R v Commonwealth Conciliation & Arbitration Commission; Ex parte Transport Workers' Union of Australia [1969] HCA 49;

R v Commonwealth Conciliation & Arbitration Commission; Ex parte Transport Workers' Union of Australia [1969] HCA 49; - HCA 1969 case summary — Zoe

[5]

BARWICK C.J. The prosecutor, The Transport Workers' Union of Australia, an and Arbitration Act 1904-1968 (Cth) (the Act) seeks prohibition against the Commonwealth Conciliation and Arbitration Commission (the Commission) set up under the Act, a Deputy President of the Commission, the respondent employers, namely, Associated Steamships Pty. Limited, Brisbane Wharves and Wool Dumping Pty. Limited, Liner Services Pty. Limited, McLlwraith's Transport Pty. Limited, Seatainer Terminals Limited and Trans-Ocean Containers Pty. Limited, and the respondent unions, namely, The Waterside Workers' Federation of Australia, The Federated Storemen and Packers' Union of Australia, The Federated Engine Drivers and Firemen's Association of Australasia and The Federated Clerks' Union of Australia, which are also organizations of employees registered under the Act, to prevent further proceedings upon an award of the Commission, known as "The Container Depots Demarcation Award, 1969" (the award) made on 3rd March 1969 and varied on 10th March 1969. The award was made in purported settlement of a dispute said to be created by the service by the respondent employers upon the prosecutor and the respondent unions of a log of claims and its non-acceptance by those on whom it was served. The occasion for the service of the log was the expectation by the respondent employers of commencing what in Australia were then new procedures in the handling of goods to the wharf and into and out of ships and from the wharf to distribution points in the course of export and import trade. Terminals are to be set up on wharves where containers holding goods which have been packed therein will be assembled for shipment on, or for removal after discharge from, ships, as the case may be. Suitable gear will be installed at the terminal to handle the containers inboard or outboard, as the case may be, of ships suitably designed for the purpose of carrying containerized cargo, called container ships. The containers are to be moved out of or into depots where goods will have been packed into them or where goods will be unpacked from them. These depots will not be at or necessarily adjacent to wharves, the goods being brought to them or moved out of them in general by land transport. (at p534)

[7]

3. Before going further I ought to express my view upon the meaning of the expression as used in the log "conflicting claims by different unions and their members for the right to perform the work". This, as I understand it, is an industrially understood phrase to express the footing on which a demarcation dispute usually emerges. Employees assert their "right" to perform particular operations - the claim being grounded upon the nature of the work to be performed or upon some historical or traditional circumstance. This "right" of the employee is as a rule asserted by the union of which he and his fellow employees in a like case are members. Inevitably, therefore, unions are in their representative capacity involved in demarcation disputes, that is to say, in disputes between the employer and the employee as to which of his employees he shall assign the performance of particular work. Of course, such a dispute may, and frequently does, involve other employees who claim for themselves and their fellows the right to perform the same work. Thus, two or more unions, each claiming the right of its members to do the work in question, are likely to be involved in the demarcation dispute and appear as antagonists in it. An employer may be indifferent to the result of the dispute, being himself willing that any group of employees should do the work ; or, of course, he may have distinct considerations relating to his total industrial operation which require him to assert his own preference in the matter. But neither the inter-union aspects of the demarcation dispute nor the employer's indifference to its result can be allowed to deny the fact that the demarcation dispute is fundamentally a dispute between employer and employee and properly regarded for the purposes of the Constitution and the Act as involving the relationship of employer and employee. When such a dispute is settled, it is the employer who is bound to assign the work as between his employees in the agreed or awarded direction. (at p535)

[30]

