of the Board, the Senior Commissioner on 20th March 1962 made the award and order of variation against which the Board now seeks writs of prohibition. It is of course evident that the jurisdiction of the Senior Commissioner to make any order was in question and no doubt the award and order of variation were made as alternatives, for their substance is the same. The validity of the award might be supported by a new dispute if it extended beyond the limits of one State while the validity of the variation might be supported by the old dispute arising from the log (which did extend beyond one State) if only something could be found in it covering the subject matter. What in substance the award and order of variation did was to direct that the Board should not without the consent of the Association or the order of the Conciliation and Arbitration Commission require an employee to operate on his own (sic) a bus on a route on which on or after Friday, 9th March 1962, trams or buses had been operated by two or more employees; provided that the right should not be affected of the Board to require an employee to operate on his own a bus on routes at a time when or in a locality where a bus or tram was so operated before Friday, 9th March 1962. The proviso preserved the Board's right to continue to man a bus with one man at times, e.g. Saturday afternoons or Sundays, when that had formerly been the practice.

The difficulty felt as to the jurisdiction to make the order or award remains unsolved. The Senior Commissioner was much troubled about the difficulty but considered there was enough to warrant his intervention. But this view cannot be sustained. Counsel for the Association made valiant efforts to find a jurisdictional basis for one or other of the two documents, the award or the order of variation, but as the argument advanced it became only too certain that no tenable ground of jurisdiction existed. An order of variation introducing in an award a new restriction or obligation needs for its jurisdictional support a relation to the original industrial dispute extending beyond one State which is sufficient to bring it within its scope. It is unwise to attempt to define that relation in the abstract and it is quite unnecessary in a case like this where the subject matter is plainly outside the demands the refusal or disregard of which gave rise to the dispute and is not incidental to them. It was suggested in this case that notoriously in all States proposals to use one-man buses aroused the embers of industrial controversy, and further that the settlement by award of the original dispute might be endangered by the Board's decision and so could be safeguarded by some provision about one-man buses such as that made by the Senior Commissioner. This argument is an attempt to treat as merely incidental to some general conception of what is inherent in the settlement of the original dispute what in truth is an independent question or controversy affecting management or the control of management by industrial regulation. It has no foundation.

As to the award, no basis appeared at all for the theory that a new industrial dispute had arisen which extended into any other State. Plainly it did not so extend. It was a local matter and it is nothing to the point that in other States similar local disputes had arisen from time to time. The fact is that the award of the Senior Commissioner and his order of variation are alike outside the constitutional jurisdiction of the Commissioner. Accordingly the orders nisi must be made absolute.