Conciliation and Arbitration (Cth) - Industrial Arbitration (Cth) - Commonwealth Conciliation and Arbitration Commission - Jurisdiction - Award - Industrial dispute extending beyond limits of any one State - Existence - Order of variation of award - Evidence required - Claim for award involving consent of employees - Whether industrial dispute - Industrial dispute - Certainty and clarity of plaint - Claim for award under &which local disputes may be dealt with - Industrial matters - The Constitution (63 & 64 Vict. c. 12), s. 51 (xxxv.) - Conciliation and Arbitration Act 1904-1964 (Cth), s. 4 (1) "industrial matters."

BARWICK C.J. The prosecutor in this application to make absolute a rule nisi and the respondents are the Commonwealth Conciliation and Arbitration Commission (the Commission) and John Patrick Horan, a Conciliation Commissioner (the Commissioner), The Australian Tramway and Motor Omnibus Employees' Association Union (the Union), and the Commissioner for Government Transport of the State of New South Wales (the N.S.W. Transport Commissioner). The application is to prohibit any further proceedings upon an award made by the Commissioner on 4th March 1965 whereby he ordered that: "Notwithstanding anything contained in the Awards known as 'The New South Wales Government Omnibus Traffic Employees Award, 1963'; and 'The Tramway 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. Provided that this Award shall 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." (at p233)

2. This award was expressed to be binding upon the Union and its members, and upon the N.S.W. Transport Commissioner and the Board as to their employees who are members of the Union, to come into operation on 4th March 1965 and to remain in force until 4th June 1965. It purported to be made in settlement of an industrial dispute extending beyond the limits of one State which the Commissioner found to exist between the Union on the one hand, and the Board, the N.S.W. Transport Commissioner, the Municipal Tramways Trust of the State of South Australia and the Metropolitan Transport Trust of the State of Tasmania on the other. He found that the subject matter of the dispute was comprised in a log of claims served on behalf of the Union on the abovenamed persons and bodies. (at p234)

3. The log of claims to which the Commissioner's finding refers is contained in a letter dated 1st March 1965 which was addressed by the Union to each of the abovenamed transport authorities. I set it out verbatim rather than attempt to epitomize it -

"I have been directed by the Australian Council of the

Australian Tramways and Motor Omnibus Employees'

Association,

to serve this letter of demand on you, arising out of the

following resolution carried by Council.

'The Australian Council of this Association met on 1st

March 1965 and directed me to serve a letter of demand on

employers in every State in which Awards of the

Commonwealth

Conciliation and Arbitration Act covers members of

this Association.

That an additional clause be added to all Awards mentioned

below, entitled 2 man operation.

1. That all trams and buses run by you shall be manned by

both a driver and conductor.

2. Notwithstanding anything contained in the Awards known

as The Tramway Employees' (Melbourne) Interim Award, 1958.

New South Wales Govt. Omnibus Traffic Employees' Award, 1963.

South Australia Tramway & Omnibus Employees' Award, 1963.

Tasmania-Hobart Tramway and Omnibus Award, 1957.

That the abovementioned employers shall not without the

consent of the Australian Tramway & 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'.

This decision follows a resolution carried by the General

Meeting of the members of the above Association.

The Australian Council therefore demands of you, that unless

within 24 hours of the date hereof, you comply with this demand,

the Union will take appropriate steps under the Conciliation

and Arbitration Act.

For and on behalf of the claimant Union, dated 1st March

1965." (at p234)

4. On or before 22nd February 1965 the Board had decided that, for the future, buses operated by two men, a driver and a conductor, should be replaced on two particular routes in Melbourne by buses operated by one man only. On that date it wrote to the Union a letter advising them of this proposed change, offering the reasons why it felt the change justified and stating that the new rosters would be posted during the week in which the letter was written. The letter also indicated that arrangements would be made for the conductors and conductresses who would become supernumerary because of the change-over in operations to be posted elsewhere, their wishes in this respect to be considered. (at p235)

5. The rosters for the changed operation were posted at the appropriate depots of the Board on 23rd February. On 24th February members of the Union employed by the Board at these depots held a stop-work meeting of some four hours' duration and passed a resolution "that North Fitzroy and Port Melbourne members refuse to operate the tables as set down for Monday, 8th March, and that all crews are instructed to report for duty as rostered previously". (at p235)

6. On 26th February the Union notified a Commissioner of an industrial dispute or situation between the Union and the Board with respect to the following: "in the alteration of the roster at North Fitzroy and Port Melbourne depots by the alteration to the work of drivers and conductors . . . ". On 1st March a compulsory conference was summoned by a conciliator. The Board appeared by a representative at this conference and took an objection to the conciliator dealing with the matter on the unquestionable ground that there did not then exist an inter-State industrial dispute within the Conciliation and Arbitration Act 1904-1964 (Cth). The conciliator then adjourned the proceedings. (at p235)

7. The letter of 1st March followed, undoubtedly because of the fate of the compulsory conference. It was despatched on that day by ordinary post to the several addressees. According to the material before this Court, it was received by the Board at 10.49 a.m. on 2nd March; there was no material as to when it was received by other addressees. Having regard to the terms of the letter, the period of time set by the Union for compliance with its claims by the Board would have run out at midnight on 2nd March. It would have expired at later times for the other respondent transport authorities. (at p235)

