R v Commonwealth Conciliation & Arbitration Commission; Ex parte Melbourne & Metropolitan Tramways Board [1965] HCA 50;

R v Commonwealth Conciliation & Arbitration Commission; Ex parte Melbourne & Metropolitan Tramways Board [1965] HCA 50; - HCA 1965 case summary — Zoe

[22]

16. In this case, in my opinion, the only basis for finding that a dispute extending beyond the limits of any one State existed was the failure of the addresses of the letter of 1st March to agree to its demands. In the course of the proceedings before the Commissioner, it appeared that he, having been assigned to this industry, presumably pursuant to s. 26 (1) of the Act, knew that there had been industrial trouble in various States because of the change-over from two-man to one-man operated buses and that there had in fact been interventions by the Commission to resolve difficulties which had arisen in such States in that connexion. He also knew that the question of the Union's opposition to the changeover from the two-man operation to the one-man operation of buses, certainly without notice to it and perhaps at all in some circumstances, was a live issue in more States than one. But none of this afforded material upon which it could be found that an inter-State dispute existed. It was not suggested that the dispute claimed by the Union to exist fell within the ambit of the original dispute in settlement of which the awards mentioned in the letter of demand had been made. The dispute as to the manning of buses operating out of the North Fitzroy and Port Melbourne depots of the Board was itself merely a local dispute. Whilst the time at which an "inter-State" dispute must exist is the time the award under challenge was made, and whilst in some circumstances such a dispute may emerge during proceedings under the Federal Act, in this case, the Union, on the one hand, has standing upon its letter and the transport authorities' representatives were not known to be authorized to do more than contest the claim that an inter-State dispute had arisen at the time of the commencement of the proceedings: and, failing in success in that respect, to contest the propriety of making an award in resolution of the dispute claimed by the Union then to exist. They were certainly not authorized to agree or to disagree with the Union in respect of any other demand than that contained in the letter of 1st March. The jurisdiction of the Commissioner both to entertain the matter and to make an award thus depend on the creation of a dispute by the failure or refusal to grant the demands contained in the letter of 1st March. (at p239)

[46]

TAYLOR J. On 4th March 1965 a Conciliation Commissioner made an award, the substance of which provided that "Notwithstanding anything contained in the Awards known as 'The New South Wales Government Omnibus Traffic Employees Award, 1963' and 'The Tramways Employees (Melbourne) Interim Award, 1958', the employers respondents to such Awards shall not, without the consent of The Australian Tramway and Motor Omnibus Employees' Association or by order of the Commission require an employee to operate on his own an omnibus on a route on which on or after 4th March 1965, tramcars or omnibuses had been operated by two or more employees". This was subject to what was called a proviso that the award should "not affect the right of such respondents to require an employee to operate on his own an omnibus at a time when or in a locality where an omnibus or tramcar was so operated before 4th March 1965." The award was expressed to be binding upon the Association referred to and the members thereof and upon the Commissioner for Government Transport, New South Wales, and The Melbourne and Metropolitan Tramways Board as to their employees members of the Association. Immediately before making this award the Commissioner had found that an industrial dispute within the meaning of the Conciliation and Arbitration Act 1904-1964 (Cth) existed between the Association and the respondent employers, The Commissioner for Government Transport of New South Wales, The Melbourne and Metropolitan Tramways Board, The Municipal Tramways Trust, Adelaide, and The Metropolitan Transport Trust, Tasmania, as to their operations in the States of New South Wales, Victoria, South Australia and Tasmania. Further he found that the subject-matter of the said industrial dispute was comprised in a log of claims served on behalf of the said Association on the said respondents. The so-called log of claims demanded that an additional clause should be added to each of four awards - The Tramway Employees (Melbourne) Interim Award 1958, The New South Wales Government Omnibus Traffic Employees Award 1963, South Australia Tramway and Omnibus Employees Award 1963, and Tasmania-Hobart Tramway and Omnibus Award 1957. The clause which the Association sought to have added consisted of two sub-clauses: (1) That all trams and buses run by you shall be manned by both a driver and conductor, and (2) Notwithstanding anything contained in the awards mentioned - That the abovementioned employers shall not without the consent of The Australian Tramway and Motor Omnibus Employees' Association or by order of the Commission of the Arbitration Court, require an employee to operate on his own, a bus on routes on which on or after 1st March 1965, trams or buses had been operated by two or more employees. (at p246)

