R v Commonwealth Court of Conciliation and Arbitration [1909] HCA 20

R v Commonwealth Court of Conciliation and Arbitration [1909] HCA 20 - HCA 1909 case summary — Zoe

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tion should not allow objection to be now raised to jurisdiction, and reliance was placed on the case of Broad y. Perkins (1). 'That case, which of course is of the very highest authority, established that, since the writ of prohibition, although a writ of right, is not of course, if a party lies by and does not bring to the 3 notice of the Court matters which would show that it had not Covema- jurisdiction, then the superintending Court, as I may call it, will pane eaihet not in the exercise of its discretion grant prohibition, but will Ex raxre leave the objection to be taken in some other way. I have some pure doubt whether that doctrine should be applied to a case of this ©" 1". kind, because, under the Statute by which this Court is established, Gritfn the award, although made between the parties, really affects the rights of a great number of persons who are not present parties to the proceedings. It may be the foundation of many other rights. It may be perhaps the foundation of a common rule. And yet if the Court had no jurisdiction to make the award all these sub- s€quent proceedings would be void, and the objection might be taken in any of the cases, or it might not, and the burden of objection to the jurisdiction might be cast upon persons very ill able to sustain it. Under these circumstances, I say, it is doubtful whether the rule laid down in Broad v. Perkins (1) should be held to be applicable to objections to the jurisdiction of the Commonwealth Court of Arbitration if it clearly appeared that it had no jurisdiction. I only say it is open to considerable doubt. But in any circumstances that rule ought not to be applied where the Court asserts the right to go beyond the matters as to which the parties were willing to submit themselves to its jurisdiction, beyond those that were in the minds of the parties when they made the submission. So that in any view I think the objection may now be taken. I will now proceed to consider the objections to the validity of the whole award. The first objection taken formally is that there was no dispute in an industry extending beyond the limits of any one State. I only remark upon that that those are not the words of the Constitution, and that a priori I do not see why there may not be one dispute embracing or extending over several industries, just as much as there may be several disputes within the limits

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sides as a matter within the cognizance of the Commonwealth Court of Conciliation and Arbitration, which could only be, if in fact there was a dispute extending beyond the limits of one State. And, as I have also said, on 29th December proceedings were instituted, and for some time after those proceedings were instituted both parties acted on the assumption of the existence decmeratdins of a dispute of which the Court could have cognizance, although that would not be sufficient to estop the company from afterwards pipe EY taking the objection that the Court had no jurisdiction. Yet it ©? 4" is material evidence on the two questions of fact which I have Grifimc.s. already mentioned, whether there was concerted action before the institution of proceedings, and whether the company were aware there was such concerted action. I think that, although there is no express evidence of a formal demand having been made by one person on behalf of both, or by one organisation on behalf of both, yet the proper inference to be drawn, the almost necessary inference, is that there was a "dispute extending beyond the limits of any one State." I think, therefore, that that objection fails. The next objection to the jurisdiction of the Court is that before the hearing the relationship of employer and employé between the employés and the company had come to an end, and that therefore the dispute could no longer be called an industrial dispute. Colliery Employés Federation of the Northern District, W.S.W. v. Brown (1) in this Court was referred to, in which the Court held that when such a state of things existed the Court had no jurisdiction to go on and determine the matter. The decision in that case depended upon the facts, as must every decision on a similar point. The facts of the present case are these : - After 31st December none of the men worked. They had intimated that they would not. The question, then, is whether the relationship of employer and employés had ceased, using those words in the sense in which they are used in the Act, and having regard to the provisions of the Constitution. The subject matter of the legislation is industrial disputes. Ordinarily in industries the men are not bound for any long period of

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_. « (b) All industrial disputes which are submitted to the Court ajnrmatios. by an organization, by plaint, in the prescribed manner" and sec. Boe 38 which defines the powers of the Court, and limits it to industrial proprrerary disputes of which the Court has cognizance. This then is a apa condition of jurisdiction; the dispute must not only exist but Grifitn oJ. must be submitted to the Court. It is said that that, must be done by plaint in the prescribed manner. I attach little weight to those words, having regard to sec. 25, which provides that the Court is to act in the determination of industrial dis- putes according to the substantial merits of the case, without regard to technicalities and legal forms; and a provision of sec. 38, par. (q.), gives power to "amend or waive any error defect or irregularity whether in substance or in form." The substance of the matter is, in my opinion, that the organization must deliber- ately submit for the determination of the Court an existing dispute which it desires to have settled, and the formal proceedings must identify the dispute - if there are two disputes and only one submitted - then the jurisdiction of the Court is limited to that one. But another may be afterwards brought in, whether by amendment or by supplemental plaint. But it must be submitted. I take that as merely an instance of the general rule of fair play that a man should be informed of the charge he has to meet before he is condemned. I mean that it must be submitted in some formal manner, deliberately submitted to the Court. I now proceed to the facts relating to these two subjects. The first is the contract system, which is simpler than the other, and I will deal with it first. The learned President by clause 6 of his award directed that no contract shall be set by the company except as to work for which contracts were usually set by the company since 11th December 1906. Now the original plaint asked that the terms of the Broken Hill agreement with the