8. On 2nd March the Union, pursuant to s. 28 of the Conciliation and Arbitration Act 1904-1964 (Cth) (the Act), notified the Deputy Industrial Registrar of the Commission in Brisbane of the existence of an industrial dispute, or of an industrial situation which was likely to give rise to an industrial dispute between itself and the four transport authorities with respect to the contents of the letter of 1st March. The Deputy Industrial Registrar thereupon notified the four transport authorities that the dispute referred to in the notification given by the Union had been set down for hearing by the Commissioner at 2.15 p.m. on Thursday, 4th March, at Phillip Street, Sydney. On that date a representative appeared for the Union and representatives appeared for the four transport authorities. (at p236)

9. The proceedings were conducted before the Commissioner by a statement being made by the General Secretary of the Union, who was also the advocate for the Union for the purposes of the application, as to the circumstances in which the dispute which he claimed to exist had arisen, and as to the general considerations, some argumentative and some matters of fact, which the Union advanced for the making of an award in settlement of the dispute claimed to exist. (at p236)

10. The representatives of the several transport authorities did not seek to adduce any evidence before the Commissioner, but one of them called his attention to the fact that there was no evidence of the facts stated by the General Secretary. They did seek to obtain the minutes of the general meetings of the Union in order to challenge the statement in the letter of 1st March that the decision of the Council of the Union had followed a general meeting of the members of the Union, but, the minutes not being produced, that matter does not seem to have been further pursued. But there was no request at any stage for an adjournment of the proceedings to enable the evidence to be obtained or to permit the statements of the General Secretary to be checked, though great emphasis was placed, and rightly placed, upon the brevity of time the transport authorities had had to consider the contents of the Union's demand. (at p236)

11. However, it was plain at the inception of the proceedings before the Commissioner that the transport authorities did not agree to the making of an award to contain a clause limiting their discretion to operate their bus schedules by buses controlled by one man only. The questions as to whether or not there existed a dispute of the requisite kind and whether or not there was occasion for the making of an award in the terms sought were debated before the Commissioner. It was said that the Union's letter was contradictory in terms and so obscure and uncertain in its meaning that it was not capable of forming the basis of an agreement; and, therefore, of any disagreement. (at p237)

12. During the course of the discussion before the Commissioner, the Union said that it was not pressing its claim to a clause in terms of the paragraph numbered one in its letter of 1st March, and that that matter could stand over. It was not abandoning that claim; indeed, it indicated that it regarded the parties as in dispute as to that part of its claim so that there would remain outstanding an unresolved dispute to which it was free to return, and in respect of which it was free to seek an award at some later stage. (at p237)

13. The Union stated that it regarded the two paragraphs of its letter of demand as alternatives, not in the sense that, if one were granted, there ceased to be a demand for the other: but in the sense that they were separate parts of the demand, the one not merely a qualification of the other so as to form one entire claim or demand. The Union explained that its demand for a clause in terms of paragraph numbered two in the letter was that, without its consent or an order of the Commission, there should be no change from two-man operated buses or trams to one-man operated buses or trams in respect of any routes which were worked by a two-man bus or tram on 1st March; that is to say, by this demand, it merely sought a provision that there should be no change in the future to one-man operation on certain routes without the concurrence of the Union or of the Commission. (at p237)

14. Before the Commissioner, it was pointed out that there existed in Tasmania no two-man operation of buses so that there was no question of any change in operation of buses under the control of the respondent authority in Tasmania. It was also pointed out that there was a satisfactory working arrangement between the Union and the transport authorities of South Australia, which at the moment at least obviated any current dissension; and that therefore there was no urgency to make any present provision with respect to operations in South Australia. It was agreed between the Union advocate and the representatives of these two respondents that the application of the Union for an award against these two respondents should stand over: and this was done. (at p237)

15. The grounds upon which the rule absolute is sought are first, that the letter of demand is so contradictory and unintelligible that failure or refusal to comply with its claims was not capable of giving rise to any dispute; second, that the Commissioner could have no jurisdiction to make the award which he purported to make inasmuch as the award was not made for the prevention of or settlement of a real and genuine industrial dispute extending beyond the limits of any one State; third, that the award was not made in the exercise of any power or jurisdiction given by the Constitution or the Act to the Commissioner in that he did not attempt to secure the agreement of the parties to any proposal for the settlement of the dispute and that he did not hear evidence of any facts upon or with respect to which the power to arbitrate between the parties could be validly exercised; fourthly, that any dispute which may have existed between the parties was not an industrial dispute in that it did not relate to any industrial matter; and, fifthly, that to make an award with respect to the manning of buses as asked by the Union would be to make too great an inroad into management and would really go beyond anything which the Commission either could or ought to do in that direction. (at p238)

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)