[49]

4. To my mind it is, at once, both critical and important to determine whether that dispute was a dispute as to an industrial matter as defined by the Act. In my opinion, it was not. To describe the dispute, as was done at the hearing, as a dispute concerned with the manning of buses, is to use a loose expression which gives no clue to its essential nature. Of course, there may be disputes which may be so described and which will clearly fall within the definition of disputes as to industrial matters. Such would be the case if a log were served, and rejected, which sought to have defined by an award the circumstances in which one-man buses might or might not be operated. But a dispute as to whether an award should be made requiring an employer to refrain from operating a one-man bus on any particular route unless he first obtains the consent of the employees' organization, does not, in my view, constitute a dispute as to an industrial matter. It would not be a demand as to a matter "pertaining to the relations of employers and employees". Nor would it fall within the ambit of any of the various paragraphs of the definition of industrial matters. In R. v. Kelly; Ex parte State of Victoria [1950] HCA 7; (1950) 81 CLR 64 it was said that: "The words 'pertaining to' mean 'belonging to' or 'within the sphere of', and the expression 'the relations of employers and employees' must refer to the relation of an employer as employer with an employee" (1950) 81 CLR, at p 84 . The original awards binding upon the parties previously mentioned were silent concerning the conditions under which one-man buses might be operated. Indeed, any prescription in relation to that subject-matter would have been outside the ambit of the dispute in the settlement of which those awards were made (Reg. v. Commonwealth Conciliation and Arbitration Commission; Ex parte Melbourne and Metropolitan Tramways Board [1962] HCA 22; (1962) 108 CLR 166 ). The present award must, therefore, be held to have been made without jurisdiction unless the rejection of the relevant demand in this case, i.e., that one-man buses shall be operated on additional routes only with the consent of the employees' organization or pursuant to an order of the Commission, gave rise to a dispute as to an industrial matter. In my view such a demand in no way pertains to "the relations of employers and employees". Nor can it, in my opinion, be said to be within the "sphere" of those relations. It was simply a demand that an award should be made providing that no further one-man bus services should be introduced unless, in each case, the change was agreed to by the Association or, failing agreement, pursuant to an order of the Commission. The demand did not seek a specification by an award of the circumstances in which, or the conditions upon which, an employee might be called upon to operate a one-man bus; it simply sought an award which would leave it to the Association to say yea or nay in any particular case, and providing that in the event of disagreement each particular dispute should be settled by the Commission. It is true that an award in the terms of the demand would prohibit the operation of buses on additional routes by one man but it would be a conditional prohibition only and subject to relaxation, not by reference to any condition or conditions prescribed with respect to the relations of employer and employees inter se, but only by reference to the consent of the organization which it might, at its discretion, withhold or grant upon such conditions as it saw fit. The point may be illustrated by any number of examples. But one will suffice. Let it be supposed that the industrial relations of employers and employees in a particular industry are governed by an award made in settlement of a dispute which, in no way, related to the conditions to be satisfied before employees in the industry are promoted, or, for that matter, demoted. Suppose then a log is served by the employees' organization demanding that no employee of an employer bound by the award shall be promoted or demoted without the consent of that organization or pursuant to an order of the Commission. The rejection of such a demand could not be said to give rise to a dispute as to any matter comprised within the definition of "industrial matters"; the substance of such a demand would be a claim by an organization that it shall be accorded a right, jointly with the employer, to say in the future whether any particular employee shall be promoted or demoted and, to that extent, the relations between the employer and employee varied. A dispute as to whether an award shall be made giving a right of this character to an employees' organization is not, in my view, a dispute as to a matter pertaining to the relations of employers and employees or otherwise within the definition of "industrial matters"; it is a dispute as to whether employers, not otherwise restrained by any legal requirement, shall be at liberty, from time to time, to vary the relations between themselves and their employees only at the discretion of an employees' organization. I should add that the circumstance that the demand added as an alternative condition "or by order of the Commission" in no way affects this conclusion. (at p248)

