R v Conciliation and Arbitration Commission; Ex parte Victoria

This is a conclusion to which I have come with reluctance. I agree entirely with the views expressed by my brother Gibbs as to the unsatisfactory nature of the course taken by the Commission and the union in fragmenting the Metal Trades Award. The advantage to the unions of that course is obvious and, indeed, should have been obvious to those Commissioners who allowed it to happen. Equally the serious disadvantage to the prosecutors is obvious. The radical difference between being able to participate in the argument as to the appropriate terms and conditions of employment when they are initially being considered and being no more than able to discuss whether, having been determined, they are to flow on to a sector of the industry which has been excluded from participation in their fixation is too plain to need emphasis. An odd thing in the catalogue of events related in my brother's reason is that the "fragmented" award was called the Metal Industry Award, which quite obviously it was not: it did not extend to a very significant sector of the industry.

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.

But, agreeing as I do with my brother Gibbs' conclusion, this Court, in my opinion, has no warrant for making any of the orders sought by the prosecution.

This is the return of an order nisi. The prosecutors are Her Majesty the Queen in right of the State of Victoria, the Country Roads Board, Victoria, the Melbourne and Metropolitan Tramways Board, the Melbourne and Metropolitan Board of Works, the State Electricity Commission of Victoria and the Melbourne Harbor Trust. The order nisi is for a writ of mandamus commanding the Honourable Sir John Moore, the President of the Australian Conciliation and Arbitration Commission, to hear and determine according to law industrial dispute C No. 2278 of 1975 by dealing with that dispute as one to which the prosecutors are parties or alternatively for a writ of prohibition directed to the respondents prohibiting them from proceeding further in industrial dispute C No. 2278 without dealing with that dispute as one to which the prosecutors are parties. The respondents, beside the President, are thirteen unions registered under the Conciliation and Arbitration Act 1904 Cth as amended, as organizations of employees and four organizations of employers also registered under the Act.

On the 16th January 1952 Mr. Commissioner Galvin made an award in settlement of four industrial disputes which arose out of the service of logs of claim and letters of demand with which the recipients failed to comply. This award - the Metal Trades Award, 1952 - contains elaborate and detailed provision for the wages and conditions of service of employees in the engineering, metal working and fabricating industries. The prosecutors were parties to some of the disputes, as were some of the respondent unions. There were many other parties. The award has since undergone amendment from time to time. One important variation, made in 1959, related to margins. The State of Victoria was a party to the dispute that led to that variation and all the prosecutors were heard before it was made.

In 1968 a number of unions (including some of the respondents) served letters of demand and a log of claims on a number of employers and organizations of employers. The Attorney-General for the State of Victoria was one of the persons served. The log of claims was detailed, but it is enough to say that it sought a minimum weekly wage of $200 for adults, made up of $60 minimum basic wage and a minimum of $140 per week for margins. A finding was made that disputes existed, but no further proceeding pursuant to the Act has been taken that has been expressed to be in relation to those disputes and no award has been made that expressly refers to them.

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.

On the 1st September 1971 certain of the respondent unions served a claim on the State Electricity Commission of Victoria that the Metal Trades Award be varied, so far as it employees were concerned, by substituting for the existing rates of wages the rates now appearing in the Metal Industry Interim Award. This application was granted on the 1st October 1971 by Mr. Commissioner Lyttleton. On the 1st November 1971 the same Commissioner made an order varying the Metal Trades Award so as to apply the conditions of employment prescribed by the Metal Industry Interim Award to the employees of the State Electricity Commission. He said that it had become a fact of life that the wages and conditions in the Metal Industry Interim Award had gone to the vast majority of employees, and that he could do no more than agree that the conditions of the employees of the State Electricity Commission should, generally speaking, be the same as those in the Metal Industry Interim Award.

On the 6th October 1971, a number of the respondent unions applied for variation of the Metal Trades Award so as to apply to (inter alios) the employees of the State of Victoria and of the statutory bodies the rates of wages and conditions granted by the Metal Industry Interim Award. The application was opposed by the prosecutors but on the 21st October 1971 it was granted by Mr. Commissioner Hood so far as wage rates were concerned. Mr. Commissioner Hood dealt with the remainder of the application on the 1st March 1972 and held that the conditions of the Metal Industry Award 1971 (as it had now become by virtue of a consolidating order made on the 24th November, 1971) should apply to some but not all employees of the prosecutors. An appeal on behalf of the unions was brought to the Full Bench of the Commission and was allowed. In the course of their judgment the Members of the Commission said that the application was to "vary the Metal Trades Award, 1952 to bring it into line with its successor as regards private industry, viz., the Metal Industry Award, 1971" [2] . Great weight seems to have been attached, and no doubt rightly, to the necessity to provide, as far as possible, for uniformity throughout the industry: see s. 51 of the Act.