17. It is settled that a Union demand on employers in the same industry in more than one State can give rise to an inter-State dispute. However, though formally there may be such demand and refusal, it is still necessary that the dispute be a genuine dispute of the requisite kind: and it must be the same dispute with each of the employers in the States concerned. Where the definition or extent of the dispute is to be found in a written demand for agreement, ambiguity in the terms of the demand may mean that the demand has been understood or refused in a different sense by the various employers in different States, thus raising the question whether there is in reality one dispute with all those employers or several different disputes each with an employer or employers in one State only. But though it is essential to ensure that the dispute arising out of a written demand for agreement is real, single, and inter-State in its nature, the language of the written demand must be read with some liberality so that its substance can be ascertained, bearing in mind the particular area of industrial relations against the background of which it must be read and interpreted. (at p239)

18. Yet though not a pleading the demand must be sufficiently precise to enable not merely the existence but the ambit of the dispute to be determined. The facility of making a dispute and of setting its bounds by written demand and refusal or failure to agree imports the need for precision in the concept which is sought to be conveyed by the writing if not in its expression. It must be possible to perceive with confidence what it is that is demanded and likewise to conclude that that which is seen to have been demanded must be treated as having been denied by the person or persons on whom the demand is made, whether by express refusal or by failure to agree: see Reg. v. The Association of Professional Engineers of Australia; Ex parte Victoria [1957] HCA 95; (1957) 100 CLR 155, at p 162 . Thus the question is whether, on a fair reading of the letter of 1st March, the Union conveyed to each of the addressees of the letter the same comprehensible demand. (at p240)

19. It was said by the applicants that, even if this question could be affirmatively answered, the difference resulting from the failure or refusal to agree to the demand in the letter of 1st March did not evidence a real, but only a simulated dispute because the occasion for the making of the demand was the failure of the attempt to obtain a compulsory conference and the reason for the demand was the desire to create a situation in which the existing local dispute in Victoria could be dealt with by the machinery of the Commission. But, in my opinion, granted that the letter of 1st March was both occasioned and motivated as suggested, it cannot be held that, if a dispute resulted, it was not a real dispute. The Union clearly desired by an award provision to restrict the discretion of each and every one of the addressees of the letter of 1st March to operate one-man buses according to the independent decision of each transport authority. Whilst the isolated disturbances in the other States may not be aggregated to form an inter-State dispute, they evidenced the reality of the Union's desire for a lawful means of participating in the decision to place one-man buses in operation in any of the transport systems conducted by the four transport authorities on whom the letter was served. The instant circumstances are not in any way comparable to those the subject of decision in Caledonian Collieries Ltd. v. Australasian Coal and Shale Employees' Federation (No. 1) [1930] HCA 1; (1930) 42 CLR 527 . (at p240)

20. It may be, of course, that when the letter of demand is closely examined, it does not convey what the Union really intended to demand. That may afford a reason for saying that a failure to agree to what the Union did not intend to demand does not give rise to a real dispute. (at p240)

21. But to decide that the Union genuinely disired the award provision which it sought and that the transport authorities really resisted the insertion in the awards of any provision dealing with the subject matter of the demand is not to decide what is here, in my opinion, the principal question, namely, whether the terms of the letter were such that each transport authority ought to have understood what was in truth the Union's demand, and ought to have done so in the same sense, so that refusal or inaction on their part evidenced a single indentifiable dispute. (at p240)

22. The written demand in terms is for the insertion of a provision in the four named awards. The addition of the clauses to these awards was presumably desired to be effected under the power to vary an award given by s. 59 of the Act, but on the footing of a new dispute. These awards were made in settlement of what was presumably one inter-State dispute between the Union and the various transport authorities in Australia. Perhaps because of local differences of operation by the various transport authorities, it was presumably found convenient to make an award for each State authority, in settlement of the one inter-State dispute with them all, rather than one award expressed to bind all the disputant transport authorities with some provisions varied to suit the local conditions of the transport operations in particular States; and as thus varied binding only in those respects upon one of the respondent transport authorities. However, the demand of the Union is not claimed to be within the ambit of the original dispute so that, except for one aspect of the matter to which I shall later refer, nothing turns, in my opinion, on the circumstance that the awards sought to be varied are awards each applicable to operations in one State. (at p241)

23. In my opinion, the letter of 1st March cannot be read as merely demanding that the transport authorities to whom it was addressed should agree not to make any changes in the manner of operation of buses without the concurrence of the Union or of the Commission. However much one seeks to avoid a narrow interpretation of the language used and to find in the letter the substance of the Union's demand, one is driven, in my opinion, to the conclusion that the inclusion in the named awards of particular provisions as drafted was the whole substance of the demand. It may well be that the Union and the transport authorities were at some time in disagreement as to whether or not those authorities should be free in the management of their respective transport systems to effect those changes in the manner of operation of their buses without consultation with the Union or the concurrence of the Commission. But that difference, if it existed, did not arise out of the letter of 1st March and the attitude thereto of its addressees. The letter cannot be read, in my opinion, as demanding that the transport authorities' power to decide each for itself the manner of operation of its buses should be subjected to control by the terms of an award, the clause included in the letter being put forward merely as possibly a method or methods of effecting that control. (at p241)

24. I have come to the conclusion therefore that, in substance, as well as in form, the demand of the Union was for the variation of the specified awards by the insertion therein of a clause in the specific terms selected by the Union and set out in the letter. Of course, such a demand, assuming the requirements of the Act otherwise to be satisfied, could give rise to a dispute which could be settled by the making of an award inserting in the awards a clause or clauses in different terms to those specified in the demand, though still within the area of the dispute demonstrated by the demand and the refusal or failure to agree. (at p242)

