R v Commonwealth Court of Conciliation and Arbitration [1914] HCA 32

R v Commonwealth Court of Conciliation and Arbitration [1914] HCA 32 - HCA 1914 case summary — Zoe

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beyond one State on three grounds : - (1) There could not be inter-State dispute because the building industry is of such a nature - and the work is so local in its character that a dispute in the industry could not extend beyond the limits of one State. (2) There - is no inter-State competition in the building industry, and there - could not therefore be any inter-State dispute between employers and employees within the meaning of sec. 51 (xxxv.) of the Con- stitution. (3) All disputes in the building industry could (because of the nature of the work in connection with the industry) be effectively settled by the State ; and the dispute could not become - an inter-State dispute because under the powers reserved to the States by the Constitution the States retained the right to settle - all disputes that could effectively be settled by the States. : Before proceeding to deal with the questions mentioned I think it only right as Deputy President of the Court to say that while I - do not arrive at the same conclusions as my brothers the Chief Justice and Barton J., it is chiefly because I differ from them as s to the facts proved ii this case. The law as laid down by the learned Chief Justice in his judgment for the most part I agree with. = For instance, I agree with him that sec. 51, pl. xxxv., of the Constitution is not to be read as "' with respect to the settlement - of industrial claims jointly preferred by . . . . employees - engaged in industrial avocations in more than one State, and the regulation of industrial matters included in or incidental to such - claims"; but I cannot agree with the learned Chief Justice when he adds that "in the present case this is, in effect, the construction - which the Court is asked to put upon the words of the Constitution, and the claim put forward by the claimants is . . . . not more than such a joint claim." T also agree with the learned Chief Justice in holding that "the - mere fact of the presentation of" a "log with the accompanying demand and the failure of the employers to accede to it" was not sufficient in itself to constitute an industrial dispute extending &. The respondents, however, contended that in this case the presenta- tion of the log with the demand and the failure of the employers | to comply with it, coupled with (1) the dissatisfaction proved in

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or settlement of disputes by conciliation and arbitration (Aus Boot Trade Employees' Federation v. Whybrow & Co. (1)); or assume, because I dissent from the judgment of the Chief Justice in this case, that I hold that the mere fact of the presentation of a log of prices and conditions and the failure to accede to it neces- sarily established the existence of an industrial dispute extending beyond the limits of one State, without some proof of the genuine- ness of the demand, and the intention to persist in it if the demand : is not conceded or settled. Dealing with the questions raised in this case I fail to see anything to prevent a dispute in the building industry extending beyond the limits of one State. The building industry is local in one sense although carried on in all the States of the Commonwealth. All industries except transport by land and sea are local in one sense and subject to State laws - such as shearing, coal mining, gold and silver mining, building, tanning, ironfounders, bootmaking, &e. - and some meaning must be given to the words "extend 3 beyond" in sec. 51, pl. xxxv., applicable to the chief industries - established in the Commonwealth at the date of the Constitution. In the same section (51), pl. xxxvii., the word "extends" must be - read as " applies"; and in pl. xxxv. I think the word " extends" must be read as " exists" - that is, the power given was one to prevent and settle a dispute which exists in more than one State, reserving the power to the State to deal as it thinks fit with disputes which exist only in the one State. Disputes between employers and employees do not extend from one State to another in the same way as a railway does; but they extend by an increasing number of employees engaged at different _ places in the State or Commonwealth in the same class of industrial enterprise dissatisfied with their wages or conditions, and deter- 4 mined to have their wages increased or conditions altered, demanding from their respective employers the same increased wages or altered conditions, and, after the employers refuse to concede them, persisting in their demands for such increased wages or altered con-_ ditions. The fact that some of the employers and employees in (1) 4C.A.R., 1, at p. 7.

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better conditions before the plaint was a joint one by the clain
Union, on behalf of all its members, for the same wages for class of work throughout the Commonwealth, not for different y cr conditions in different States, and all the members wanted the same wage, not different wages and conditions in the different States. The employers in the building industry throughout the Com- monwealth also have a community of interest, for they formed - a federal Union of master builders as far back as 1900 for defensive purposes to defend themselves against claims by their employees. - In the Federated Engine-Drivers' Case (1) the late Mr. Justice O'Connor said : - " The common interest, for the protection of which the associated employers combine, is that which arises from their employing labour in carrying on the same class of industrial enter- prise." This " Federal Union of Master Builders" after the first - federal log was served met in November 1911, and dealt with the demands of the '" Federal Union of Employees," and practically declared industrial war in their common interests throughout the Commonwealth by passing a resolution to oppose the builders' labourers' claim "in the log." The only question fcr consideration under the circumstances mentioned is whether it was only five separate State disputes at the date of the plaint or one inter-State dispute. The evidence to my mind shows conclusively that the dispute extended in the ordinary way as one dispute for the same cause, and for the same remedy, namely, to obtain for the employees in all the States in the same class of industrial enterprise a living wage and other claims in common desired and demanded by all the members _ throughout the Commonwealth, and not for members in one State only. The members of the five State Unions as far back as 1910 decided _ to dispense with their State Unions and to become members of one federal Union to obtain a settlement of one dispute by one federal Union of the one set of grievances existing in all the States for all their members. The position therefore was that for some time before the plaint - (1) 12 C.L.R., 398, at p. 435.

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considered necessary to warrant him in coming to the conch i that there was an industrial dispute extending in that case. In the Sawmillers' Case (1) the late Mr. Justice O'Connor referring to a Commonwealth dispute said : - "If the workers so united obtain the co-operation of their fellow-workers in the same trade in another State in such a way that the combined workers in the trade in both States take concerted action against their respectiv employers in both States for the making and enforcing of the same demands, there is an industrial dispute extending beyond the Timite 4 of one State." The evidence in this case to my mind proves all that the learnt ; Judge said was necessary to prove an inter-State industrial dispute. A common log of prices and conditions was agreed to - to remedy common grievances, and not to remedy different grievances in differ- ent States. All State grievances as to different wages claims were sunk for a common claim, and a demand was made for wages F and conditions which all members required and all intended to insist upon. I hold the dispute was one inter-State industrial dispute at the : date of the plaint. A further objection was raised that in this case a dispute did not extend beyond the limits of one State at the time the plaint was filed because the State disputes had all been settled by State - Wages Boards before the plaint was filed. That objection fails because (1) the disputes were not settled by State Wages Boards in any of the States on the evidence before the Court; (2) the State Wages Boards are not appointed to settle dis- putes, but only to fix a minimum wage to be paid in the particular trade in question, whether there is any dispute or not at the time in the industry. The Board fixes a minimum wage irrespective of disputes or prob- able disputes. The Wages Boards simply fix a minimum wage, and the law does not compel any person to work for that wage. The employees can legally demand more than the minimum ; they can legally disagree as to the amount to be paid in excess of the minimum, and they can legally cause a dispute as to the amount to be paid (1) 8 C.L.R., 465, at p. 504.

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