17. On the other hand, it must be conceded, as I have already indicated, that the assignment by an employer of specific work to an employee to be done in his employment is a matter which pertains to the relations of employer and employee and directly relates to work to be done. It must also be conceded that a dispute between employer and employee, or between an employer and a registered organization of employees, or between a registered organization of employers and a registered organization of employees as to which employee or which class of employee shall be assigned particular work in an employment can be an industrial dispute within the meaning and operation of the Act. Such a dispute may exist between an employer or employers or a registered organization of employers on the one hand and more than one registered organization of employees on the other, for example, where the work to be assigned is claimed by more than one of such organizations to be proper to be performed by employees following some particular trade or calling. More than one of such organizations may have members of the one trade or calling; or some one or more may not have such members but be claiming that the work in question is work to be performed by employees following another trade or calling of which class of employee they have members. In my opinion, an award which settles any such dispute by a demarcation of the functions of particular employees or of a class or classes of employees in an employment would clearly be valid whilst it effects its demarcation by reference to a class of employees, or by reference to a trade or calling, or by sex or by age or by some other description. The identification of the employee to do the specified work by any of these descriptions would not be a departure from the demarcation of function which was the substantive subject matter, and constituted the substantial operation, of any such award. That conclusion, in my opinion, would not appear to be disputed by the prosecutor. Nor would the prosecutor seem to dispute, and in my opinion it could not successfully dispute, that the employer or registered organization of employers could initiate such a dispute by a suitable log of claims served upon a registered organization or upon several organizations of employees, with respect to the allocation of work amongst its employees or the employees of its members. Whether an employer or a registered organization of employers could thus create a dispute with respect to such of its employees as were not members of any registered organization need not presently be considered for, in my opinion, the log of claims in this matter properly understood seeks only a demarcation of functions as between such of the employees of the respondents as are members of one or more of the respondent organizations of employees. (at p540)

[36]

23. The Act has recognized this practical consequence of the creation of registered organizations with capacity to represent employees following various trades or callings not limited to what I have called exclusive membership eligibility. One of the paragraphs of the definition of industrial matters expressly covers the demarcation of function of employees as between members of different organizations. The relevant paragraph, (p), is expressed somewhat compendiously. It needs, in my opinion, to be expanded in construction. Bearing in mind the opening paragraph of the definition of industrial matters, the paragraph, in my opinion, contemplates that a question as to the demarcation of function of employees may arise simply between the employer and the employee whose functions are to be marked out, that it may arise between the employer and more than one employee or class of employees, and that it may arise between the employer and his employees who are members of different organizations and in respect of such membership. I find no need to call in aid in this connexion any part of par. (a) of the definition which presents its own difficulties. In my opinion, par. (p), as I would interpret it, would in itself be sufficient warrant for holding that a demarcation of function of employees who are members of some registered organization of employees according at least in part to their membership of such an organization may be an industrial matter within the meaning and operation of the Act. Indeed, in my opinion, without the benefit of the particularization of the opening words of the definition of "industrial matters" in s. 4 constituted by the several paragraphs and subject to the effect of s. 47 with which I shall later deal, the identification of which of the employees who happen to be members of some organization of employees should be allotted particular work in the employment of a disputant employer by reference to his or their calling and his or their membership of an organization of employees seems to me to be an industrial matter within that section. The demarcation pertains to the relationship of employer and employee: it does so none the less because membership of an industrial union is included in the description of the employee or employees who are to be selected to do particular work for the employer. Also employees who are members of a particular registered organization of employees, in my opinion, form a class of employees within the meaning and scope of par. (p). Thus for these several reasons, I conclude again, subject to consideration of s. 47, that an industrial dispute can arise between an employer or an employers' organization and a number of employee organizations as to the allocation by the employer of work to be done in his employment by his employees who are members of one or more of those employee organizations according to the industrial occupation of the employee and his membership of a named organization of employees. The subject matter of the log was therefore, in my opinion, capable of being an industrial matter within the meaning of the Act. Was the demand to seek such a demarcation capable of giving rise to an industrial dispute? (at p543)

[38]