On the 11th October 1972 the rates of pay and conditions of employment prescribed in the Metal Industry Award, 1971 were varied. An application for variation of the Metal Trades Award, 1952 as to rates of pay prescribed for employees of the State of Victoria and of the statutory bodies other than the State Elecricity Commission of Victoria was made on the 17th October 1972. On the 17th November 1972 the State and the statutory bodies consented to the application, being influenced by a decision given by the Full Bench of the Commission two days earlier in another case [3] . The same course was taken in similar proceedings with regard to employees of the State Electricity Commission.

A further variation of the Metal Industry Award, 1971, granting increased rates of pay, was made by agreement on the 9th April 1974. It duly flowed on to employees of the prosecutors as a result of orders made by consent on the 27th May 1974 and on 22nd July 1974. In support of this claim a stopwork meeting of employees in the metal trades, including employees of the prosecutors, had been called by the unions and was in fact held on the 13th March 1974.

The consent variation made on the 9th April 1974 did not dispose of the whole of the wage claim, and an application for a further increase in the rates of pay in the metal trades industry came on before the President on the 2nd September 1974. The State of Victoria sought leave to intervene, but this was refused on the ground that the State had not attempted to intervene at an earlier stage of the proceedings. The rates of pay prescribed by the Metal Industry Award, 1971 were again increased and again the increase flowed on by consent to the employees of the prosecutors.

On the 19th March 1975 the respondent unions made further claims for increases in rates of pay and improvements in conditions of employment prescribed by the Metal Industry Award, 1971. The four respondent employer organizations notified the Commission of the existence of a dispute between themselves and the respondent unions. A finding of a dispute between these respective respondents was made by the President on the 9th April 1975. This is dispute C No. 2278 of 1975, with which we are concerned. Before making his finding the President held an informal conference. The prosecutors sought leave to appear, but this application was refused, on the ground that the conference was private and should be limited to the actual parties to the dispute.

In support of their claims some of the unions concerned called stopwork meetings which were held on the 10th April 1975, 11th April 1975 and 12th May 1975, and these meetings were attended by employees of the prosecutors. On the 14th April 1975 after the first two stopwork meetings (which were attended respectively by 2,650 and 5,250 employees of the prosecutors, out of a total of 8,000 employed by them in the metal trades) the prosecutors gave notice of a dispute between themselves and the respondent unions. The existence of a dispute was found; it was numbered C No. 959 of 1975. No relevant proceedings have been taken in the Commission in relation to that dispute.

On the 12th May 1975, matter C No. 2278 of 1975 came on for hearing before the President. The prosecutors were granted leave to intervene. In the course of the proceedings the President heard submissions that he should alter the finding of dispute made on the 9th April 1975 by including the prosecutors as parties. He held that the prosecutors were not parties to the dispute. Further proceedings in that dispute have been taken but the President has refused to allow the prosecutors to see the transcript of certain proceedings, the distribution of which has been limited to the parties to the dispute.

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.

I have already mentioned that the claims made by the unions in 1971, when the Metal Industry Interim Award was made, were such as to suggest that what was sought was in substance a variation of the wages and conditions prescribed by the Metal Trades Award. It is necessary to add that the Metal Industry Award, 1971, when made, contained detailed provisions as to matters which were not dealt with in the list of claims submitted in 1971, but which were in fact the subejct of the log of claims submitted in 1968. A few examples will suffice. The subject of apprenticeship is dealt with in detail in cl. 14 of the Metal Industry Award but is mentioned in the unions' list of claims only in cl. 2 (with regard to rates) and cl. 27 (with regard to indenture papers) and is not mentioned in the employers' cross-claims at all. The payment of fares when travelling is dealt with in cl. 27 of the Metal Industry Award but not in the claims or cross-claims. The Metal Industry Award, by cl. 22, lists a number of public holidays; the unions' list of claims, in cl. 11, mentions only "Melbourne Cup Day or appropriate day in other States" and the employers' log does not mention public holidays. The list of claims sought an award rate of $80 per week for base tradesmen. The effect of variations since made to the Metal Industry Award has cumulatively brought about the result that since 8th April 1974 the weekly rate for base tradesmen has exceeded that sum, although it is still within the limits of the claim made in 1968.

The prosecutors contend that they have been excluded from participation in arbitral proceedings in respect of a dispute to which they are parties. They submit that the Metal Industry Award is no more than a variation of the Metal Trades Award, and further, or in the alternative, that the dispute C No. 2278 of 1975 was one to which the prosecutors were in reality parties, although they had not been made so on paper.

