R v Commonwealth Industrial Court; Cocks, Ex parte

R v Commonwealth Industrial Court; Cocks, Ex parte - [1968] HCA 86 - HCA 1968 case summary — Zoe

[23]

This is of considerable importance in view of the pronouncement by a majority of the members of the Court in Reg. v. Foster; Ex parte Commonwealth Life (Amalgamated) Assurances Ltd. [1] . In that case the Court had occasion to consider the content of the definition of industrial matters contained in s. 4 of the Act as it then stood - "all matters pertaining to the relations of employers and employees and, without limiting the generality of the foregoing includes" a great many of the incidents of such a relationship and of the work to be done pursuant to such a relationship - and after examining the provisions of the definition and its history, the decision in Amalgamated Society of Carpenters and Joiners v. Haberfield Pty. Ltd. [1] , and other authorities dealing with State industrial legislation in pari materia, expressed the view "that the kind of relationship to which the definition in s. 4 of industrial matters refers by the expressions "employer" and "employee" is, under another name, in substance the relation called at common law master and servant". This, of course, means that there never could be an industrial dispute simply as to whether it should or should not be permissible for an employer in any particular industry to employ independent contractors in performing relevant work outside the employer's factory or workshop and that a dispute as to any such question would not be an industrial dispute as defined. It is as well to remember that it is not every dispute between employers and employees in an industry which constitutes an industrial dispute within the meaning of the Act; it must be a dispute as to an industrial matter or industrial matters as defined and the subject matter of a dispute will not become an industrial matter simply because employers and employees are sufficiently interested in it to dispute about it. Disputes may, of course, arise between employers and employees with respect to any practice in an industry but the Act does not commit to the Commission authority to regulate generally the manner in which industry shall be carried on; its authority is limited to regulating the relationship of master and servant in the industry and matters which are truly incidental to that relationship. Accordingly, matters specifically designated in the definition such as (a), "all matters or things affecting or relating to work done or to be done", must be understood as a reference to work done or to be done pursuant to contracts of service and such as (e), "the question whether piece-work or contract work or any other system of payment by results shall be allowed, forbidden or exclusively prescribed", must be understood as limited to authorizing the prescription of a particular system of payment in the case of persons engaged under contracts of service.

[25]

However the respondents' basic submission - and we quote - is that the clause is ancillary to the control and preservation of the terms and conditions of employment of members of the union and that it is competent to the Arbitration Commission to regulate employers in relation to any labour which is in competition with that of the disputants or a substitute for it and that outdoor workers labour, whether it be that of independent contractors or employees, is in that category. By this we understand counsel to mean that the employment of independent contractors may be forbidden by the Commission in particular industries, or, the terms and conditions upon which they may be employed may be regulated, if it be thought necessary or desirable in the interests of employees in the industry who have entered into contracts of service. But if this be so it is difficult to see why the Commission may not, where it is thought to be necessary or desirable in the interests of employees in a particular industry, forbid or regulate practices having no connexion with the relationship of master and servant in the industry which may be thought to operate detrimentally to the interests of employees. But this is clearly not so as is shown by a glance at the decisions of this Court in cases such as R. v. Kelly; Ex parte Victoria [1] ; and Reg. v. Foster; Ex parte Commonwealth Steamship Owners' Association [1] . However, the respondent organization points to the case of Federated Clothing Trades of the Commonwealth of Australia v. Archer [2] , which, it was said, is clear authority for the proposition that a dispute as to whether an employer in the clothing industry shall be at liberty to have work done by employees outside a workshop provided and controlled by him is an industrial dispute. It is true that in that case a majority of the Court held that a dispute between the claimant and the respondents as to such a subject matter was an industrial dispute as that expression was then defined. But this was only one of several diverse subject matters which were in question all of which were held to have given rise to an industrial dispute. We confess that we are unable to discover in the joint judgment of Isaacs and Rich JJ., or in their joint judgment in the Badge Case [Australian Tramway Employés Association v. Prahran and Malvern Tramway Trust] [3] , to which they refer, any statement of a reason in justification of the conclusion that the particular subject matter to which we have referred was an industrial matter as defined. Nor are we able to subscribe to the view expressed by the other member of the majority - Higgins J. - that the claim for an order forbidding work outside the shop or factory came "easily within the definition". His Honour observed that [4] :

[44]

In this connexion it is necessary to bear in mind s. 60 of the Act, providing that "subject to the Act" an award is final and conclusive and shall not be called in question in any court, and that a determination or finding of the Commission upon a question as to the existence of an industrial dispute is conclusive in all courts. If this section were to be interpreted with complete literalness and without the qualifying expression which introduces it, the Commonwealth Industrial Court would be obliged, as in fact it thought it was, to treat s. 119 as giving it jurisdiction to impose a penalty for "any breach of any term" including a term which, so far as material, the award-making authority had no power to put into the award. But it has long since been decided that s. 60 has not so extensive an operation, for, as its introductory words acknowledge and require, the provisions it contains must be reconciled with the rest of the Act and particularly with the provisions which subject the powers of the Commission to limitations some at least of which are plainly intended to spell invalidity for any action that transgresses them. The mode of reconciliation which is established by such cases as R. v. Hickman; Ex parte Fox and Clinton [1] ; R. v. Murray; Ex parte Proctor [1] ; Reg. v. Central Sugar Cane Prices Board; Ex parte Maryborough Sugar Factory Ltd. [2] ; and Coal Miners' Industrial Union of Workers of Western Australia v. Amalgamated Collieries of Western Australia Ltd. [3] , is to interpret s. 60 as validating, so far as it can validate it constitutionally, any award provision which is outside the power of the Commission if on its face it appears to be within power and is in fact a bona fide attempt to act in the course of the relevant authority. The bona fides of the commissioner who inserted cl. 30 (1) (a) in the award no one would question; but, as the reasons that have been given in the joint judgment show, cl. 30 (1) (a) on its face travels into an area in which the Commission had no power to tread, namely the area of matters not pertaining to the relation of employers and employees but pertaining only to relations between employers and persons who are not their employees. Moreover, a parallel course of reasoning to that which leads to the conclusion that cl. 30 (1) (a), in its application in respect of persons who are independent contractors, deals with a matter which is not an industrial matter within the meaning of the Act must lead also to the conclusion, as it seems to me, that cl. 30 (1) (a) in that application cannot be sustained as a provision made in settlement of an industrial dispute within the meaning of s. 51 (XXXV.) of the Constitution. This is to say that a dispute as to whether a provision having such an operation should be a term of employment in an industry is not an industrial dispute in the constitutional sense, and the provision cannot be sustained as incidental to the settlement of any dispute which is an industrial dispute in that sense. For this reason s. 60 could not constitutionally have an operation which would validate cl. 30 (1) (a) in its application in respect of non-employees, even if on its true construction it affected to do so. Equally s. 119 considered by itself, being construed so as to be constitutionally valid, cannot be interpreted to mean that a penalty may be imposed for a breach of something which, though appearing as a term of an award, is not one that in its nature is capable of being included as part of the settlement of an industrial dispute in the constitutional sense of the expression.

At a glance

Court

Decision date

Before

Source

Judgment (60 paragraphs)

Parties