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laid down in The Mayor of London v. Cow (1), in the judgment of Mr. Justice Willes, is well established that a writ of prohibi- tion though of right is not of course, and that the Court may therefore consider the conduct of the parties, and may be justi- fied in refusing to give the relief in a case where a party has by his own action forfeited his right to claim it. But in considering the exercise of jurisdiction by the tribunal constituted under the Federal Arbitration Act, it appears to me that a view may have to be dealt with which cannot arise in the ordinary litigation between subject and subject. This award affects directly over 4,000 men; it may affect indirectly the whole business of mining at Broken Hill if it should be made a common rule under the provisions of the Act. The decision of this Court respecting the rights of the parties now before it will have no binding effect in any proceedings to enforce the award against other individuals or companies. Having regard to the object of the Act, to bring about industrial peace, it seems to me that the Court would not be fully discharging its duty to the large section of the public directly and indirectly interested if it now declined to express its opinion on these objections on the ground that the applicants had acted in such a way as to acquiesce in the jurisdiction. I agree with my learned brother the Chief Justice that the first ground must be taken as being merely an elaboration of one element of the second, namely, that the dispute did not extend beyond the limits of any one State. The third ground, which I shall deal with first in order to dispose of it at once, is sub- stantially that at the time when the proceedings were entered upon the relation of employer and employé between the Broken Hill Proprietary Company and the claimant union had ceased to exist. It is purely a question of fact whether the relationship of employer and employé had or had not ceased. No doubt the men had stopped work, but whether it was intended that the stopping of work should operate as a cessation of the rela- tions of employer and employed is a matter to be determined by inference from the conduct of the parties. Without repeating what the learned Chief Justice has said on this part of the case I have no doubt at all that the conduct of both parties all through

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on in two States, is one industry. From the operation of getting ore out of the mine until the ore is turned into an ingot at Port Pirie, it is one business, carried on by the one company, managed by the same Manager, in every respect treated as one undertaking. In the second place, it is plain that the wages at Port Pirie and the wages at Broken Hill have followed pro- portionately the same rise and fall. An important illustration of this oceurred at the beginning of the agreement of 1906. The miners at Broken Hill had been up to that time working under a New South Wales industrial award. On the expiration of the award. there was a conference, at which the agreement of 1906, with an increase in wages, was made. Thereupon the increase given at Broken Hill was extended to Port Pirie; all these employés being thus treated as employés of the same firm, carrying out different processes of the same business. When the Broken Hill Company determined to bring to an end the increase in wages thus granted they posted a notice to that effect at both places, intimating to representatives of the workmen that the inerease should cease after 31st December in the year 1908, and that notice was given to the secretary of the one union. There was no separate notice given to the men at Port Pirie through any special representative of theirs; the only notice given to a representative of the Port Pirie men was that given to the secre- tary of the general organization which then represented the men working in the company's employment in both places. There is no doubt that the men in both places accepted the position that the alteration in their conditions was intended to operate proportionately in both places. It is true that conferences between the men and the company were held separately at Broken Hill and Port Pirie. But these were conferences in respect of different branches of the same business, and they were naturally held separately, although the different branches of the claims were all included in the same demand. It was suggested during the argument that it was necessary that the demands should be presented separately by representatives of each branch before there could be that concerted action which the Act requires. In my opinion that was not necessary. The Port Pirie men were members of the general Union in October

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of the first principles of judicial determination, that no person should be called upon to answer a claim unless it is put in such a form as will give him notice of what he has to answer. See. 19, which makes this condition of jurisdiction necessary, provides three ways in which the Court may have cognizance of a dispute. It may be brought before the Court by the Registrar who certifies it as proper to be dealt with in the public interest. It may be by a State industrial authority, or by the Governor in Council of a State in which there is no industrial authority, or it may be by the parties. The condition required in all these cases is, to my mind, substantially the same, that is to say, the general body of a dispute, if I may so describe it, must be brought before the Court in terms which, however general, however inartificial, are sufficiently definite to enable the Court to know what it is called upon to decide. The parties themselves can give the Court cog- nizance of an industrial dispute in one way only, that is, by submitting it by plaint in the prescribed manner. The pre- scribed manner may be altered by the Court whenever it chooses to make rules on the subject. But what the rules for the time being prescribe must be followed or the jurisdiction cannot attach. It was never intended, in my opinion, that the plaint should do anything more than generally describe the subject matter of the dispute of which the complainants wish to give the Court cognizance. It has been stated in this case by the learned President himself that he may make an award in regard to matters not claimed in the plaint if he awards them in settle- ment of claims which are duly made. In one sense that is true. Parties are not bound to claim any particular mode of relief. The dispute being before the Court the President may adopt any method he thinks fit of settling it, and so long as the award does nothing more than settle that dispute, although it may do so by means of a remedy not claimed, it is within his juris- diction. But the Court cannot do indirectly what it is pro- hibited from doing directly, and it cannot, under the guise of applying a remedy to a dispute within its cognizance, make an order which will have the effect of determining a dispute which the parties have never brought before it. In other words, the learned President cannot by adopting a particular form of relief

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Judgment (250 paragraphs)