R v Commonwealth Court of Conciliation & Arbitration [1914] HCA 58;

R v Commonwealth Court of Conciliation & Arbitration [1914] HCA 58; - HCA 1914 case summary — Zoe

[25]

The evidence that there was a dispute at the time the plaint was filed, with the two respondents who did not settle (the Brisbane Tramway Company Limited and the Adelaide Tramway Trust), is undoubtedly very much stronger than the evidence as to a dispute with those who did settle. It is, however, contended that there was no dispute even with the eight respondents who settled; that they only imagined there was a dispute, and that it was with the registered organization, when, in reality, there was not any dispute at all; and that if there was any dispute, it was not (because of a host of technicalities) with the registered organization, but with some supposed association which had never filed any plaint. The imaginary disputes were settled by formal written agreements made with business men, directors of companies or trusts, carrying on important tramway services (cable or electricity) in Melbourne, Hobart, Perth, Fremantle, Ballarat and Bendigo. These business men, in my opinion, knew whether they had a dispute or not, and with whom their dispute was, and what the dispute was about. In each of these written agreements (a separate one for each respondent Company) the parties are the respective respondents and the claimant registered organization (as "The Australian Tramway Employees' Association," registered under the "Commonwealth Conciliation and Arbitration Act 1904-1911"), and the matters dealt with are referred to as set out in the Association's plaint (No. 16 of 1911), which it is now decided was never filed by or for the registered organization. In some of the agreements referred to I find the following recital: - "And whereas the parties hereto have met in conference and have with the assistance of the President of the Court agreed to a settlement of the matters in dispute as hereinafter appears" &c. The agreements produced under which the disputes were settled were formally presented to the President of the Court by the representatives for both parties for his certificate under sec. 24 of the Commonwealth Conciliation and Arbitration Act 1904-1911. Agreements under that section are only valid as awards if they are agreements made in settlement of inter-State industrial disputes, and as the majority of the Court finds there was not any dispute at all, the agreements are, I presume, waste paper.

[26]

It was contended that there was not any industrial inter-State dispute between the registered organization and the ten respondents, or any of them, notwithstanding the two demands, the persistence in the demands and in refusals before and after the plaint, three attempts to obtain conferences to settle the dispute, and the settlements by eight out of the ten respondents. It appears to me only necessary to refer especially to the two applicants for the rule nisi, because I cannot bring myself to find that there was not any inter-State industrial dispute with the other eight respondents, when they admit there was, when they signed agreements settling the dispute and asked the Court for a certificate which only gives to those agreements the effect of an award if there was an inter-State dispute. As to the other two respondents, no formal demand was made by the officers of the Association for the wages and conditions the members required before the demand of May 1911, for the following reasons: - Prior to the registration of the Association the employees of the Brisbane Tramway Company Limited were debarred by discrimination from joining any federal association and from joining any State union not consisting solely of the employees of the Company. In May 1910 the Brisbane employees did not, for that reason, send any representatives to a general conference of tram employees called in Sydney in May 1910. Discrimination against employees joining unions outside the Company's employees was clearly proved. Prior to registration of the Association, the employees of the Adelaide Tramway Trust were also debarred from submitting any requests through any officers of any federal or State association or union if such officers were not employees of the Adelaide Trust. Subsequently to the registration of the Association both these respondents continued the same practice, and any requests for recognition or demands made on behalf of the employees by the officers of the federal organization formed under the authority of federal legislation were ignored. The President in his judgment in this case, referring to the demands of the organization, said[50]: - "A collective demand from a strong and broad union is often the only mode of relief that is open. The agents of such a union do not, in my experience, spread discontent; they generally spread hopes of getting relief from existing grievances, by arbitration instead of strike. If, however, the crude doctrine should ever be established that there can be no dispute for the purposes of the Arbitration Court, unless the men" (personally) "either worry the employer, or resort to a strike, it is easy to see what will happen." Some of the witnesses truly said in this case: - "If two of our fellow employees voiced all our complaints the employers would look upon them as dissatisfied men and agitators, and would soon make some excuse to get rid of them. Outsiders are the only persons who can properly bargain for us with our employers." This refusal to recognize the federal law and to consider any requests made by a registered organization was in a way relied upon by the applicant respondents as a proof that there was not any dispute - on the ground that claims were not made by the only persons recognized by the employers, namely, employees of the local Company or Trust, and therefore there could not be a dispute. As the Company would not receive communications from, or confer with the officers appointed by the federal organization, formal demands by registered letter were therefore necessary before plaint. One was made by the officers, and one by the solicitors of the registered organization. The employees did ask for minor matters such as special concessions on Christmas Day, alterations of time tables, &c., after the plaint, and that was used, not quite fairly I think, to show that the employees asked for what they really wanted, and that the log demanded was not a demand they intended to persist in.