25. I now turn to examine the terms of the clause proposed for insertion in the awards. In the first place, in my opinion, the letter seeks the inclusion in the awards of a single clause, entitled two-man operation, that clause to consist of two parts. The letter, in my opinion, does not propose that one clause should be added which should consist of one part only, that part being either the portion numbered one or the portion numbered two. The letter does not seek one clause out of two possible alternatives. Indeed, the Union advocate disavowed such a position. The demand was for agreement to a clause containing both paragraphs. (at p242)

26. The first paragraph of the proposed clause seeks in terms to require that, without qualification, all trams and buses from the time of its insertion in the awards shall be manned by both a driver and a conductor. This would mean that the transport authorities bound by the awards would have forthwith upon the variation of the awards to convert the existing operation of all trams and buses by one man into an operation by two men irrespective of the time for which they had been so operated. (at p242)

27. The second paragraph of the suggested clause would prevent the transport authorities, without the concurrence of the Union or of the Commissioner, requiring an employee to operate a bus alone on a route on which on the date of the making of the demand buses had been operated by two employees. This provision, unlike the first paragraph of the clause, is to be paramount over the existing provisions of the awards, including the provisions of the first paragraph of the clause demanded by the letter to be written into the awards. (at p242)

28. The second paragraph could be read, in my opinion, as a qualification or relaxation of the provision in the first paragraph. Under the first paragraph all routes would become operated by two-man trams and buses, but, notwithstanding that provision, certain, but only certain, routes might be converted to one-man operation with the concurrence of the Union or the Commission. That would mean that routes operated by one-man buses or trams at the date of the demand would, without further variation of the award, be unalterably converted to operation by trams or buses manned by two men. (at p242)

29. But though this is a possible accommodation of the two paragraphs, it is unquestionably not what the Union had in mind in making its demand. Indeed, I read the Union advocate's submissions to the Commissioner as disclaiming any such intention. If the Union was not really demanding a clause in the award to so provide, the letter did not promote a dispute about the inclusion of a clause in the award in those terms. (at p243)

30. If, as I have indicated, the demand is not made in the alternative and the possible reading to which I have referred is not the intended demand, I am unable to give to the letter any certain meaning which, upon a fair reading of it, the Union intended and all of its addressees ought to be taken as having understood, and as having refused to accept. Consequently, in my opinion, the letter of 1st March was insusceptible of forming the basis of a dispute and particularly a dispute of the requisite kind. (at p243)

31. Although I would for this reason make absolute the rule for prohibition, I think it is appropriate that I indicate that, in my opinion, there is no substance in the other grounds taken by the prosecutor. (at p243)

32. I have already said that, if the letter had conveyed a comprehensible demand intended by the Union and to be understood in the same sense by each of the addressees, there would have been no room, in my opinion, to doubt the reality of the dispute which would have resulted from failure to agree to its terms. (at p243)

33. The Commissioner was not disentitled to act upon the assertions of the Union advocate, merely because they were not made on oath, or because he might not have been competent as a witness according to the ordinary rules of evidence to make them. No doubt, if the correctness of his assertions were challenged, it would at the least be imprudent on the part of the Commissioner not to have further examined the matter, so as to satisfy himself of the actual facts, if need be, by evidence formally given. But there was nothing in the instant case which, it seems to me, the Commissioner might not properly regard in the circumstances as sufficiently "evidenced" by the statements of the Union advocate. (at p243)

34. Further, it seems to me that to impose restrictions on the discretion of the management of a transport system to change the manner of operation of its vehicles in the relevant respects both involved an industrial matter and did not exceed the power of the Commissioner. (at p243)

35. Finally, I indicated earlier that there was an aspect of the matter to which I would later make reference. The variation of the awards which the Commissioner purported to make on 4th March 1965 prevented a change in operation of tramcars or omnibuses to operation by one-man only on routes which were not so operated at the time of the variation, except with the consent of the Union or upon the order of the Commission. No doubt the question whether or not an order should be made in this respect by a Commissioner will be determined most probably, though not necessarily, upon considerations of a purely local character. But this does not mean, in my opinion, that if there had existed a dispute with a sufficient ambit to support such an award, the Commission, in inserting a clause in the awards preventing the change-over to one-man operated trams or buses without an order by the Commission, was merely setting up machinery for the resolution of future intra-State disputes. If the proper view of the award was that it did no more than this, I would think it clearly beyond the competence of the Commission. But where there is a dispute which will support an award prohibiting some act without an order of the Commission and such a provision has been awarded, the making of an order giving the transport authority on a State authority to effect a change in operation of its trams or buses, even though made after local dissension between the members of the Union locally employed and the transport authority the order is not, in my opinion, the resolution of a dispute in the relevant sense any more than the determination by a Board of Reference after a contest before it of a matter committed to it by an award is relevantly the resolution of a dispute. (at p244)

36. The question whether a claim to an award prohibiting a course of conduct such as in the present case, unless with the agreement of the Union can give rise to an industrial dispute or justify the making of an award in such terms, is a different question. In the view I have taken of the matter it does not arise for decision in this case and I express no opinion upon it. (at p244)

