R v Foster; Ex p Commonwealth Shipowners' Association

A writ of prohibition is sought in respect of an order which the learned judge of the Court of Conciliation and Arbitration sitting under Pt. XA of the Navigation Act 1912-1953 has made or proposes to make.

The order in question, when drawn up, will give formal expression to a decision which his Honour pronounced on 10th February 1956. The decision concerned the manning of ships which Australian shipowners might acquire abroad for employment on the Australian coast and of ships which Australian shipowners might dispose of from the Australian coast on terms requiring their delivery at some foreign port. His Honour decided that the shipowner must, when he so acquired a ship abroad, send an Australian crew to man the ship for its voyage to Australian waters and, when he so disposed of a ship, man it with an Australian crew for the voyage to the foreign port of delivery, of course then bringing the crew back to Australia. His Honour desired the shipowners and the industrial organizations concerned to attempt to agree upon the terms and conditions of a contract into which a crew sent abroad should enter and in default of their doing so directed that the terms and conditions should be settled by a board of reference.

No order has been drawn up and perhaps it is proper to regard its tenor as not yet completely decided upon. It should be added that a direction was given that the order should take effect forthwith (see s. 405P) and that its fixed term is one year.

The events which led to the decision begin with the arrival in Australian waters of M.V. Warringa manned with a crew from the United Kingdom which was paid off in Melbourne on 5th October 1955. The ship had been obtained by Huddart Parker Ltd. from a Scottish shipyard and had been built for the Australian coastal trade. She was to be employed on the Tasmanian run and she was to sail from Melbourne for Hobart with general cargo on 25th October 1955. It was, however, found impossible to obtain a full crew, although on 5th October 1955 the notification, prescribed by the Seamen's Award, stating the ratings required, was given at the office of the Seamen's Union and at that of the Shipping Master. After some six days, the Commonwealth Steamship Owners' Association, an organization of employers, informed the learned judge by telegram that seamen would not offer for Warringa, adding that there were indications that the union had banned the ship because on her voyage to Australia she had been manned by a crew from Great Britain. The telegram requested the judge to order the union to man the ship. The award contains a provision forbidding the union in any way, whether directly or indirectly, to be a party to or concerned in any strike ban or limitation or restriction upon the performance of work upon or in accordance with the terms and conditions prescribed by the award. The learned judge treated the telegram as a notification of the existence of an industrial dispute, or of an industrial situation likely to give rise to an industrial dispute, given in pursuance of s. 14 (3) of the Conciliation and Arbitration Act 1904-1955, apparently regarding that section as incorporated so to speak in Pt. XA of the Navigation Act 1912-1953 by the operation of s. 405M of the latter Act. As a result of the steps which accordingly his Honour took a board of reference sat on 12th and 19th October to deal with the matter and the learned judge himself on 28th October presided over a conference to which he had summoned representatives of a number of unions concerned.