[37]

It was contended that the minute submitted of 30th November 1910 showing that the South Australian employees joined the registered Association as a branch was tampered with, and that such a resolution had never been passed in the form it was submitted. Prendergast, an informer, said that it was not passed in the form submitted, and that it had been added to, but he, admittedly, was not present at the meeting when the resolution was alleged to have been passed. To prove the genuineness of the minute the mover and seconder swore to it as a resolution passed at the meeting of 30th November 1910. The president (a member of Parliament), other members of the Association present at the meeting, and the secretary, who was present and wrote out the minute, swore that it was passed on the day the minute recorded it as passed. A great deal of time was spent over this minute, and I think unnecessarily, because I find in minutes (which were admitted to be genuine) between that date and the date of the plaint in this case, several direct references to the fact that the South Australian members formed a branch of the registered Association "The Australian Tramway Employees' Association." One minute particularly, on 12th July 1911, shows that the subordinate position they occupied as a branch was recognized. In it the following appears: - "Mr. W. S. Holmes asked: Has this branch power to accept Mr. Irvine's resignation, he being a federal officer? The secretary explained that this branch could receive the resignation and forward it to the federal Executive with a recommendation that it be accepted." All the minutes show the South Australian members recognized themselves as a branch of the Association which was registered, and which was engaged on their behalf in pressing the claims and preparing the plaint. There was no need to invent or tamper with the minute of 30th November 1910 (in February 1912), when so many other minutes in 1910 and 1911 proved that the South Australian members joined the registered Association as a branch.

[42]

It was contended that there was no real dissatisfaction, and that if there was dissatisfaction it was not known or expressed to the employers. If the ex parte statements of Mr. Goodman (Adelaide) and Mr. Stephens (Brisbane) on the application for a rule nisi, referred to by the learned Chief Justice, disclosed the real state of affairs between employers and employees, and the employers had not refused to treat with the organization or its officers, I would agree that there was not dissatisfaction known to the Brisbane respondent at the date of the plaint; but in my opinion it was proved to be incorrect, both by evidence given on behalf of the applicants and on behalf of the respondents. The cablegrams and letters from Mr. Stephens to Mr. Badger, the manager, then in the United States, and his replies, and those referred to by my brother Isaacs, show that he (Mr. Stephens) knew that the Company's employees, because of dissatisfaction with their conditions, proposed to join this federal Association to assist in enforcing their claims. The 56 witnesses of the claimant organization, without any exception, swore to dissatisfaction with wages and conditions before plaint, and I do not find any evidence to make me disbelieve all those witnesses for the claimants. Mr. O'Halloran, counsel for the Adelaide Trust, said that if the award was upheld it would mean an increased expenditure to the Trust of £20,000 per annum. Accepting counsel's statement as correct, the fact that they were receiving £20,000 per annum less than a Justice of this High Court, as President, found that they ought to be paid in Adelaide was surely sufficient to justify dissatisfaction so far as the Adelaide employees are concerned. The Brisbane Company also informed the President that the claims, if conceded, would greatly add to the cost of the working of the Company's tramways. The evidence, I hold, shows that there was reason for dissatisfaction, that there was dissatisfaction, and that the dissatisfaction was known to the employers before the plaint was filed. The dissatisfaction was not expressed to the Brisbane and Adelaide respondents by the organization before the formal demand in May, because those respondents would neither see nor correspond with the federal representatives of their employees; but it was expressed to the respondents by the officers of the organization in May, and by the solicitors for the organization in September, and for the organization in October 1911 through the president, who asked about a conference to settle the dispute before the plaint was filed.