37. In my opinion, the rule nisi for prohibition should be made absolute. (at p244)

KITTO J. In my opinion the order nisi should be discharged for the reasons which appear from the judgment prepared by my brother Owen. (at p244)

2. Perhaps I should say specifically that the industrial dispute extending beyond the limits of any one State, which in my view existed at the time of the impugned award and in settlement of which I am of opinion that the Commissioner had authority to make that award, was a dispute as to an industrial matter within the definition in s. 4 (1) of the Conciliation and Arbitration Act 1904-1964 (Cth). namely a matter affecting or relating to work done or to be done (par. (a) of the definition), because it was a dispute as to whether, on a particular class of routes, an employee driving a bus might be required by his employer to perform a conductor's work as well as the driver's without the consent of the Association or an order of the Commonwealth Conciliation and Arbitration Commission. (at p245)

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)

2. It will be observed that the log took the form of a demand that a specific clause be added to the awards in question, that the clause consisted of two substantive parts and that these parts were inconsistent with one another. Sub-clause (1) was in general terms and if it had been given the force of an award it would have made it unlawful for the public transport authorities bound by it to operate any tram or bus manned by one man alone. Sub-clause (2), however, if given the force of an award, would have permitted the authorities to continue the operation of one-man buses on routes upon which they had theretofore operated but would, for the future, have precluded any further development of this practice except with the consent of the Association or by order of the Commission. (at p246)

3. Much was made of the conflicting nature of these inconsistent demands and the question arose whether they were capable of originating an identifiable industrial dispute. Further it was argued that, in the circumstances of the case and particularly having regard to the unreasonably brief period limited by the demand for its acceptance or rejection, there was no basis for the finding that an inter-State dispute existed upon the expiration of that period. But for the purposes of the case I am prepared to pass these contentions by and to assume, as Owen J. has held, that subsequent events in the proceedings before the Commissioner gave rise to a dispute and that the substance of this dispute was a disagreement as to whether an award should be made which would have the effect of preventing the introduction thereafter of further one-man buses without the consent of the Association or an order of the Commission. (at p246)

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)

MENZIES J. The facts upon which we must decide whether the order in respect of which prohibition is sought was made to prevent or settle an industrial dispute extending beyond the limits of one State, require careful statement. (at p248)

2. There were in force on 1st March 1965 four awards made by the Commonwealth Conciliation and Arbitration Commission relating to government tramway and omnibus authorities and their employees. These were: The Tramway Employees' (Melbourne) Interim Award 1958, the New South Wales Government Omnibus Traffic Employees' Award 1963, the South Australia Tramway & Omnibus Employees' Award 1963, and the Tasmania-Hobart Tramway and Omnibus Award 1957. Each of these awards covered members of the respondent Association, and I shall assume that the Association was itself party to each of them. It was certainly party to the first-mentioned award. (at p249)

3. On 1st March 1965 the General Secretary of the Association sent a letter in the following terms to each of the four employers bound by one of the above awards: - "I have been directed by the Australian Council of the Australian Tramways and Motor Omnibus Employees' Association, to serve this letter of demand on you, arising out of the following resolution carried by Council.

'The Australian Council of this Association met on 1st March 1965 and directed me to serve a letter of demand on employers in every State in which Awards of the Commonwealth Conciliation and Arbitration Act covers members of this Association.

That an additional clause be added to all Awards mentioned below, entitled 2 man operation.

1. That all trams and buses run by you shall be manned by both a driver and conductor.

2. Notwithstanding anything contained in the Awards known as The Tramway Employees' (Melbourne) Interim Award 1958. New South Wales Govt. Omnibus Traffic Employees' Award 1963. South Australia Tramway & Omnibus Employees' Award 1963. Tasmania-Hobart Tramway and Omnibus Award 1957.

That the abovementioned employers shall not without the consent of the Australian Tramway & 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.'

This decision follows a resolution carried by the General Meeting of the members of the above Association.

The Australian Council, therefore demands of you, that unless within 24 hours of the date hereof, you comply with this demand, the Union will take appropriate steps under the Conciliation and Arbitration Act.

For and on behalf of the claimant Union, dated 1st March 1965." (at p249)

4. On 2nd March 1965 the General Secretary of the Association notified the Industrial Registrar of the existence of an industrial dispute, or a situation likely to give rise to an industrial dispute, between the Association and the four employers "with respect to the matter set out and attached hereto" - viz. a copy of the letter of 1st March 1965. (at p250)

5. At an earlier date (26th February 1965) and following an intimation by The Melbourne and Metropolitan Tramways Board to the Secretary of the Victorian Branch of the Association of projected changes from two-man to one-man omnibus operation upon two Melbourne routes, a notification as follows had been given by the Secretary of the Victorian Branch to a Commissioner: - "In pursuance of s. 28 of the Conciliation and Arbitration Act 1904- 1964, The Australian Tramway and Motor Omnibus Employees' Association, Victorian Branch, hereby notifies you of the existence of an industrial dispute (or industrial situation which is likely to give rise to an industrial dispute) between The Australian Tramway and Motor Omnibus Employees' Association and The Melbourne and Metropolitan Tramways Board with respect to the following matters: - In the alteration of the roster at North Fitzroy and Port Melbourne Depots by the alteration to the work of drivers and conductors. This will materially affect working conditions and impose hardship on the members of The Australian Tramway and Motor Omnibus Employees' Association. This matter has already caused a stoppage of work and is liable to lead to further industrial unrest." (at p250)