25. However, the log of claims included cl. 5, which I have already quoted in full. Standing alone, in my opinion, that clause does not represent a demand in relation to an industrial matter within the meaning of the Act. But it does not stand alone. It is ancillary to the demand for an agreement as to the demarcation of function of certain employees in the employers' employment. It is in form a clause which presupposes the demarcation to have been made at least in part according to membership of an organization of employees and that there is overlapping in the membership eligibility of two or more of such organizations. The clause, in my opinion, is in its nature, protective of such a demarcation. A registered organization for the purposes of the Act may agree not to make or to press claims on behalf of its members, though as was rightly pointed out by counsel for the prosecutor, it may not deny membership to a person falling within its membership eligibility clause. The presence of s. 144 in the Act as it presently stands was much emphasized by counsel for the prosecutor, who sought to build upon it an argument that because a worker now had a right of admission to membership of an appropriate registered organization of employees, such a registered organization could not abandon or be required to abandon its "right", as it was called, of "representation" of potential as well as of actual members. But I have been unable to appreciate the relevance of s. 144 to the resolution of the present problem. Whilst a person may be able to insist on membership, I do not understand his right to membership of an organization to involve a denial of the power of the organization to exercise, or not to exercise, as the case may be, the powers both express and implied, which it derives from its constitution and the fact of its incorporation under and for the purposes of the Act. It seems to me that the ability of the organization to agree to vacate some field which according to its constitution it might occupy remains unimpaired. Nor do I find it the least incongruous that if a demarcation of function according to membership of an organization is agreed to by two or more organizations with an employer, that each organization bound by the agreement should also agree to respect the demarcation and pro tanto to vacate the field of industrial activity in which it might otherwise prosecute the interests of its members. Consequently, I do not regard the presence in the log of the clause in the terms of cl. 5 of the award as violating the conclusion otherwise drawn as to the industrial nature of the demands of the log. Nor, in my opinion, does the presence of a clause in the award (cl. 5) in the terms of the log make the award allocating the functions of employees of the respondent employers who are members of a registered organization an inappropriate or inadmissible settlement of the industrial dispute. (at p544)

[53]

40. With that background I turn to the terms of the bans clause in question. The validity of a bans clause as a means of protecting an award is, in general, established by the decisions of this Court: see R. v. Metal Trades Employers' Association; Ex parte Amalgamated Engineering Union, Australian Section [1951] HCA 3; (1951) 82 CLR 208 ; Reg. v. Spicer; Ex parte Seamen's Union of Australia [1957] HCA 16; (1957) 96 CLR 341 : see also Reg. v. Galvin; Ex parte Amalgamated Engineering Union, Australian Section [1952] HCA 29; (1952) 86 CLR 34 . But the clauses in these cases were limited to bans etc. upon the performance of work which could be performed by the members of the organization bound by the clause. Here the clause forbids the prosecutor from being involved directly or indirectly in any ban etc. upon the performance of any work covered by the demarcation, i.e., whether or not the work is capable of being performed conformably to the award by the members of the prosecutor. But as I have indicated, the maintenance of the allocation of work requires the abstention by organizations whose members are not enabled to do particular work from interfering in the performance of that work by others to whom the performance of the work is to be allocated by the demarcation. Thus, in my opinion, the bans clause does not travel beyond what may be considered necessary to protect the settlement effected by the award when it requires the prosecutor to abstain from being concerned in any ban etc. on work to be performed by employees who are members of another organization. If in its nature a bans clause is no more than protection of the settlement of the dispute which has been effected, the extent to which the arbitral tribunal goes in pursuing that protection is a matter for that tribunal up to the point at which the provisions of the clause cease to be no more than protective. That point is exceeded if the particular provisions are such that they cannot reasonably be thought to be so protective of the settlement. (at p548)

[54]

41. The final provisions of the bans clause are attacked as transcending the limits to which the Commission can go in protecting a settlement, even such a settlement as is involved in the award. The provisions are twofold: first, the prosecutor is required as a separate obligation to desist from being a party to or concerned in a ban etc. on the next day after it has become such a party: secondly, the prosecutor is required when or so long as it is party to a ban etc. to take all steps within its power to bring such ban to an end. It is said that being a party to or concerned in a ban etc. is not, according to the view accepted in the decisions of the Industrial Court, a continuing breach of the award which attracts more than a single pecuniary penalty. It is then said that the Commission has no authority to convert a breach of the principal provisions of the bans clause into a continuing offence attracting daily penalties by such a clause as the first of the above provisions: and that the real effect of this bans clause is to do no more or no less than that. But I can discover no intrinsic reason why a bans clause should not impose more than one obligation upon the organization bound by it. To impose a second obligation a breach of which may attract another penalty is not, in my opinion, to increase or alter the penalty imposed upon breach of an earlier obligation imposed by the same bans clause. Thus the imposition of more than one obligation by the clause does not of itself, in my opinion, invalidate it. It may well be thought an inadequate protection of the settlement merely to forbid the organization to be a party to or concerned in any ban with no direct provision of the award by means of which that ban may be brought to a speedy end. In my opinion, to require an organization which has become a party to or concerned in a ban to desist from a continuation of such a ban etc. is reasonably capable of being regarded as a necessary or a desirable means of protecting the substance of the award. Further, I do not think that the imposition of positive obligations on the organization as a means of ensuring such protection to be beyond the power of the Commission. (at p549)

