R v Commonwealth Court of Conciliation and Arbitration and Merchant Service Guild of Australasia [1912] HCA 85

R v Commonwealth Court of Conciliation and Arbitration and Merchant Service Guild of Australasia [1912] HCA 85 - HCA 1912 case summary — Zoe

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not say that these things are necessary ingredients in the proof; but they go far to show that there is something more than a mere claim. And something more there must be, unless we are to say that a sudden and peremptory claim must either be conceded or must amount of itself and by itself to a dispute. If that were so, paragraph xxxv. would be equivalent to this: " Conciliation and Arbitration upon industrial claims not restricted to the limits of any one State." Such a form of words expresses an absurdity in such a Constitution as this, but it fairly represents the proposition we are asked to affirm. The paragraph, construed in that sense, would mean the speedy handing over of all the industrial concerns of each State to be regulated by the Commonwealth Arbitration Court; for the requirement as to extension would be merely of nominal effect. Such a result would, no doubt, be highly satisfactory in some quarters. The difficulty is that instead of being what the Constitution intends, it is quite foreign to the whole scheme of that instrument. I said in Whybrow's Case [No. 1] (1), and I repeat, that "The very method and form of the constitutional delimita- tion involves this consequence, that, before a grant of power to the Commonwealth can be held to cut down any power included in the general reservation in favour of the States, it must be clear, either from the words of the grant itself, or by necessary implication from those words, that such an effect is intended." And I then pointed out that this doctrine had been repeatedly relied upon in the decisions of this Court. The line of decisions is now some- what long, because of the frequency with which it has been found necessary to invite the Court to protect the Constitution from invasion, and to preserve its federal structure. This Court fulfils its highest obligations to the people, and truly keeps the trust which they handed to it to defend, when it ensures that no attempt at unification on the one hand, and on the other hand no straining of what are called State Rights, shall be allowed to sap the sound

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were given, because it was preliminary, and the main case is still pending ; and so I think it respectful to the legislature to state my reasons now, more especially as at first sight the ruling may seem inconsistent with Baater's Case (1), which arose under a State Act. Whybrow's Case (2) decided that the power of this Court to interpose by writ of prohibition where a Commonwealth Court is proceeding without jurisdiction is given direct by the Constitu- tion as original jurisdiction of the High Court, and there being no authority to Parliament to annul that authority, any attempt to do so necessarily fails. By that decision this Court, unless con- stituted as a Full Bench, is bound, and so this case must be deter- mined accordingly. Now the legal effect of an enactment must be judged of by its language fairly construed, and the object which the legislature has sought to attain cannot alter the plain meaning of words used. The object sought to be attained in this instance is obviously to put an end to continual wrangles as to mere questions of fact, as whether a dispute had arisen, and to leave that to the determination of the judicial tribunal which is engaged in settling the dispute itself, and which sees and hears the witnesses, views the localities, and the industrial premises and instruments, and is in every way better situated to determine it than this Court acting on paper testimony can possibly be. But, as I pointed out in Why- brow's Case (3), the Act then conferred no jurisdiction on that Court to determine whether an inter-State dispute existed. It con- ferred merely a jurisdiction to determine claims contingently upon there being a dispute which in fact existed and extended at the time the plaint was filed. O'Connor J. drew attention to the same thing in the Broken Hill Case (4). And this still remains un- altered. All that the legislature has done, on the inevitable con- struction of the words it has used in the amending Statute, is to declare that even if the Court does exceed the jurisdiction given by Parliament no prohibition shall go. It has not used any language

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e, as a declaration of then present dissatisfaction and a claim for better conditions accompanied with or followed by a determined nd a persistent refusal, concerted certainly so far as individual tes are concerned, and, in all likelihood, with full knowledge in State of the attitude taken up elsewhere, - if this set of cir- mstances can in point of law constitute a dispute in fact, it ted beyond doubt in this case. But, say the shipowners, that is not enough : in order to satisfy law embodied in the Constitution there must have been in fact isting dissatisfaction, and that pre-existing dissatisfaction have been communicated to or known by the employers at some nite period anterior to the demand itself; and so that forms the question. _ 3. Must prior dissatisfaction be known or communicated before the demand? If this is not necessary as a matter of law, then the present objection must fail, because there is no shadow of doubt, the demand formally made and the dissatisfaction co-existent therewith were teal enough. If it is not needed to complete the demand, it cannot be necessary to complete the employers' refusal; which is quite ependent of any preliminary dissatisfaction of their employés. If, however, it is necessary as a matter of law in this case, it is so always. And, if so, then if, instead of filing a plaint in this case, ~ the men had actually struck, and thrown the whole Commonwealth confusion, still on the applicants' argument there would be no spute. This is an absurd result, but it is the inescapable outcome the contention, because, as will be more clearly pointed out ently, the filing of the plaint is the substitute for the strike, and if preliminary dissatisfaction is necessary in the one case to con- 'stitute a dispute, so it is in the other. Besides, grievances some- arise suddenly, and are at once objected to, and a demand for alteration. Hither, then, prior dissatisfaction is not neces- y, much less communication of it to the opposite party, or else 'in such case there can be no dispute unless the grievance is submitted _to for some appreciable period and negotiations more or less pro-

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personal compulsion. And this view is fully borne out by O'Connor J. in the Saw Millers' Case (1). He there reiterates his formula - _ not exhaustive but clear and distinct as to the present point, and of the greatest importance, and so I quote the passage : - ' If all the workmen of an employer in a particular trade take concerted action in demanding and endeavouring to enforce from him some alteration in their conditions of employment, there is an industrial dispute." Nothing about prior dissatisfaction - or prior communication or knowledge of dissatisfaction. But the expression " endeavouring to enforce" connotes resistance to and persistence in the demand, and is the only addition to the demand the learned Judge thought necessary. Then his Honor proceeds to apply that to a whole State in these words (1) : - " If all the workers throughout the State in the same _ trade unite in the making and endeavouring to enforce the same mand from their respective employers, there is an industrial "dispute involving the whole trade throughout the State." And then the same view is applied to the Commonwealth dis- pute (1) : - "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 respective employers in both States for the ing and enforcing of the same demands, there is an industrial dispute extending beyond the limits of one State." _ The same learned Judge uses language which is relied on to attach a limited meaning to the term dispute. He said that the differences 'must be actual differences, and that the framers of the Constitution and the British Parliament were dealing with the subject practically, _ and adds (2) : - They were thinking of real industrial disputes, not of industrial disputes that existed only on papét, or were got up for

the attainment of some other and ulterior object than the settlement nces between employers and employés. They were pane

At a glance

Court

Decision date

Before

Source

Judgment (262 paragraphs)