R v Darling Island Stevedoring & Lighterage Co Ltd [1938] HCA 44;

R v Darling Island Stevedoring & Lighterage Co Ltd [1938] HCA 44; - HCA 1938 case summary — Zoe

[21]

It therefore bound the parties and was binding on 10th November, when the alleged offence was committed. It has been argued that the decision related only to the s.s. Cambridge, but a perusal of the transcript of the proceedings before the board of reference shows that the decision was a decision on the general question as to whether the loading of thirty-five bars in a sling made excessive demands upon the men. One of the employers' representatives on the board sought to confine the inquiry to the particular case of the s.s. Cambridge, saying: "The matter before the board is whether the men doing that work yesterday were subjected to undue strain, anything else is a side issue." But the reply of one of the employees' representatives was: "I was talking about the nature of the work in general." In the discussion between members of the board reference was made to a number of ships and to the number of bars loaded in slings in each case. The contention for the union was not based upon any special circumstances peculiar to the s.s. Cambridge. It was a contention that the loading of as many as thirty-five bars in a sling necessarily and in itself involved undue strain. When the board met to inquire into the same complaint with respect to the s.s. Westmoreland the chairman opened the proceedings by referring to "the conclusions arrived at with respect to the s.s. Cambridge." He said that he was "still of the opinion that without special loading statistics proving that greater effort is being asked of the men now than heretofore, that thirty-five bars per trolley is not such as to cause undue strain." This restatement of the rule laid down on the occasion of the controversy with respect to the s.s. Cambridge was not challenged by any member of the board; and, in my opinion, it correctly stated what had been decided on the former occasion. Thus, at the time of the prosecution there was a decision of the board that the loading of thirty-five bars in a sling did not involve undue strain. A decision of the board of reference should be looked at from a practical point of view in relation to the purposes of the award. It is, I think, clearly intended that the board of reference should give general decisions which should bind the parties until set aside upon appeal, and not that the board should merely decide particular cases which have arisen in the past for the purpose of determining whether or not undue strain had been involved in a particular order in relation to a particular loading or unloading from a particular ship, but without laying down any rules for future conduct. The requirement that the decision should be acted on shows that it is intended that the board should lay down such rules by its decisions.

[41]

The award said to have been disobeyed is that governing the employment of waterside workers, and the breaches alleged were that the appellants, being employed by the respondent, refused to carry out the reasonable instructions given on behalf of the respondent as to the quantity of cargo to be placed in slings. The men were loading ingots of lead into a ship called the s.s. Westmoreland on 10th November 1937 and refused to place more than thirty at a time in the ship's slings. It appears that for many years before September 1937 it had been customary to make up slings of thirty-five similar ingots. The work, however, is said to be regarded with disfavour by waterside workers and about that time a stand was taken by them, or some of them, for a reduction of the number of ingots to thirty, or perhaps for the increase of the number of men in a gang engaged in loading lead. A ship called the s.s. Cambridge was taking lead on board on 1st September 1937 and gangs of six men refused to place in the slings more than thirty ingots at a time. A board of reference was summoned pursuant to a provision contained in the award. It attended at the wharf and, upon the following day, deliberated and gave its decision. According to the record of its proceedings, the chairman said that the matter for the board's consideration was a claim by the Waterside Workers' Federation for extra men to handle the lead bars at the wharf where the s.s. Cambridge was loading. The chairman decided against this claim, stating it to be his opinion that the work was "not more unduly strenuous than hitherto", and that no attempt had been made by the employers in loading the ship unduly to harass the men. A board of reference is composed of an equal number of representatives of employers and of employees and an independent chairman, but, owing to the absence of an employers' representative from the meeting, the chairman's decision meant, strictly, that there was an equal division of opinion. The award provides that if workmen complain that through insufficiency of the number of men engaged they are subject to undue strain and the matter is not settled, it shall be referred to a board of reference; and that, pending the decision of the board, the men shall go on working as the employer directs. The board may, if it gives its decision before the job is finished, require that additional men shall be put on, and, in any case, if it decides that the number was insufficient, the men who were actually engaged are to receive for the work they have done a proportion of the wages which would have been payable to the additional men, had they been put on in the first instance, increased by a further ten per cent. It would seem that the board of reference summoned for the ship Cambridge conceived itself to be dealing with a claim under this provision. Notwithstanding the result of the reference over the s.s. Cambridge, a gang of six, of which the appellants were members, refused to load more than thirty ingots at a time into slings for the s.s. Westmoreland. Another board of reference was summoned and five days later at the conclusion of a meeting where all were present and the matter was again discussed, the chairman gave, so to speak, an interim direction or determination that the employers' instructions to handle thirty-five bars of lead at a time should be complied with and deferred his final decision for future cargoes until further materials were furnished. Needless to say, there was an equal division between employers' and employees' representatives as such. This determination or direction of the board of reference summoned for the s.s. Westmoreland, or of its chairman, if the direction be regarded as his, appears to me to be irrelevant to the proceedings against the appellants. It took place after their alleged offence was completed. A board of reference cannot be armed with authority to determine a question belonging to the judicial power of the Commonwealth, as, for instance, whether an offence or breach of an award was committed (See the Builders' Labourers' Case[5] and the Tramways Case [No. 2][6]). And it cannot, I think, be authorized conclusively to determine ex post facto that a given fact or matter of fact forming an ingredient in an offence occurred or existed. There is no provision making the board's opinion admissible as evidentiary of any matters to which it is directed. In any case, the board's decision on that occasion appears to amount only to an ad interim direction. I think, therefore, that the proceedings of the board of reference summoned in relation to the s.s. Westmoreland should be disregarded for the purpose of deciding whether the charge against the appellants was substantiated.