[59]

2. The employers' log in the present case recited that the five unions to which it was addressed were making conflicting claims for the right of their respective members to perform various types of work in connexion with the handling of cargoes shipped in container form. The demand primarily made by the log was that the unions should agree jointly and severally that in the performance of work by employees of the employers a particular "demarcation", as it was called, should be observed. The "demarcation" consisted in an allocation of work of various descriptions amongst the unions and their respective members. The plain meaning of the demand was that each union should agree with each of the others, as well as with the employers, that for work falling within any one of the descriptions the employers should engage members of the union to which work of that description was allotted in the log to the exclusion of the respective members of the other unions. The demand did not extend to the exclusion of non-unionists generally, as in R. v. Wallis (2); but in principle that case appears to me to be in point, for the demand in the present case pertained, not to the relations of employers and employees, but to the relations of employees being members of any one of the unions to each of the other unions. It was first a demand that if a particular employee, being a member of union X but not of union Y, should wish to be employed on work of a kind allotted to the members of union Y, he should be excluded because of his non-membership of union Y; and it was secondly a demand that if another employee, being a member of union Y, should be employed on that work, union X and its members should refrain from objecting to his being so employed. The general words of the definition of "industrial matter" were therefore not satisfied, and the judgments in R. v. Wallis [1949] HCA 30; (1949) 78 CLR 529 show further that none of the lettered paragraphs of the definition applied. In the argument great reliance was placed upon par. (p) which covers any question as to the demarcation of functions of employees or classes of employees; but in my opinion, for the reasons to be stated by my brother Owen, the word "demarcation" was misused in the log if it was intended to bring the matter within par. (p), and the question which was the subject of the demand was not within that paragraph. (at p551)

[73]

5. It appears to me that if a matter is an industrial matter because it falls within one of the lettered paragraphs in s. 4 (1), it can only be in a clear case that some other provision of the Act should be regarded as forbidding the settlement of a dispute as to that matter in accordance with the provisions of s. 23 of the Act. Of course, if the dispute is one as to preference the provisions of s. 47 apply, notwithstanding a preference based upon membership of an organization is specifically referred to in s. 4 (1) (j), and if the disputes here are as to preference or a matter ejusdem generis s. 47 can operate as a limitation upon the power to settle them. This follows, I think, from R. v. Wallis [1949] HCA 30; (1949) 78 CLR 529 . See particularly Dixon J. (1949) 78 CLR, at p 553 . I find no difficulty, however, in saying that the disputes here are not disputes about preference. I have found it more difficult, however, to determine whether the demarcation of function of members of two unions should be regarded as ejusdem generis with the preference dealt with by par. (j) and s. 47, but I have reached the conclusion that it should not. A dispute about compulsory unionism has been regarded as ejusdem generis with a dispute as to the preference to which s. 47 relates, but to demark the functions of employees is something separate and distinct from giving preference to an organization or member of an organization even if the demarcation proceeds by reference to membership of organizations. I regard par. (j) and (p) as dealing with different matters. Furthermore, I regard it as of importance that in the two cases already referred to, the Court found it necessary to negative that the matters in dispute were within any of the lettered paragraphs. This, no doubt, was because of the difficulty of confining a particular paragraph and the statutory obligation to settle a dispute about a matter covered thereby merely by implication from the then s. 56. If, for instance, the word "non-employment" in par. (j) had been understood to cover a claim that an employer should be debarred from employing particular employees there would have been no reason to deny to the Commission the power to settle such a dispute claimed by virtue of the special provision relating simply to preference. The problem which the Court faces here is different from that faced in the earlier cases and these decisions do not compel the conclusion that s. 47 forbids, by implication, the making of the award now in question. (at p555)

[80]