[70]

13. The next ground relied upon by the prosecutor again occasions me no difficulty. Although it is clear that what is now claimed to be an industrial dispute extending beyond Victoria had its genesis in a local Victorian dispute, I do not think that the history of the matter of itself compels the conclusion that there was not a genuine dispute extending beyond Victoria arising out of the letters of demand of 1st March. To support the contention that there was no real or genuine dispute between the parties about the claim made in the letters of 1st March, the prosecutor relied upon Caledonian Collieries Ltd. v. Australasian Coal and Shale Employees' Federation (No. 1) [1930] HCA 1; (1930) 42 CLR 527 . The substance of that decision was that a local dispute in New South Wales did not spread to Victoria or Queensland because there was no disagreement between employees and their employers in the other States, notwithstanding that the employees in those other States stopped work to support the New South Wales employees in what remained a local dispute with their employers about wages. That case did not decide that a local dispute could not be made the occasion for a dispute extending beyond one State; it did decide that, notwithstanding the industrial action taken by the employees in Victoria and Queensland, there was still no dispute in the sense of dissidence between employees in Queensland or Victoria and their employers. Here, however, we have a demand by employees upon their employers in four States and, if that demand is in other respects capable of giving rise to an industrial dispute extending beyond one State, it is not to be disregarded or discounted simply because a party to a local dispute sought to attract the jurisdiction of the Commonwealth Conciliation and Arbitration Commission either by substituting for it a dispute extending beyond the limits of one Sate or by turning the local dispute into a more extensive dispute. It is not to the point to complain that the intention was solely to create an industrial dispute within the jurisdiction of the Commission. The question is whether, as a consequence of the action taken, there has been brought into existence an industrial dispute extending beyond the limits of one State. In the Caledonian Collieries Case [1930] HCA 1; (1930) 42 CLR 527 what had been done in the way of industrial action did not succeed in creating a dispute extending into Queensland or Victoria, but what requires examination here is whether the sending of the letters of 1st March did bring about one genuine industrial dispute between the Association and employers in more than one State. This brings me back to the letters themselves. (at p253)

[72]

15. In the next place, it was contended that the demand was incomprehensible. The demand, according to the terms of the letters, was for the amendment of the four awards by the insertion of an additional clause in each award to be entitled "2 man operation" and to provide, first, that all trams and buses should be manned by a driver and conductor and, secondly, that notwithstanding anything in the existing awards, the employer should not, without the requisite consent or order, require an employee "to operate on his own, a bus on routes on which on or after 1st March 1965, trams or buses had been operated by two or more employees". This much is, I think, clear - that if the first provision of the clause demanded were to stand alone, it would prohibit the operation of one-man trams or buses absolutely, while the second of itself would only prohibit the operation of one-man buses in specified circumstances and in the absence of the requisite consent or order - i.e. on a route upon which on or after 1st March 1965 trams or buses had been operated by two or more employees. In other words, the second provision would do no more than conditionally prohibit a change-over of the sort specified. The effect of each of the provisions, taken separately, being as I have stated, I see no way of reconciling them sensibly were it intended that they should stand together. Even if the operation of the first provision were to be regarded as subject to the second - and it should be observed that the "notwithstanding" clause by which the second provision is prefaced relates not to the first provision but to the existing awards - the combined clause would absolutely prevent the further operation of a one-man tram or bus upon a route where that form of operation was already established before 1st March 1965 but would, in certain circumstances, permit the change-over from a two-man bus system existing on or after 1st March 1965 to a one-man bus system. This could not have been what the Association was really demanding. Indeed, at the hearing the writer of the letter, in explaining it, said: - "It will be appreciated that both by decisions of this Commission and an agreement between the Australian Tramway and Motor Omnibus Employees' Association and the South Australian Trust and the Commissioner for Government Transport, New South Wales one-man buses are running at times throughout those two States. It is not the intention at this stage - there is no intention in this letter - to upset the work that is in existence. What we are saying is that it is the intention, if there is any further extension of one-man buses, this point comes to light. They cannot extend it unless by agreement with the association or by order of this Commission. That defines what it means and what it says; it is as plain as that. There is no intention on my part to ask you to order that one-man buses cease forthwith in those States". (at p254)