At this conference there was a discussion of the course or courses taken by shipowners in manning ships which of late years they had brought from abroad to the Australian coast. His Honour gave a direction that Warringa should be manned and a full crew was obtained for her about 3rd November. The conference was resumed on 17th November when a number of persons were heard. His Honour said that he had found that the dispute not only affected Warringa but affected a principle, namely who shall man ships built or bought overseas on their voyage to Australia and that it extended to the problem who shall man ships sold for delivery to overseas ports. As the parties had failed to settle the dispute, it fell to the court to deal with it. The learned judge accordingly referred the matter to the court. At the conclusion of the hearing his Honour reserved his decision and on 19th February 1956 he pronounced the decision which is the subject of the order nisi for a writ of prohibition. The power of the Court of Conciliation and Arbitration to make any such order as that intended must be found, if at all, in ss. 405D, E and M of the Navigation Act and of these ss. 405E and M are no more than ancillary to s. 405D. That section consists of two sub-sections which are as follows: - "(1) the Court has power to prevent or settle industrial disputes by conciliation or arbitration. (2) The Court has power to hear and determine industrial matters submitted to it in so far as those matters relate to trade and commerce with other countries or among the States or in a Territory of the Commonwealth, whether or not an industrial dispute exists in relation to those matters." The expression "industrial dispute" is defined by s. 405A to mean: "(a) a dispute (including a threatened, impending or probable dispute) as to industrial matters which extends beyond the limits of any one State; and (b) a situation which is likely to give rise to a dispute as to industrial matters which so extends". When these definitions are read into s. 405D and that section, thus amplified, is applied to the facts, which have been summarized in the foregoing, it will be found that the power will not cover the order his Honour intends unless an "industrial matter" is involved. But the expression "industrial matter" is itself defined by s. 405A. Unless the contrary intention appears then in Pt. XA"industrial matters" means all matters in relation to the salaries wages rates of pay or other terms or conditions of service or employment of masters pilots or seamen. No limitation is involved in the word "seaman". It covers every person employed or engaged in any capacity on board a ship except masters, pilots and apprentices and persons temporarily employed on the ship in port: s. 6. But how can his Honour's order or the subject matter with which it deals be brought within the operative words of the definition of "industrial matters"? Certainly there is no question of "salary, wages, rates of pay". Can it possibly be said that other terms or conditions of service or employment are drawn in question? These expressions should no doubt be given a wide and general and not a limited or very specific meaning and application. But the subject under his Honour's consideration was not what terms and conditions should govern the employment or service of seamen, but whether the shipowner should be at liberty to sign on an overseas crew in a newly acquired ship or in an old one disposed of to a foreign owner. It seems therefore, at all events on the surface, to be undeniable that an order imposing an obligation of such a kind is outside the words.

Mr. Phillips, however, for the unions concerned, puts forward an answer to this position which depends upon par. (b) of the definition of industrial dispute in s. 405A and goes to the nature and cause of the refusal of the seamen to man Warringa and the likelihood of the same thing occurring again. Paragraph (b) of s. 405A includes in the conception of industrial dispute any situation which is likely to give rise to a dispute as to industrial matters which extends (that is would extend) beyond the limits of any one State. The refusal to man Warringa arose, it was said, out of a "situation", namely the possibility of shipowners bringing a new ship from abroad manned by a crew from the country where it was acquired or whence it sailed, and the fact that shipowners in the given case had actually done so. It was a situation, so it was argued, that was likely to give rise in the future to another or other refusals to man ships or to some kindred industrial action. Indeed it was likely to do so again very soon; for there was another ship arriving in similar circumstances. A refusal to man a ship, it was said, is an industrial dispute. In the case of Warringa it was a refusal to provide men which was maintained in Melbourne, Sydney and Adelaide and therefore it was a dispute extending beyond the limits of one State. It had relation to terms and conditions of employment and in particular it involved a ban of the kind dealt with by the Seamen's Award, cl. 83.

There are many difficulties about the foregoing argument, but it is enough to point out that it treats the measures taken to enforce the express or implied demand that Australian shipowners shall not use crews from abroad to bring new ships into the coastal trade or send old ships out of it as if the measures in themselves formed the dispute or disagreement or provided its subject matter. In other words it confuses with the demand itself the industrial action taken to enforce the demand. The measures taken may include bans and refusals to offer for employment, but these do not constitute a disagreement or dispute; they are but the consequences of the real dispute which affords the subject matter of the order. They imply no actual threatened, impending or probable disagreement about salaries, wages, rates of pay or other terms or conditions of employment. The conflict, disagreement or want of accord is about the course the shipowners have taken and may again take in manning newly acquired or newly disposed of ships. Unfortunately for the argument that dispute is not about an industrial matter as defined.

The reasons which have already been given suffice to dispose of the case and it is better not to go beyond them.

The order nisi should be made absolute for a writ of prohibition prohibiting further proceedings with or upon the order or proposed order described in the order nisi.

That order was not the result of a direct or express application of the unions concerned, who were named in the order nisi as parties to be served. It is a case in which it seems proper to make no order as to costs.