[45]

In the present case the objection was to a direction to continue a practice which had prevailed for many years. The ground of the objection was that the practice imposed an undue strain and the instrument governing the employment contained a special method of dealing with complaints of that class. Further, I think that the failure of the board of reference to give effect to the claim made in connection with the loading of the s.s. Cambridge was a relevant evidentiary circumstance proper to be considered upon the question whether the subsequent order of the employers was a reasonable instruction. An order given in the light of the board's refusal to interfere with the practice could not be held so unreasonable as to justify disobedience, unless the circumstances were very exceptional. These are all matters which, in my opinion, make it impossible to hold that the instruction to place thirty-five bars of lead in the sling was unreasonable. Unfortunately, the magistrate held that the later decision of the board of reference called together in consequence of objection in the loading of the s.s. Westmoreland was admissible and conclusive, in my opinion, quite erroneously. He also rejected medical evidence of the effect produced on a man who lifted so many bars in quick succession. In strictness I think that this evidence was not inadmissible. Before it was rejected much of the medical testimony offered was given, and we know its general character. As the magistrate gave no finding for himself on the question of reasonableness and rejected evidence in strictness relevant to that question, the appellants have a prima facie ground of appeal. But I think that, upon a proper understanding of the award, a finding that the instruction was unreasonable could not be sustained. The rejected medical opinion could have made no difference in the result. It could not do so because it provides considerations which under the terms of the award should primarily be addressed to a board of reference, and because medical disapproval could not overcome the effect, upon such a question, of the fact that the instruction followed a long-standing practice, a practice, moreover, supported by the result of the previous reference to a board.

[48]

On the relevant occasion men working in pairs were loading the s.s. Westmoreland. They were lifting bars of lead with their hands on to trolleys. The bars weighed 90 lbs. each and were stacked in heaps of fifty, each heap being ten bars high. The bars were two feet long, four inches wide and four inches deep. The respondent's supervisor said: - "One man took one bar and placed it on the trolley where a sling was in position ... The trolley was drawn to the ship's side by a motor. The men make up the sling. The tow motor drives the motor and this draws the trolley from the stack to the ship. Then the sling is hooked on." It appears that the men who were doing this work were instructed to "make up" each sling with thirty-five bars in the time they were taking to "make up" the sling with thirty bars. This witness said that the conditions under which this kind of cargo is loaded differ at different wharves, that "some companies load thirty bars to the sling," and that the men have "a breather waiting for the tow motor to come there for the trolley"; and he and the respondent's foreman said that for a period of five years to September 1937 the respondent's rule was to load thirty-five bars to each trolley, and that on 10th November the conditions under which the work was being done were the same as those which had existed during that time. The respondent's manager also deposed that the practice for ten years prior to September 1937 was for two men to put thirty-five bars in each sling. It appears that the practice was interrupted by the decision which the men made about that time not to stack more than thirty bars on to each sling. The respondent's foreman stevedore said that he knew that men had been injured "through lead toppling on them," although the injured would not be numerous, and that he had heard of one or two cases of men collapsing from exhaustion in lifting bars of lead of the kind in question into slings. The respondent's manager, however, said that he had not heard of any accident in loading or unloading lead, and that "if the sling is properly made up and properly slung, there is no danger."