[75]

18. There is, however, another ground of greater importance upon which I think prohibition should go. The Association sought one variation of four existing awards. However the variation which was sought may be read, the second provision, if it were to become part of an award, would, as it seems to me, purport to confer upon a Conciliation Commissioner the power to hear and determine disputes of a purely local character - that is, a dispute between a particular employer and the Association as to whether there should be a change from two-man to one-man operation upon buses running upon a particular route. A dispute whether there should be a clause so providing in an award or awards would not, as I see it, be a dispute about an industrial matter; it would be a dispute about the way in which certain local industrial disputes, if they were to arise, should be settled. The practice of formulating industrial claims by a demand for an award in particular terms is one always apt to give rise to difficulties: see Reg. v. Graziers' Association of N.S.W.; Ex parte Australian Workers' Union [1956] HCA 31; (1956) 96 CLR 317, at pp 325, 326 , but when the award sought is, in reality, for the provision of machinery for the settlement of local disputes, the demand for an award cannot, in my opinion, give rise to an industrial dispute for the purposes of s. 51 (xxxv.) of the Constitution. In saying this, I am not casting doubt upon the validity of provisions in awards providing for boards of reference to supervise the carrying out of awards properly made. What I am concerned with is whether a dispute about how local differences should be settled is a dispute within s. 51 (xxxv.) of the Constitution, and I think it is not. The Commission cannot, by making an award to settle a dispute of that character, give itself power to make orders for the settlement of local disputes. That is what is really attempted here. Another way of putting the same point is to say that a demand for an award in terms presupposing the power of the Commission to make orders for the settlement of industrial disputes outside its constitutional competence cannot give rise to a dispute within the Commission's constitutional competence. (at p256)

[84]

6. On 2nd March a document signed by Mr. Coulthart was lodged at the Brisbane Registry of the Conciliation and Arbitration Commission notifying the Commission under s. 28 of the Act of the existence of an industrial dispute or of a situation likely to give rise to an industrial dispute between the Association and the transport authorities which I have mentioned earlier "with respect to the matter set out and attached hereto". Attached to the document was a copy of the letter of 1st March. On the same day the conference before the Conciliation Commissioner was resumed, when the representative of the Board renewed his objection that no inter-State dispute existed and asked that the Commissioner in charge of the "Tramways Industry", Mr. Commissioner Horan, should consider the question. Later in the day a telegram was received by the Board from the Deputy Industrial Registrar of the Conciliation and Arbitration Commission in Brisbane notifying that a dispute between the Association and the various transport authorities "re manning of trams and buses" had been set down for hearing before Mr. Commissioner Horan in Sydney on 4th March. On that day, representatives of the Association and of the various transport authorities, including the Board, appeared before Mr. Commissioner Horan. Mr. Coulthart represented the Association, Messrs. Reid and Miller the Board, Mr. Lindsay the Municipal Tramways Trust of South Australia, and Mr. Larkin the New South Wales and Tasmanian transport authorities. The transcript of the proceedings shows that Mr. Coulthart opened the proceedings by placing before the Commissioner a copy of the letter of 1st March. The Commissioner said that the first matter to be considered was whether an inter-State dispute existed and asked whether there had been "any agreement on the demand". Mr. Coulthart replied that no agreement had been reached or, at least, that he had not been informed of any such agreement. The Commissioner asked Mr. Reid, "Is there any agreement?" In reply Mr. Reid pointed out that the letter required compliance with the Association's demand within 24 hours from 1st March. "How", he said, "could we have complied with that demand within the time stated?" The Commissioner said, "At least you have had time to comply now. Are you agreeing to the Union's demand?" Mr. Reid replied, "No, Sir, we do not agree to the demand". Mr. Lindsay said that the reference in the letter to "the Commission of the Arbitration Court" bewildered him because he knew of no such body, but added, "Certainly we do not agree to it and the sense of the text of it". He said further that, to the best of his knowledge, there was no dispute as to the operation of one-man buses in Adelaide and that, as far as he knew, there had been no general meeting of members of the Association such as was mentioned in the letter. After referring to the "almost indecent haste that seems to surround this whole matter", he said that this had made it difficult for the South Australian authority to examine the matter and that it was "extremely difficult to understand exactly what is being asked of us first of all and secondly we doubt whether or not the situation in South Australia is as has been suggested in this letter". Mr. Reid, after referring to the doubts expressed by Mr. Lindsay as to whether there had been a general meeting of members of the Association, said that a subpoena had been served on the General Secretary of the Association to produce books and records relating to the meeting in question and asked whether they were available. The Commissioner said that that could be dealt with later and asked Mr. Larkin whether he had anything he wished to put. Mr. Larkin replied he was at a loss to understand the full extent of the demand and that there was, he thought, a conflict between the clauses numbered 1 and 2 in the letter. He denied that any dispute existed "at present" in New South Wales although there had in the past been "differences as to one-man operation". After some further discussion Mr. Coulthart stated that, if a finding of the existence of a genuine dispute was made, an "immediate investigation into Clause 1" would not be pressed but that, as to cl. 2, the Association asked that the claim should be considered and determined immediately. Asked by the Commissioner to explain what was the claim he was making on behalf of the Association, he said: "I will do that, but I must make this statement for a start. It will be appreciated that both by decisions of this Commission and an agreement between the Australian Tramway and Motor Omnibus Employees' Association and the South Australian Trust and the Commissioner for Government Transport, New South Wales, one-man buses are running at times throughout those two States. It is not the intention at this stage - there is no intention in this letter - to upset the work that is in existence. What we are saying is that it is the intention, if there is any further extension of one-man buses, this point comes to light. They cannot extend it unless by agreement with the Association or by order of this Commission. That defines what it means and what it says; it is as plain as that. There is no intention on my part to ask you to order that one-man buses cease forthwith in those States." (at p261)

