R v Commonwealth Court of Conciliation and Arbitration [1938] HCA 41

R v Commonwealth Court of Conciliation and Arbitration [1938] HCA 41 - HCA 1938 case summary — Zoe

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in respect of non-unionists. There was a grievance or cause of complaint anterior to the log arising from the employment by certain Victorian manufacturers of non-unionists at less than award rates, but it did not amount to an industrial dispute extending beyond the State of Victoria. I think the log crystallized and made definite the claims of the union for the remedying of this grievance. Sec. 388 of the Commonwealth Conciliation and Arbitration Act 1904-1934 enables the court to give relief although not claimed, but this section does not authorize an award outside the limits of the dispute, i.e., an award containing provisions of a different kind from anything contained in the demands of the parties. I do not propose to lay down any general proposition as to the limits within which the court may provide alternatives to the particular industrial regulations specified in a log. But in the present case J think that the union defined what it wanted in respect of this particular matter. What it wanted was compulsory unionism. I do not think it is open to the court to give it instead a provision extending the award to non-unionists in common with unionists. His Honour the Chief Judge considered that at a later date a dispute was, if I may use the expression, re-defined by the communings between the parties, most of which took place in the course of attempted conciliation. I am disposed to agree with him in the view that after the dispute was submitted by plaint the union made it clear to Mr. Kirsch, one of the prosecutors, that one of its principal aims was to prevent him paying less than award rates, and to that end it now sought an award applying to employees generally, including non-unionists. This seems to me a new dispute or a new item added to the old dispute. I do not quite see where, as such, it gets its inter-State character. Further, it does not seem to have been brought within the cognizance of the court. A compulsory conference was held, and ultimately, after many continuances, an order of reference was made in March of this year. But the order of reference is headed in i the matter of the original dispute and does not seem to be intended to refer into court the new matter of dispute: even if by some doctrine of accretion it is considered part of the original dispute the order of reference identifies a dispute existing at a date before the accretion, i.e., the date of the plaint. I think we should concern -

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persons who are not members of the Federated Felt Hatting Employees' Union of Australia - the claimant union in the pro- ceedings mentioned - the same wages or to give to them the same general conditions of employment as are paid or given to members of the claimant union, or, in short, whether the court has jurisdiction to award that the prosecutors pay non-unionists the same wages as unionists and observe towards them the same general conditions of employment as are prescribed for unionists. 8 A writ of prohibition, however, does not issue unless a court is acting without or in excess of its jurisdiction. The Metal Trades Case (1), with which I am unable to agree, though I must follow it, asserts the jurisdiction of the Arbitration Court to make an award governing the employment of all persons, whether members of the union or not, employed in the industry by a respondent to the arbitral proceedings. But it is a condition of the jurisdiction that an industrial dispute should exist extending beyond the limits of a State and that the subject matter of the dispute should relate to or include the wages and working conditions of non-unionists. Further, it is a condition of jurisdiction that the dispute should be submitted to the Arbitration Court in one of the methods prescribed by sec. 19 of the Act (Broken Hill Pty. Oo.'s Case (2)). The evidence establishes that an industrial dispute extending beyond the limits of a State did exist between the parties to the proceedings mentioned in the order nisi. But the nature and extent of the dispute depends upon the construction of what is called a log of claims or demands prepared and submitted to the employers by the union. The - correspondence and discussions between the union and various employers prior to the submission of the log are unimportant and, in my opinion, irrelevant, for the union in the log formulated its demands and by its submission to the court identified and made explicit the nature and extent of the dispute. It is said that this log, properly construed, makes no claim and therefore raises no dispute in respect of the wages and working conditions of non-unionists but only in relation to compulsory unionism. The Chief Justice has set out and discussed the various clauses at length, and he has reached the conclusion that the log does not claim nor make part