[50]

In defence the appellants led evidence to show that lifting as many as thirty-five bars of the weight and size of those which they were loading into each sling imposed an undue strain on them and was injurious to their health and dangerous. Proof of this contention would rebut the prima facie proof of the reasonableness of the employer's instructions, for it could not be said that the manner of loading in question, although sanctioned by usage, was reasonable if it caused injury to the men's health and exhausted their strength to such a degree that they could not make up safe loads of thirty-five bars to a sling. In proof of this contention the first witness called was the vigilance officer of the appellants' union, but, upon objection being taken to his evidence, the magistrate ruled that the board of reference prescribed by the award was "the proper tribunal to determine the question of undue strain between the workers and the employers." The witness was allowed, however, to give evidence based on his personal experience. He said that it was unduly strenuous to load thirty-five bars to the sling and that in doing so the men became exhausted and could not make up the slings in a safe way. The appellant Halliday, an experienced waterside worker, said that it was dangerous to put thirty-five bars of lead into each sling because a man could not sustain the effort necessary to lift that number into each sling without becoming so tired that he could not safely stack the load in the sling. The age of this witness was fifty-nine years. It was seven years since he last had handled lead and on that occasion he had jammed his fingers. He said: "I know my strength would not allow me to do more than thirty." Two members of the Waterside Workers' Federation gave evidence based on their own personal experience. One of these, a witness Wills, said: - "I have been employed by the company" (the respondent) "loading lead from time to time. I know the method of loading. Recently I have loaded thirty-five bars on to one truck. With a load of thirty one gets a compact load, six bars by five bars. It will keep in position better than a thirty-five load. To lift thirty-five one has another tier. The extra load and height make the load more liable to fall over. Then there is a risk of injury to one of the two men loading - I have had a broken finger once through loading thirty-five bars. When putting one bar down the top one on the next tier came over and nipped the finger and broke it. Some tiers are firm, some are not. The higher the tiers the more the risk of falling. There is no bind and no tie in them. On some trucks the foundation is all right; others are not so good. The trucks are used whilst they will go. The beds of the trucks vary a good deal. This has an effect on the load at the top. By the time I get my share of thirty bars into the truck the tow motor is there to take it away. It takes me all my time to do thirty. My arms, back and wind are gone when I put the top on. It is not usual to get a breather. If one gets a fast-working ship it lessens the time between slings. The spells that I have had on lead have been of short duration. Were I asked to load thirty-five to a truck right through the tow motor would be waiting whilst the last of the load went on. There would be no spell whatever." The other member of the same union had loaded lead from time to time. This witness said: - "I have loaded thirty-five bars to a sling. The last time was twelve months ago. A thirty-five bar load is not safe. The sling does not jam in lots of cases. The men loading on the wharf - it is dangerous to their legs and hands, for the bars fall off the truck onto the wharf. It is dangerous because of the extra five. There are six tiers to the truck. They won't lay flush or jam. When you put the extra tier in then the others get bent and the load is more liable to fall. There is more room without the extra tier. I have broken my toe. I have jammed my fingers. I had five tiers seven long and when I placed the last bar on the tier collapsed. The tiers are loaded differently by different men. A load six by five is compact, reasonable and safe. A thirty load is safer than a thirty-five bar load. The physical effect of lifting thirty-five bars is too much for any man." The appellant Halliday was examined by Dr. August Lyle Buchanan, who is a Bachelor of Medicine and a Master of Surgery of the Sydney University, a Fellow of the Royal Colleges of Surgeons of London and Edinburgh, and a Fellow of the Royal Australian College of Surgeons For the purposes of such examination the appellant lifted ingots of lead in the doctor's surgery under conditions which would provide the same degree of strain on him as that which would be produced by loading the bars of lead into the s.s. Westmoreland on the relevant occasion. Dr. Buchanan gave the following evidence: - "Before the test I examined the man especially his heart and his blood pressure and his pulse. I tested his heart at intervals after the test was completed until it returned approximately to normal. Halliday's test started at 1.31 minutes 30 seconds and finished at 1.33 p.m. Halliday proved to have a regular heart on examination before the test with a standing resting pulse of 88 per minute. The apex beat and blood pressure were normal, but he had numerous extra systoles. The test finished at 1.33 p.m. Thirty seconds later, 1.33.30, his pulse was fast and hard to count. As far as I could judge it was 126 to the minute. One minute later, at 1.34.30, it was more regular and easier to count and I made 132 to the minute. At 1.35.30 it had fallen to 112. At 1.37 it had fallen to 92. This was a little above normal but close to it. At 1.39 p.m. it was 86. His pulse after the test took 6 minutes to return completely to normal and four minutes to return approximately to normal. I noted that he had some pyrrhœa. His heart condition returned to normal in six minutes. It should return in two minutes. This case took four minutes to be approximately normal and six minutes to be absolutely normal. This was after he lifted the bar fifteen times. I got him to manipulate the bar a further time. I did not give him a continuous lift of seventeen or eighteen bars."