There can be no doubt that if the prosecutors are in truth parties to the dispute which is described as C No. 2278 of 1975, they are entitled to the remedy which they seek. The members of the Commission are bound to act in accordance with the rules of natural justice: Reg. v. Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group [4] . They must therefore afford any party to a dispute a proper opportunity to be heard before making an order that affects him. Indeed it is inherent in the very notion of arbitration that there shall be a hearing of the disputants, and a procedure that produced an award without a proper hearing would be outside the Constitutional power: Australian Railways Union v. Victorian Railways Commissioners [5] .

1. (1969) 122 C.L.R. 546, at p. 552. 2. (1930) 44 C.L.R. 319, at pp. 384-385.

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.

1. (1930) 42 C.L.R. 527, at pp. 552-553. 2. (1968) 119 C.L.R. 16, at p. 35. 3. (1957) 97 C.L.R. 71, at pp. 80-81. 4. (1961) 105 C.L.R. 537.

The fact that the Metal Industry Award, 1971, may be described from one point of view as no more than a variation of the Metal Trades Award, 1952, does not mean that the Metal Industry Award did not arise out of a separate dispute or that the dispute with which we are now concerned was none the less an industrial dispute. There is no reason why a separate dispute should not develop between some of the parties to a wider dispute in settlement of which an award had been made. The fact (if it be a fact) that the Metal Industry Award goes beyond the ambit of the claims, the refusal of which was said to constitute the dispute which was settled by the making of that award, cannot assist the prosecutors whose position is governed by the Metal Trades Award. The Metal Industry Award was not intended to be made as a variation of the metal Trades Award; it was intended to take effect as a new award, made in settlement of a new dispute. Even if it goes beyond the ambit of the claims which gave rise to it (and I do not decide that it does), that is no justification for treating it, contrary to the facts, as intended to be made in settlement of the disputes which gave rise to the Metal Trades Award. Dispute C No. 2278 of 1975 can stand on its own feet - there was the formal delivery of the claims, and the refusal to comply with them, and there is no question in this case that the dispute was industrial and extended beyond one State. The other circumstances, which I have discussed, do not have the effect of converting what was a real industrial dispute into something less.

For these reasons I conclude that dispute C No. 2278 of 1975 was in law an industrial dispute and that in fact the prosecutors were not parties to it and therefore had no right to be heard before it was determined.

Nevertheless, it does not seem inappropriate to point out that the course that has been taken is open to the reproach that the prosecutors have had an inadequate opportunity to take part in resisting the demands made by the metal trades unions. If claims are first made against the employers in private industry, and the dispute is settled in proceedings to which the prosecutors are not parties, and similar demands are then made upon the prosecutors, the latter are placed in the position of having to resist the flow on of improved wages and conditions that have already been won for many employees in the metal trades. Resistance may appear, in some cases at least, to be little more than a formality, particularly in the light of s. 51 of the Act. The prosecutors may feel that they have been given the right to defend their position only after it has been undermined and rendered indefensible.

To say this is not to imply any criticism of the actions taken by the Commission in the past. It may be that the prosecutors were slow to counter the tactics by which they were met. It was only in 1975 that they did what they could have done earlier - they gave notice of a dispute between themselves and the respondent unions. The Commission is of course the master of its own procedure. If unions choose to fragment their claims so that what is in substance a claim against all employers is in the first instance levelled at some only, but the employers to whom the unions' claim is not formally directed themselves serve a demand and create a dispute, the Commission has power to hear both disputes together, or at least to hear both before a decision is given in one. For example, in 1975, the Commission could, if requested, have heard dispute C No. 959 of 1975 either at the same time as dispute C No. 2278 of 1975, or at least before that dispute was finally settled.

The whole case depends on whether the prosecutors were parties to dispute C No. 2278 of 1975. They were not, and therefore had no right to be heard. The order nisi should be discharged.

I am in agreement with the reasons for judgment of my brother Gibbs. The order nisi should be discharged.

I agree that the order nisi should be discharged. The submission that the prosecutors are entitled to be treated by the Commission as parties to proceedings C No. 2278 of 1975 has been put in two ways. First, it has been submitted that those proceedings are for variation and are relevantly in law proceedings for variation of the Metal Trades Award, to which the prosecutors are parties. Secondly, it is submitted that, if the proceedings C No. 2278 of 1975 are in respect of a fresh dispute, it is a dispute to which in fact the prosecutors are parties and that there can only be conciliation and arbitration of that dispute as a whole. In my opinion the proceedings in question are not strictly proceedings for variation of the Metal Trades Award. I agree with the reasons of Gibbs J. for this conclusion. I also agree that the prosecutors are not parties to the dispute reflected in the proceedings C No. 2278 of 1975.