6. This notification had been followed by a conference on 1st March before a Conciliator where an objection was taken on behalf of The Melbourne and Metropolitan Tramways Board that any industrial dispute that there might be did not extend beyond the limits of Victoria. There can be no doubt that it was this well-founded objection that led to the sending of the letters of 1st March. (at p250)

7. Following the notification of 2nd March, a bearing was arranged fo 4th March before Commissioner J.P. Horan. At the conclusion of this hearing, at which the Association and the four employer authorities were represented, the Commissioner found as follows: - "I. That an industrial dispute within the meaning of the Conciliation and Arbitration Act 1904-1964 exists between The Australian Tramway and Motor Omnibus Employees' Association an organization of employees under the Act and 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 State of New South Wales, Victoria, South Australia and Tasmania. II. That the subject matter of the said industrial dispute is comprised in a log of claims served on behalf of the said Association on the said respondents. A copy of the said log is attached to the aforesaid notification." (at p251)

8. Thereupon the following award was made: - "1. Title. This Award may be referred to as 'The Tramway and Omnibus (One Man Operation) Award, 1965'. 2. Parties Bound. This Award shall be binding upon The Australian Tramway and Motor Omnibus Employees' Association 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 said Association. 3. One Man Operation. (at p251)

9. Notwithstanding anything contained in the Awards known as 'The New South Wales Government Omnibus Traffic Employees Award, 1963'; and 'The Tramway 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. Provided that this Award shall not affect the right of such respondents to require an employee to operate on his own an omnibus at a time or in a locality where an omnibus or tramcar was so operated before 4th March, 1965. 4. Period of Operation of Award. This Award shall come into operation on and from 4th March, 1965, and shall remain in force until 4th June, 1965." (at p251)

10. It is in respect of this award that prohibition is sought. (at p251)

11. There can be no doubt that if, on 4th March, there were an industrial dispute extending beyond the limited of one State, that dispute could only have been constituted by the rejection or non-acceptance of the demand made in the letters of 1st March. This is so notwithstanding the undoubted fact that, independently of the letters, there was in existence a local dispute between the Association and The Melbourne and Metropolitan Tramways Board - and possibly a local dispute between the Association and the Commissioner for Government Transport, New South Wales. Moreover, as the terms of the award show, it was based upon the letters. Furthermore, at the hearing, at which the General Secretary insisted upon the demands made in the letters - although he agreed to part of the dispute being stood over for the time being - nothing was added to, or subtracted from, the letters. They were at all times and without any modification "the log of claims". The power to make an award depends, therefore, upon the letters. The prosecutor did, however, rely upon an additional ground for prohibition which can be disposed of out of hand. (at p252)

12. The first contention was that the award was not an arbitral award because the Commissioner who made it relied upon the representations of those appearing before him rather than upon evidentiary material to support those representations. This is, I think, obviously wrong. An arbitrator would, no doubt, usually refuse to act merely upon the representations of parties made before him if there were a genuine dispute about the relevant facts, but it is a far cry from such a rule of fairness and prudence to an insistence that there cannot be arbitration within the meaning of s. 51 (xxxv.) of the Constitution unless the arbitrator hears and decides upon sufficient evidentiary material submitted to him by the parties. (at p252)

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)

14. First, it was objected that the Association made no real and genuine demand. This objection was, however, in the main associated with the point I have already discussed - that is, that any new dispute was "trumped up". Of course, in a sense it was, but it is too late in the day to deny the character of a genuine industrial dispute extending beyond th elimits of one State to one so contrived for the purpose of attracting the jurisdiction of the Commission. Were the demand not genuine in the sense that although, in form, it was made upon four employers in different States, in reality it was directed to the employer in Victoria only and nothing was required from other employers, then it could not have given rise to a dispute within the jurisdiction of the Commission. Lack of genuineness in this sense was indeed suggested here and reference was made - (1) to the time within which acceptance of the demand was sought (i.e. twenty-four hours from the date of the letters rather than from their receipt); (2) to the failure of the Association to press for an award against employers in South Australia and Tasmania; and (3) to the fact that upon the making of an award against the employers in Victoria and New South Wales, only the Victorian employer and the Association were sent into conference with a conciliator to deal with the problems to which the making of the award would inevitably give rise. But even when there is added to these factors the fact that the genesis of the dispute was in Victoria, there is still no justification for a conclusion that the demand made in the letters of 1st March was merely a demand upon The Melbourne and Metropolitan Tramways Board and not upon the other employers. (at p253)

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)