[54]

The first pronouncement was made on 2nd September when in the words of the chairman of the board it was called together "for the purpose of investigating a claim by the Waterside Workers' Federation for extra men to handle the lead bars at No. 21 Wharf, Jones Bay." The ship in question was the s.s. Cambridge. The pronouncement was as follows: "I am of the opinion that the work is not more unduly strenuous than hitherto, that no attempt was made by the employers in the loading of this ship to unduly harass the men, and I therefore decide that there is no claim." The second pronouncement was made subsequent to breach of the award alleged to have been committed by the appellants. The pronouncement was expressed to have been made on the "vexed question of loading lead bars s.s. Westmoreland," and in the course of making the pronouncement the chairman of the board said: - "On this matter on 2nd September I inspected very closely the loading of lead bars and I gave a decision then. I have since inspected the loading of lead bars of the same weight, viz., approximately 90 lbs, ex s.s. Westmoreland. My careful observations at that inspection force me to rely on the same conclusions arrived at with respect to the s.s. Cambridge. It did not appear to me that the employers were calling for greater effort and speed for this ship, consequently my decision that thirty-five bars per trolley does not cause undue strain still stands. I am still of the opinion that, without special loading statistics proving that greater effort is being asked of the men now than heretofore, thirty-five bars per trolley is not such as to cause undue strain. ... It is a difficult matter. I say quite frankly here that at the rate I saw the men working I could not reasonably say that it was causing them undue strain. They had quite a lot of rest period. I observed it very closely. The only difficulty I had was this, if a man were called upon to work very long hours on this job then there may be undue strain, but as it is if he only worked in the ordinary daily hours or perhaps up to ten o'clock at night, then, with the rest periods I observed, I cannot possibly say that there was undue strain. ... I see no reason why it should not be stood over for any medical evidence that can be brought before the board. ... This is a vexed question which will have to be investigated in some way. I would like to have before me the figures for the loading of the respective ships with this cargo, so as to inform my own mind whether or not the employers are endeavouring to increase the tonnage per hour loaded, but I repeat that the work I saw being done and the manner in which it was being done, was not work which I could possibly say was causing undue strain. As soon as the medical report is available I would be pleased to receive a copy. So that the claim of the union may be fully investigated I want the employers' representatives to submit particulars of tons per gang per hour or per ship of all consignments of lead bars since 1st January 1937. When these particulars are available they can be discussed as to future cargoes. In the meantime the employers' instructions that thirty-five bars be placed on each trolley should be carried out. The board by a majority so decides."

[58]

The reasonableness of instructions given by an employer to a worker may turn upon questions other than those which by the award are placed within the competence of the board of reference. The court before which a complaint is brought for disobedience to the instructions would have to decide such a question for itself, and, in my opinion, it is also for the court to decide a question going to the reasonableness of the instructions which is within the competence of the board of reference but on which it has not made an admissible and relevant pronouncement. It is not the intention of the award to limit the cases in which a worker should be deemed to have committed a breach of the award by refusing to carry out his employer's instructions, to cases in which the board of reference has passed upon a question within its competence going to the reasonableness of such instructions and has determined them to be reasonable. Where the board of reference has made no definitive statement on such a question, the court must decide for itself on evidence of all the relevant circumstances before it can determine whether a breach of the award has been committed by a worker charged with disobedience to the reasonable instructions of his employer. In the present cases there is no definitive statement by the board, whereby the court could adjudge that the appellants on the relevant occasion would not have been subjected to undue strain in carrying out the employer's instructions. Accordingly, the whole of the evidence adduced on behalf of the appellants must be taken into consideration to determine whether the instructions which they disobeyed were reasonable. This evidence included that of Dr. Buchanan. What was heard of his evidence was declared by the magistrate inadmissible, and further evidence from him was rejected. In my opinion not only the evidence which he gave but also the evidence (as the questions which were disallowed would indicate) which he was proposing to give was relevant and admissible upon the question of undue strain. The rejection of this evidence resulted in a mistrial and would be a sufficient ground upon which to set aside the magistrate's order imposing the penalties on the appellants. But, in any case, having regard to the weight of the evidence adduced on their behalf, I am not satisfied that the employer's instructions were proved to be reasonable.

At a glance

Court

Decision date

Before

Source

Judgment (70 paragraphs)

R v Darling Island Stevedoring & Lighterage Co Ltd [1938] HCA 44; (1938) 60 CLR 601 (1 September 1938)

Parties

Legislation Cited (1)

Cases Cited (1)