I can express no opinion on the wisdom of the course which has been adopted in the Commission of having the two awards - Metal Trades and Metal Industry - instead of the one award both in respect of private employment and public employment. The exigencies which may have existed from the industrial situation then current and other relevant matters are not known to me.

In 1975, the President of the Australian Conciliation and Arbitration Commission granted the prosecutors, the State of Victoria and some of its instrumentalities, leave to intervene in dispute C No. 2278 of 1975. He held that the prosecutors were not parties to the dispute, refused to alter his findings to show that they were, allowed them to intervene to a limited extent only, and refused to allow them access to certain transcripts of the proceedings.

The prosecutors now seek a writ of mandamus to compel the President to deal with this dispute as one to which they are parties, or alternatively a writ to prohibit him from dealing with this dispute other than as one to which they are parties. They contend that, although no claim has been made against them and although it is not now sought to bind them by any award in relation to that dispute, they are really parties to it.

The dispute is related to the Metal Industry Award and it is proposed that it be settled by way of a variation to that award. The Metal Industry Interim Award is confined to private industry to the exclusion of the prosecutors who, along with most private employers, were parties to the Metal Trades Award [10] . The prosecutors contend that they are parties to dispute C No. 2278 of 1975 because the original dispute has been superseded by a dispute to which the prosecutors are parties (evidenced by stopwork meetings and other industrial action). On the facts, I am not satisfied that a wider dispute (if one exists) has superseded dispute C No. 2278 of 1975.

Disputes (with multiple and differing parties) have accumulated and there have been numerous settlements by variations as well as awards. The Commission has the unenviable task of maintaining the various proceedings, awards and variations in an orderly system. It has found that the prosecutors are not parties to dispute C No. 2278 of 1975.

Section 60 (2) of the Conciliation and Arbitration Act 1904, as amended, states:

(2) A determination or finding of the Commission upon a question as to the existence of an industrial dispute is, in all courts and for all purposes, conclusive and binding on all persons affected by that question.

If it is accepted that s. 60 is not applicable where it is claimed that there is no constitutional basis for the exercise of power by the Commission, the Commission's determination or finding should still be presumed valid, and full weight should be given to that presumption. The onus on the prosecutors to show that the Commission acted without jurisdiction will not be discharged except by the clearest proof. On the facts, I am not satisfied that the prosecutors were parties to the dispute in question.

The prosecutors claim that, even if they are not parties, they should not be effectively excluded from the proceedings and that to do so is a denial of natural justice, because the decision in these proceedings may in practice affect the decision on other proceedings to which they are parties. They contend that past experience shows that, if this dispute is settled by varying the Metal Industry Award to which they are not parties, it will be followed by an application for a similar variation of the Metal Trades Award to which they are parties, and that such an application is likely to succeed (because of the desirability of uniformity in two similar awards).

The Commission has discretion to deal with the dispute separately or together with another dispute (C No. 959 of 1975) in which similar claims are made against the prosecutors. It has discretion to allow the prosecutor to intervene in the dispute and, if it allows such intervention, to limit it. The Commission's arbitration function must often be carried out in very difficult circumstances. The presumption is that the Commission has acted regularly and in accordance with s. 40 (1) of the Act which places the procedure, subject to the Act and regulations, within the discretion of the Commission.

Parties to judicial or administrative proceedings are often affected by the outcome of other proceedings to which they are not party. They are affected in the sense that a ruling is made which, though not binding them, is in practice likely to be followed in the proceedings to which they are party. This is not a denial of natural justice. There is no moral or legal obligation on a trade union to widen its dispute with some employers by making the same claims on other employers. The Act aims to prevent and settle disputes, not to encourage them. The Commission also has a duty to settle disputes, not to encourage them. Anyone acquainted with industrial affairs will realize that the Commission may have had very sound reasons for limiting the intervention by non-disputants in the settlement of a dispute, for example, if it considered that such intervention would prolong the proceedings and reduce the chances of speedy settlement of the dispute.

Unlike the Commission, the High Court has no responsibility for the prevention and settlement of disputes. The legislature's expressed policy of preventing the High Court's interference with the Commission and its predecessors has been a permanent feature of the Act (see now s. 60). However, despite s. 60, the High Court has been able to interfere with the Commission, and has done so frequently.

The High Court has a strictly limited power in respect of the Commission and has no authority apart from this to give any direction on the conduct of the Commission's affairs by the President or other members. I am not satisfied that the President has acted other than in accordance with his statutory duties and discretions. On the contrary, the evidence shows that he has acted entirely in accordance with them.