16. To avoid what I regard as the insuperable difficulty in the way of reading together the two provisions of the demand, it was suggested alternatively that the letters should be read as demanding either the first or the second provision stated, but not both. I have come to the firm conclusion that this course would be the only way of making the demand intelligible and sensible - but I am no less clear that the demand is not for alternative clauses. It is for a clause in each award entitled "2 man operation" and constituted by the first and second provisions. On this point, it is not without significance that, upon the hearing of the dispute, there was no suggestion that the claims were in the alternative. What the General Secretary of the Association made clear was that he was not pressing both claims for the time being and was prepared for the first to be stood over "at this stage". It is clear that the author of the demand did not treat it as making alternative claims upon the employers and, in my opinion, there is no justification whatever for reading it in that way. (at p255)

17. For the foregoing reasons, I have come to the conclusion that the demand was not sufficiently intelligible to form the basis of an industrial dispute and that this is such a case as was envisaged by the Court when in Reg. v. The Association of Professional Engineers of Australia; Ex parte Victoria [1957] HCA 95; (1957) 100 CLR 155 it was said: "No doubt demands which are not intelligible or convey nothing clearly to the mind of the person to whom they are addressed may fail in giving rise to an industrial dispute" (1957) 100 CLR, at p 162 . Indeed, an equivocal demand upon two persons might fail to give rise to one dispute. (at p255)

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)

19. There is another difficulty arising out of the nature of the demand here made to which I should refer. What the Association sought against each employer was a variation of the separate award by which that employer was bound. Whether a demand by an employees' organization upon an employer in one State for the variation of Award A by which they are both bound and against an employer in another State for a variation in the same terms of Award B - an award similar to Award A - by which both are bound, does give rise to one dispute between the employees' organization and both employers is a question which I leave open for further consideration. It seems to me that there is something to be said for the view that, if the Association's letters did give rise to any dispute, then they gave rise to four separate disputes, each of which might be settled differently according to particular circumstances. (at p256)

20. Because I consider the letters of 1st March made an unintelligible demand and because, upon any meaning which may be attributed to those letters, they demanded the making of an award presupposing the authority of the Commission to make orders otherwise than in settlement, or in the working out of a settlement, of industrial disputes extending beyond the limits of a State, I consider the order nisi for prohibition should be made absolute. (at p257)

OWEN J. The prosecutor, The Melbourne and Metropolitan Tramways Board (the Board), seeks to have made absolute an order nisi to prohibit the respondents, The Australian Tramway and Motor Omnibus Employees' Association (the association) and Mr. Horan, a Commissioner appointed under the Conciliation and Arbitration Act, 1904-1964 (Cth) from further proceeding with or upon an award made by the latter on 4th March 1965. (at p257)

2. The award, entitled "The Tramway and Omnibus (One Man Operation) Award 1965", was declared to be binding upon the association, the Board and the Commissioner for Government Transport, New South Wales. It provided that "Notwithstanding anything contained in the Awards known as 'The New South Wales Government Omnibus Traffic Employees' Award, 1963'; and 'The Tramway 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. Provided that this Award shall not effect 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". (at p257)

3. It was to come into operation on and from 4th March 1965 and to remain in force until 4th June 1965. (at p257)

4. The history of the events leading up to and culminating in the making of the Award is as follows: (at p257)

5. On 12th February 1965 the Board decided that two of the bus routes operated by it in Melbourne and staffed on week-days by a crew consisting of driver and a conductor should as from 7th March be operated and staffed by one man whose duty it would be to drive the bus and collect the fares. By letter dated 22nd February, the Association was notified of this decision and on the following day duty rosters relating to the change in staffing the buses on these routes were posted at the depots from which the services in question operated. On 24th February the members of the Association employed at those depots held a meeting at which they decided to refuse to operate the new rosters. A written notification, dated 26th February, of the existence of an industrial dispute or of an industrial situation likely to give rise to an industrial dispute in connexion with the altered rosters was thereupon given by the Association to a Conciliation Commissioner. It was expressed to be given pursuant to s. 28 of the Act. Following this notification and on 1st March the Board and the Association were summoned to a conference before a Conciliation Commissioner in Melbourne when the representative of the Board took the objection that no inter-State industrial dispute existed. The objection taken on behalf of the Board seems to have been soundly based and the conference was adjourned. During the morning of 2nd March the Board received from the General Secretary of the Association a letter posted in Brisbane and dated 1st March. On the same date or shortly thereafter, letters in similar terms were received by the Municipal Tramways Trust of South Australia, the Metropolitan Transport Trust of Tasmania and the Commissioner for Government Transport of New South Wales, each of which employs members of the Association in its public transport activities. The letters were in these terms:

"Dear Sir,

I have been directed by the Australian Council of the

Australian Tramways and Motor Omnibus Employees'

Association,

to serve this letter of demand on you, arising out of the

following resolution carried by Council.

'The Australian Council of this Association met on the

1st March 1965 and directed me to serve a letter of demand on

employers in every State in which Awards of the

Commonwealth

Conciliation and Arbitration Act covers members of

this Association.

That an additional clause be added to all Awards mentioned

below, entitled 2 man operation.

1. That all trams and buses run by you shall be manned

by both a driver and conductor.

2. Notwithstanding anything contained in the Awards

known as The Tramway Employees'(Melbourne) Interim Award

1958. New South Wales Govt. Omnibus Traffic Employees'

Award 1963. South Australia Tramway & Omnibus Employees'

Award 1963. Tasmania-Hobart Tramway and Omnibus Award

That the abovementioned employers shall not without

the consent of the Australian Tramway & 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.'

