R v Conciliation and Arbitration Commission; Ex parte Victoria

R v Conciliation and Arbitration Commission; Ex parte Victoria - [1977] HCA 58 - HCA 1977 case summary — Zoe

[5]

Of course, a person or body on whom no demand is made, either directly or indirectly through membership of an association, cannot be a party to a dispute dependent entirely upon a demand denied or not conceded. A dispute is essential to the jurisdiction of the Commission. Whilst a person or body may choose with whom it will seek to create a dispute, when it is apparent, as it must have been to all concerned in the formation of the Metal Industry Award, that some employers had been deliberately omitted from the list of those to be served with a demand for wages and conditions, and that the award will inevitably in due course be extended to those excluded employers, the Commission has adequate power to ensure that those who, almost inevitably, are to be affected by an award made on a demand on a limited part of an industry, are placed in a position to participate in the resolution of the wages and conditions which must in due course be sought from them. Apart from its general power to regulate its own procedure, and its wide powers of inquiry as to all matters affecting the merits of the dispute, the Commission has power to direct parties to be joined (s. 41 (1) (j) of the Conciliation and Arbitration Act 1904 Cth, as amended). It could require the joinder as disputants of other members of the industry to which as a whole in truth an award was being sought. This would involve a direction that the demand be made on such other members of the industry. It can withhold its action on the existing demand till there is compliance with its direction. In case of an attempt at fragmentation of an award of the kind allowed in this case, which had all the substantial quality of a variation of the Metal Trades Award, these powers could be used to prevent the fragmentation. To fail to do so borders on the denial of natural justice to those employers who are denied the opportunity to be involved in the proceedings to determine wages and conditions which, as I have said, will inevitably be later, and indeed almost automatically, made binding upon them.

[10]

In or about June 1971 a number of organizations of employees, including some of the respondents, served claims for improved wage rates and conditions of employment for all metal trade employees upon the Metal Trades Industry Association of Australia and Metal Industries Association, South Australia, both of which are organizations of employers and are among the present respondents. The claims were not in the form of a complete log, but comprised a list of proposed changes to wages and conditions. Some of the claims were expressed to be for the variation of existing wages and conditions, which must have been those prescribed by the Metal Trades Award. The two organizations of employers served a brief statement of the manner in which they claimed that existing conditions of employment should be altered. A finding was made of the existence of a dispute to which the unions concerned and the two organizations of employers mentioned were parties and this was later amended to include the Victorian Chamber of Manufactures and the Metal Industry Association of Tasmania, which are both organizations of employers and are the other respondents to this proceeding. Although the notification of the dispute stated that it was with respect (inter alia) to "Claims for increased wage rates and improved conditions of employment for all metal trades employees", the prosecutors were not served with these claims, were not informed that notification of the existence of the dispute had been given to the Commission, and were not made parties to the dispute. On the 2nd July 1971 Mr. Commissioner Hood made an award styled the Metal Industry Interim Award which dealt only with conditions of employment. On 16th July 1971 he varied that award to include rates of pay. The Metal Industry Interim Award adopted almost all the classifications listed in the Metal Trades Award 1952 as varied, but increased the rates. The reality of what had been done was recognized by the Commission itself when it said, in giving its reasons for decision in the Carpenters' Case [1] that the Metal Industry Interim Award had "in effect, as regards the parties to it, varied the Federal Metal Trades Award". The variation had been effected as regards employers and employees in private industry but not as regards the State or statutory bodies such as the prosecutors and their employees. A further variation to the Metal Industry Interim Award was made on the 7th September 1971.

[19]

The conclusions to be drawn from this recital of the facts are clear enough. From 1952 until 1971 a dispute between employees in the metal trades and their employers, as to the wages and conditions of employment, was regarded as one dispute, notwithstanding that some employers were in private industry and others were governmental or statutory bodies, and was resolved by one award, the Metal Trades Award, 1952. In 1971 that award was "fragmented", or "nominally divided" (to use expressions found in judgments of the Commission) so that the rates of pay and conditions of employees in the metal trades, if in private employment, were thenceforth governed by the Metal Industry Award, 1971 (as it is now called), and those of employees in the service of the government or of the statutory bodies were governed by the Metal Trades Award, 1952. Since that time, in practice, when variations of the Metal Industry Award have been made, corresponding variations to the Metal Trades Award have soon followed. There is ground for belief that in future the same thing may occur; the unions will seek to have any variation of the Metal Industry Award applied to the parties to the Metal Trades Award, and the attitude of the Commission in the past suggests that they are likely to succeed in this attempt. Although the decision on an application to vary the Metal Industry Award is likely to govern a subsequent application for a corresponding variation of the Metal Trades Award, the prosecutors, who will be bound by the latter variation, will not be heard upon the former, and crucial, application. The prosecutors may, it is true, be permitted to intervene, but that will not permit them to participate fully in the proceedings before the Commission, or even to be fully informed as to what is going on. When the time comes to vary the Metal Trades Award, they will be heard, but by that time the issue is likely to be only whether gains already achieved by some employees in the metal trades will flow on to the remaining employees.

[24]

It is clear that in 1971, and again in 1972 and 1974, the metal trades unions wished to obtain the same wages and conditions from all employers, although they adopted the expedient of first serving their claims on those in private industry, and when the dispute thus created had been settled, of then serving a claim on the governmental employers. It is hardly necessary to say that there were employers in more than one State in both of those categories. Again in 1975 there can be no doubt that the unions intended that any gains made for employees in private industry would flow on to those in governmental employment. The nature of the strike action that was taken assists this conclusion. The strikes, although not themselves constituting an industrial dispute, provided evidence of the existence of a dispute: cf. Caledonian Collieries Ltd. v. Australasian Coal and Shale Employees' Federation [No. 1] [6] ; Australian Federation of Air Pilots v. Flight Crew Officers Industrial Tribunal [7] . But the fact that the unions intended to press their claims against all employers did not mean that at any particular time there was a dispute between themselves and those employers upon whom they had not yet made demands. On the other hand the delivery of the formal demand on the employers in private industry, and the failure to comply with that demand, clearly did give rise to an industrial dispute within the principles expounded in the judgment of the court in Reg. v. Dunlop Rubber Australia Ltd.; Ex parte Federated Miscellaneous Workers' Union of Australia [8] . It was therefore within the jurisdiction of the Commission to proceed to attempt to settle that dispute, and for that purpose to hear the parties to it. The Commission would not have been deprived of the jurisdiction to settle one industrial dispute by the existence of another and wider dispute. There is no doubt that a dispute can exist without the formulation of a definite and clear cut demand followed by a definite and clear cut refusal: Reg. v. Portus; Ex parte McNeil [9] . It is however unnecessary to consider whether it was proved that in 1975 there was a dispute involving all employers in the metal trades. Even if such a dispute did exist it would not alter the fact that the prosecutors were not parties to dispute C No. 2278 of 1975.

At a glance

Court

Decision date

Before

Source

Judgment (45 paragraphs)

Parties