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the terms and conditions upon which they may employ unionists or non-unionists. Now, apart altogether from this development of the law, it has been well understood that, when a dispute in relation to any particular term of employment or condition of labour is before the court for settlement, the power of the court extends to the making of such award as appears apt and proper to determine the dispute and to give just relief from the substantial grievance from which it arises. In spite of the many unrealities which have attended the growth of the jurisdiction, the discretion of the court to provide that remedy which on investigation appears best calculated to achieve the chief purpose of the court, namely, the settlement of industrial disputes, has never been restricted by a requirement that it should rigidly adhere to one or other of the rival proposals or desires of the respective parties. This principle retains its place in the system and must be applied to the developed condition of the law. But the court cannot make an award except for the settlement of the actual dispute between the parties, and, therefore, it is beyond its jurisdiction to impose an obligation upon them or one of them that is not related to the disagreement or issues between them, that is, to the matter of the dispute. Many expressions have been used to describe the kind and the degree of connection which is necessary. It is sometimes said that the relief contained in the award must be relevant. Sometimes that it must be reasonably incidental to the settlement of the differences constituting the dispute. Sometimes that it must be appropriate to the settlement of the dispute ; that is, the relief must have a rational or natural tendency to dispose of the question at issue. In applying a test of such a nature, it is important to understand the true character of the two things to be brought into comparison, the matter of the dispute and the provision proposed. To obtain a correct understanding of the matter in dispute, it is not enough to read the text of a log of demands without regard to any of the facts and circumstances out of which it arises. A log is not an instrument with a prescribed legal effect. It is nothing but a catalogue of claims supposed to represent the real desires of actual people.

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served by the respondent organization, fairly read, expressly says that the rates and conditions therein specified are demanded for the members of the organization. But the log included the following demand, which, in my opinion, should be read as having a necessary relation to the demand for minimum rates of wages and the other specified industrial conditions. Clause 33 of the log reads : - " From and after the coming into operation of any agreement or award based upon this log, all persons joining the service of any employer shall within one month of their so joining become members of the claimant union subject as hereinafter mentioned and it shall be a condition of employment of all employees that they shall join the claimant union and that they shall remain members of the union. If any employee joining the service shall neglect to become a member of the said union within the time specified he shall be dismissed. If any person who has already joined the union or who shall pursuant to the provisions of this paragraph join the said union shall voluntarily resign from the union he shall be liable to dismissal and shall receive a notification from the employer that he is liable and unless he rejoins the union within one week from the date of such notice he shall be dismissed. This clause shall cease to operate as regards any employee whose application for membership is refused by the union." The result of the satisfaction of this demand would be to unionize all factories in the industry. But it would be blinding oneself to realities to say that the sole object of the demand was to gratify the desire of the ardent unionist that every worker in the industry should be a fellow-unionist. At the time the log was served, it was believed that the Court of Conciliation and Arbitration did not have jurisdiction to bind employers to observe such conditions as it could prescribe in the employment of non-unionists. The desider- atum of uniformity of conditions which is so essential to the industrial interests of unionists could not be secured directly by award. To award minimum rates and specified conditions to be observed in the employment of unionists would, however, be calculated to injure the unionists if the employers' complete freedom of contract in the employment of non-unionists was left unimpaired. But the desideratum of fixed rates and conditions for all employees could be secured, and the menace which the very fulfilment of the demand

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for better wages and conditions for unionists would bring to the unionists could be averted if every employee were compelled to be a unionist. Every employee would then become entitled to union tates and conditions, and, if an award or industrial agreement were made for the industry, would have his employment governed by its conditions. The demand that employers should employ unionists only was, whatever its other objects, a roundabout method adopted by the union of securing that the interests of the unionists would not be jeopardized if the employers acceded to the demands which it made for its own members. The refusal of that demand, therefore, meant that the employers were determined to resist the introduction of uniform minimum rates and predetermined industrial conditions for all their employees. Reading the demand for such rates and conditions with the demand for the employment of unionists only, it is clear that the log was an intimation to the employers, and this intimation was indeed reinforced by the covering letter sent with the log, that the union was demanding compliance with the log as a code of employment for the industry. In rejecting the code, the employers precipitated, in the theory of the Federal law, an indus- trial dispute, which I think must be held to have included within its ambit the question whether all employers in the industry should observe fixed rates and conditions in the employment of all their workers, whether unionists or non-unionists. For the purpose of settling that dispute, the court is not limited to making an award in the terms of the demand for compulsory unionism, if it thought that this part of the dispute should be settled by an award. Its jurisdiction extends to the making of any award which is relevant to the dispute and appropriate to its settlement. Since the Metal Trades Case (1) has defined the jurisdiction of the court, it need not pursue the roundabout method of making an award in terms similar to the demand made by the respondent organization for compulsory unionism, for the purpose of settling the dispute whether non- unionists should remain outside a scale of rates and conditions to be imposed on the employers in order to secure peace in the industry. An award imposing the obligation on the employers to observe prescribed rates and conditions in the employment of non-unionists

At a glance

Court

Decision date

Before

Source

Judgment (192 paragraphs)