R v Findlay; Ex parte Victorian Chamber of Manufactures

[12]

There are, in my opinion, other grounds upon which the provision as to employment of unionists contained in this particular award is invalid. The demand contained in the log was a simple demand for compulsory unionism the terms of which have already been stated. The award which was actually made and which it is sought to justify by reference to the demand in the log was in the following terms: - "Subject to the provisions of the Re-establishment and Employment Act 1945, the following conditions shall apply in respect of employment in the industry: - (a) In employing and dismissing employees, an employer bound by the terms of this award shall give preference of employment to members of the Clothing and Allied Trades Union of Australia. (b) Without derogating from the generality or operation of sub-clause (a) hereof - (i) An employer who is bound by this award shall not employ any person who is not a member of the said Union if a person who - (1) works in the class of work in question, and (2) is a member of the said Union - is available for and willing to accept such employment. (ii) An employer who is bound by this award shall not (on the ground that no such person as is described in sub-paragraphs (1) and (2) of paragraph (i) hereof is available for and willing to accept the employment in question) employ any person who is not a member of the said Union unless the said employer first notifies the said Union by sending a registered letter or telegram addressed to the nearest office of the said Union in the State in which the employee is to be employed that no such person is available for and willing to accept such employment and the said Union does not within forty-eight hours after the receipt of the said notice notify to the said employer by sending by registered letter or telegram the name and address of a member of the said Union who works in the class of work in question and is available for and willing to accept such employment. (iii) An employer who is bound by this award shall not continue to employ any person who is not a member of the said union if - (1) the said Union sends notice by registered post or telegram to the said employer that such person is not a member of the said Union; and (2) such person does not become a member of the said Union within fourteen days from the receipt by the said employer of the said notice; and (3) a person who - (a) works in the class of work in which the said employee works; and (b) is a member of the said Union if available for and willing to accept such employment. (iv) An employer who is bound by this award shall not (on the ground that no such person as is described in sub-paragraph (3) of paragraph (iii) hereof is available for and willing to accept the employment in question) continue to employ an employee for more than fourteen days after the receipt of the notice referred to in paragraph (iii) hereof unless the said employer first notifies the said Union by registered letter or telegram addressed to the nearest office of the said Union in the State in which the said person is employed that no such person is available and willing as aforesaid and the said Union does not within fourteen days after the receipt of the said notice send notice to the said employer by registered letter or telegram of the name and address of a person described in sub-paragraph (3) of paragraph (iii) hereof who is available for and willing to accept such employment. (c) Any notice sent by registered post or telegram pursuant to any of the above sub-clauses shall be deemed to have been received at the time when it would have been received in the ordinary course of delivery by the Postmaster-General's Department."

[17]

Section 56 of the Act requires a commissioner, when directing that preference shall be given, to give it "in such manner and subject to such conditions as are specified in the order or award" and to such organizations or members thereof as are specified in the order or award. Paragraph (a) of clause 61 contains no provision as to the manner in which preference shall be given and no provisions which in any way specify any members to whom preference is to be given by defining any conditions compliance with which will entitle members to preference. It was argued that s. 56 did not require any manner or conditions to be specified or require members of an organization to be specified and that the section simply meant that if the commissioner chose he might specify a manner of giving preference and conditions of preference and members who were to get preference, but that he was not bound to do so. If a commissioner gives preference to an organization he must identify the organization, and in that case at least it is plain that the organization must be specified in the award in the sense of being made identifiable by reference to provisions in the award. In my opinion the nature of the subject matter shows that Parliament must be held to have required a manner of giving preference and conditions of preference also to be specified. An employer, let it be supposed, wants a skilled male tailor. There is such a man available who is a non-unionist, but there is a unionist office-boy who wants employment. Is the employer then bound under par. (a) to employ an office-boy whom he does not want because the office-boy is a unionist? An employer has too many male machinists, all of whom are unionists. Is he bound before dismissing any of them to dismiss female pressers who are not unionists? It is clear that clause (a) specifies no manner of giving preference whatever. The illustrations given - and there is no limit to the illustrations which could be given - show the necessity of specifying some manner and conditions of preference if any intelligible system of preference in employment is intended to be established. Accordingly, in my opinion, par. (a) of clause 61 is invalid.

[27]

To support the clause reliance is placed upon s. 56 (1) and (2) of the Commonwealth Conciliation and Arbitration Act 1904-1949. In R. v. Wallis; Ex parte Employers Association of Wool Selling Brokers [1] , this Court decided that s. 56 is the source of the power of conciliation commissioners to make any award or order with respect to a question how far employment is to be available to persons who are not members of an organization. It follows that to be valid a clause dealing with such a matter must conform with the requirements of s. 56. In the present case clause 61 is attacked as failing to fulfil this condition. But there is a prior question. Before the power given by s. 56 becomes exercisable there must be an industrial dispute of such a kind that a provision under s. 56 in the award is appropriate or relevant to its settlement. I am aware that in Waterside Workers' Federation of Australia v. Gilchrist, Watt & Sanderson Ltd. [2] , Starke J. expressed the view that s. 40 of the Act of 1904-1921 was a substantive grant of authority to the Arbitration Court in connection with industrial disputes, of which it has cognizance, whether preference has or has not been put in dispute by the parties or claimed in the proceedings before it. But I do not think that this view can be pressed so far as to make it unnecessary that an industrial dispute should exist and that the subject of the dispute should be one to which an award of preference may be related as appropriate, incidental or relevant to its settlement. In other words, behind the exercise of the power conferred now by s. 56, there must be a question at issue in a two-State industrial dispute which would support an award of preference. Now in the present case there was no dispute about preference in terms. A log of claims was delivered by the union containing a demand that no employer (subject to the provisions of any relevant Commonwealth law in force) should employ any person on work covered by the log unless such person were a financial member of the union. To this claim the employers did not accede.

R v Findlay; Ex parte Victorian Chamber of Manufactures - [1950] HCA 53 - HCA 1950 case summary — Zoe

At a glance

Court

Decision date

Before

Source

Judgment (60 paragraphs)

Parties