2. As workers in industry are now organized, disputes as to demarcation of functions in relation to a particular task do not, as I understand the matter, depend simply upon the craft in which a particular man is a journeyman. They may arise from claims of rival organizations that their members shall be employed upon particular tasks in particular places. These dissensions can obviously directly affect employers; for they must know with what union or unions they are to deal as representing the workers they employ. Demarcation questions in that sense are thus, I think, "matters pertaining to the relations of employers and employees" within the meaning of that expression in the statutory definition of "industrial matters". I realize that this reading of the statutory definition of industrial matter cannot be readily accommodated with the provisions of s. 47 in view of what the Court said in R. v. Wallis; Ex parte H. V. McKay Massey Harris Pty. Ltd. [1949] HCA 30; (1949) 78 CLR 529 . Nevertheless I am not convinced that s. 47 precluded the Commission making the award now in question. The award does not give members of a union a monopoly of employment in an industry to the exclusion of non-unionists: rather, it distributes different phases and parts of the work in an industry among members of different unions. However, even if I be wrong in thinking that the question was within the jurisdiction of the Commission because it was within the initial words of the statutory description an "industrial matter", it was I think an industrial matter because within the particular description in par. (p) of the definition. It was a question "as to the demarcation of functions of employees or classes of employees, whether as between employers and employees, or between members of different organizations". As I read the Act, disputes about such demarcations are industrial disputes. And, assuming that the necessary inter-State element be present, a demarcation disagreement between unions, in which employers are involved, can I think amount to an industrial dispute, actual or threatened, within the constitutional description. Indeed in conditions in industry prevailing today, and having regard to the obvious importance with which the parties before us regard the present question, I think I would be shutting my eyes to reality to hold otherwise. I appreciate the force of dicta in earlier judgments of this Court which were relied upon. But these earlier judgments do not, I think, compel me to a conclusion which I think would not in this case accord with the intention of Parliament. The argument of counsel for the prosecutor certainly did not persuade me that there was no industrial dispute here. Rather the reverse: its comprehensiveness, resolution and insistence convinced me that there was here a real dispute as to demarcation of functions between classes of employees, being members of different organizations, and as between the organizations and an employer. (at p557)

[94]

9. In considering this question one should start by emphasizing that what the paragraph is concerned with is the "demarcation of functions of employees or classes of employees". This is a comprehensive phrase and its language suggests that it is concerned with questions as to the functions of employees as such, that is to say, having regard to their particular callings or occupations. But it is upon the word "classes" in the paragraph that the respondents rely. This, they say, is a word of extremely wide import and there is no reason why it should not be understood to include a division into classes according, not to the common attributes of particular callings or occupations, but according to union membership. It may be conceded that the word "classes" is capable of the widest significance and, of course, to find what is meant by it in any particular case one must look at the context in which it is used (cf. Sovereign Life Assurance Co. v. Dodd (1892) 2 QB 573 and Ottawa Separate Schools Trustees v. Mackell (1917) AC 62 ). However an examination of par. (p) makes it clear, in my opinion, that the respondents' contention should be rejected. It is, of course, only as an employee and not as the member of a union, that an employee has functions in relation to his employment. These functions consist of the duties which he is employed to perform, or, as it may be said, appropriate to the calling or occupation in which he is engaged and it is only in relation to such functions that a "demarcation issue" of the character contemplated by the paragraph can arise. The reference to "classes" in the paragraph does no more than recognize, naturally enough, that demarcation problems may arise not only in relation to particular employees but also in relation to classes of employees and such "classes" are, I think, determinable only by reference to the common attributes of particular callings or occupations; it would, in my view, be foreign to the purpose of the paragraph to effect a division of employees into classes solely by reference to their membership of different unions and despite the fact that such employees may be engaged in a common calling or occupation. Further I am at a loss to understand how an award which specifies that at prescribed work places the work of a particular calling which is within the "coverage" of two or more unions shall be performed by the members of one union to the exclusion of the members of the other, or others, can be characterized as a "demarcation of functions of employees or classes of employees". I should add that I find some support for the view which I entertain on this point in s. 47 of the Act - a provision to which I shall refer presently. (at p562)

At a glance

Court

Decision date

Source

Judgment (100 paragraphs)

R v Commonwealth Conciliation & Arbitration Commission; Ex parte Transport Workers' Union of Australia [1969] HCA 49; (1969) 119 CLR 529 (13 October 1969)

Parties

Legislation Cited (3)

Cases Cited (8)