This decision follows a resolution carried by the General

Meeting of the members of the above Association.

The Australian Council, therefore demands of you, that

unless within 24 hours of the date hereof, you comply with

this demand, the Union will take appropriate steps under the

Conciliation and Arbitration Act.

For and on behalf of the claimant Union, dated 1st March

Yours sincerely,

(Sgd.) JAMES T. COULTHART,

General Secretary." (at

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)

"The Commissioner: Does that help you to understand the document, Mr. Lindsay?

Mr. Lindsay: It might help me to understand the intention of the document, but whether it alters the fact that the document does not say that, I would not know.

The Commissioner: Does it help you, Mr. Larkin? Mr. Larkin: I understand what Mr. Coulthart has said. The Commissioner: What about Mr. Reid? Mr. Reid: I assume then that so far as what I might term item 1 in the claim is concerned, Mr. Coulthart is not pressing for that aspect at this stage. I am correct, Mr. Commissioner?

The Commissioner: I do not know. From what Mr. Coulthart has said, if the dispute is found, they will not be pressing for an award; that is what I understood him to mean.

Mr. Coulthart: At this stage.

The Commissioner: At this stage. His claim still stands as far as I can

gather, that is that buses and trams should be manned by two men.

Mr. Reid: It still raises the point that we could be faced with the position of the demand in this contradictory manner in which the letter has been drawn up.

The Commissioner: Mr. Coulthart, what about Mr. Reid's other query, the documents you were requested to bring here?

Mr. Coulthart: You will appreciate that the council started on Monday, the minutes are not printed. I was not aware of the subpoena until I arrived here to-day. I am only too pleased to give any evidence or assist this Commission in any way by stating what has been done. A copy of the resolution that was carried.

The Commissioner: I take it you are asking the Commission to find that an industrial dispute exists?

Mr. Coulthart: Yes, in the first place. The Commissioner: Does anyone wish to argue that it does not?" Mr. Miller answered that on the issue whether a dispute existed it would be relevant to examine the records of the Association in order to ascertain whether there had been a general meeting of its members, to which the Commissioner replied: "I do not think it matters. The Australian Council carried a resolution and it was carried at Brisbane; it does not matter whether it was a meeting of general members; the Australian Council surely is the top authority of the Union and it has carried a resolution instructing the General Secretary to make a demand upon the respondents for these things." (at p262)

"Mr. Miller: There have been decisions which have dealt with disputes and the Council has been held to be the body which should do these things. I am well aware of that but my interest is how realistic is this claim on an inter-State basis.

The Commissioner: From my knowledge I say it is realistic because I know a dispute exists in Melbourne and in New South Wales. A lot of these things in New South Wales have been dealt with in this jurisdiction. I know there have been disputes in South Australia and there is no doubt in my mind, as Commissioner in charge of the industry, that this matter of one-man buses and their operation has been a live issue, a live issue in a number of States for a number of years. Its whole history surely shows that.

Mr. Miller: I will leave that aspect." He proceeded then to submit that the claim of the Association "relates not to an employer-employee relationship, but to the regulation of a business undertaking of employers" and that the dispute - if there was one - was not an "industrial dispute". Later, the Commissioner said: "I have been asked to determine whether or not an inter-State dispute within the meaning of the Act exists and I think it does. The Commissioner finds that a dispute exists between the Association and the respondents named and a record of the finding will be made and filed accordingly." Mr. Coulthart then proceeded to state reasons why an award on the lines of cl. 2 of the letter of demand should be made and the representatives of the transport authorities put forward reasons to the contrary. At the end of the discussion the Commissioner made an award in the terms set out earlier and declared it to be binding on the Melbourne and Sydney authorities, the claim against the other authorities being stood over. (at p262)

9. I have referred in some detail to the proceedings before the Commissioner because what took place there seems to me to have a material bearing on one of the questions which we have to decide, namely whether at the relevant time there existed a dispute extending beyond the limits of any one State. The submission put to us on behalf of the prosecutor was that no such dispute was shown to exist. It did not and could not arise out of any failure to comply with the letters of demand because the cll. numbered 1 and 2 in the letter of 1st March were inconsistent, the one with the other. An employer to whom it was addressed could not be expected to understand with any reasonably degree of certainty what it was that the Association was demanding. For that reason a failure to comply with the letter of demand could not provide any basis for a finding of the existence of a dispute. Further, it was pointed out that the letters called upon the addressees to comply with or reject the demands made within twenty-four hours from the date of the letter and, having regard to the course of post, compliance within the time stated was impossible in the case of some of the addressees, while in other cases the time allowed was unreasonably short. For either or both of these reasons, it was submitted, it would be wrong to infer that a dispute had been brought into existence by the service of the letters and non-acceptance of the demands within the period set by them. (at p263)

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)

11. As to the remaining submissions made to us on behalf of the prosecutor, I am of opinion that they should be rejected for the reasons given by the Chief Justice with which I agree. (at p264)

12. I would discharge the order nisi with costs. (at p264)

Order nisi for writ of prohibition made absolute. Costs of the Prosecutor to be paid by the Respondent Association.