[100]

10. The contention that the two clauses are irreconcilable is, I agree, a weighty one although I would have thought that the letter might reasonably have been read as making alternate claims. But even on that assumption I would not have been prepared to draw an inference that a dispute came into existence from the mere fact that there was no compliance with the demands before the matter came before the Commissioner. But these are not the only facts to be considered. The relevant time to which regard must be had in considering the question of jurisdiction is when the Commissioner made his award: Reg. v. Blackburn; Ex parte Transport Workers' Union of Australia [1953] HCA 55; (1953) 88 CLR 125 . The passages from the transcript of the proceedings which I have quoted earlier show that whatever inconsistencies there may have been in the letters of demand, Mr. Coulthart, at the Commissioner's request, made it plain at the conference that the Association's immediate claim was to have an award made which would prevent the introduction thereafter of buses manned by one man without its consent or an order of the Commission. And it seems to me to be equally plain that the representatives of the Board and of the New South Wales transport authority rejected the claim as defined by Mr. Coulthart. It was not a case in which the claim made before the Commissioner was one entirely different from that which had been made in the letters of demand. If it had been such a case it might well be that it could not properly be inferred that the representatives of the transport authorities had authority to accept or reject it. But whatever difficulty there might be in reconciling the two clauses, the letters made it clear that the association was seeking to have some limitation imposed by an award upon the power of the employers to institute and operate one-man bus services and when the extent of the limitation sought was explained by Mr. Coulthart, no request was made for an adjournment so that the claim, as so defined, might be considered. No suggestion was made then or before this Court that the representatives of the two employers against which the award was later made had no authority to reject the claim as defined and in all the circumstances I think it should be held that those representatives had authority to do what they did, namely to refuse to accede to the Association's claim as stated before the Commissioner. For all these reasons I am of opinion that at the time when the award was made there did exist a dispute between the Association and the two transport authorities which were made parties to the award. (at p264)

At a glance

Court

Decision date

Before

Source

Judgment (103 paragraphs)

R v Commonwealth Conciliation & Arbitration Commission; Ex parte Melbourne & Metropolitan Tramways Board [1965] HCA 50; (1965) 113 CLR 228 (9 September 1965)

Parties

Legislation Cited (1)

Cases Cited (7)