[53]

In Keates v. Lewis Merthyr Consolidated Collieries Ltd.[56] Lord Atkinson in delivering judgment said: - "It is obvious that this peculiar quasi-parental jurisdiction was conferred in the interest of industrial peace, and should not be hampered by rules of pleading." It must also be remembered that all these legal technicalities have to be dealt with by an Arbitration Court in which either party to the proceedings has the right - which is generally exercised - to prevent counsel or solicitor or any paid agent from appearing for either party. The danger of preventing the Court from doing useful work because of the difficulty in obtaining an award, and maintaining it when obtained, was pointed out by the President in giving a judgment in August 1911, and again in this case. In his absence I propose to quote what he then said. In giving judgment on 5th August 1911 in the case of the Australian Boot Trade Employees' Federation v. Whybrow & Co.[57] the learned President said: - "I have given merely one instance out of many that could be adduced to show the increasing difficulties of this Court. At present, the approach to the Court is through a veritable Serbonian bog of technicalities; and the bog is extending. After full consideration, I must state it as my opinion that these decisions as to the limits of the Court's power, with all the corollaries which they involve, will make it impracticable to frame awards that will work - will entail, indeed, a gradual paralysis of the functions of the Court. Yet this Court, if it be trusted - and unless it can be trusted it ought not to exist - shows magnificent promise of usefulness to the public. It is in a position to solve problems which cannot be solved, to settle disputes which cannot be settled, by any tribunal except one that has authority in all parts of Australia. In this very case, in my reasons for award, I showed that in industries as to which there is inter-State competition the State Wages Boards confessedly cannot do justice. It would not be well to go into further detail on this subject, for obvious reasons. But I am clearly entitled - I am even in duty bound - to make known the obstacles and dangers which confront the Court, and before it is too late."

[71]

Did such a dispute exist in Queensland or South Australia? This depends on the facts in each case; and the evidence furnished to us is vague, fragmentary and ill-arranged, and some of it is quite untrustworthy. But it is on this evidence not the very different evidence which was before the Court of Conciliation and Arbitration, that we must act. Dealing with this evidence as well as we are able, we have come to the conclusion that the employees in both States believed that the trouble and expense of an appeal to the Court of Conciliation and Arbitration would be amply repaid if they could obtain an award, and that the chances of obtaining an award justified the necessary expenditure of time and money. So believing, they were willing and even anxious that the claim should be submitted to the Court on their behalf in such form as would be likely to secure them the most advantageous terms. They were also willing and even anxious that all conditions should be fulfilled in order to enable the Court to adjudicate on their claim. They and those to whom they entrusted the conduct of the proceeding probably thought that the submission of the log and the refusal by the employers constituted a sufficient dispute to give jurisdiction to the Court, and had they not thought so they no doubt would have taken any further step that was considered necessary to give such jurisdiction, but they were so engrossed in the production of a satisfactory claim and its carriage through the Court that they overlooked the necessity for a substantial dispute, or pretermitted the function of creating one. The service of the log on the employers was no more than a formal step on the road to arbitration, and was not effected with the expectation or even with the desire of obtaining any concession from or conference with the employers, except in so far as they might be obtained as incidents in the arbitration proceedings. The log, as a whole, did not represent the real grievances of any body of employees, what they were determined to get, or even what they thought they were entitled to get as a matter of fair play between themselves and their employers. It was merely the claim which those who had the carriage of the business considered would be likely to obtain the most favourable award from the Court. No doubt it contained some items which employees in all the States considered they were fairly entitled to claim, and many items which the employees in some two or more States thought reasonable, but we do not think that it contained any item about which there could be said to exist in either Queensland or South Australia a "dispute extending beyond the limits of any one State," as described in the words we have already cited from The Builders' Labourers' Case[73]. That being so, the Court of Conciliation and Arbitration had no jurisdiction to make an award in respect to the applicants in either case, and both orders should be made absolute.

At a glance

Court

Decision date

Before

Source

Judgment (122 paragraphs)

Parties

Legislation Cited (4)

Cases Cited (2)

R v Commonwealth Court of Conciliation & Arbitration [1914] HCA 58; (1914) 19 CLR 43 (16 October 1914)