R v Galvin; Ex parte Amalgamated Engineering Union, Australian Section

The order nisi was made on 23rd January 1952 on an application made some time before and stood over for a further affidavit ultimately made on 18th January 1952. In the meantime on 16th January 1952 the conciliation commissioner promulgated a new award, which had been under consideration. That award came into force as on and from the first pay period to commence in February 1952 and thereupon the previous award, varied by the order which it was sought to prohibit, went out of operation. It had been maintained in force by the provisions of s. 48 (2) of the Conciliation and Arbitration Act 1904-1951 only "until a new award has been made", an event which may be considered to have taken place as early as 16th January but certainly no later than the first pay period in February 1952.

Inasmuch as the award containing the provisions placed therein by the order of variation under attack had no longer any prospective operation this Court on the return of the order nisi declined to entertain further the application for a writ of prohibition in respect of the spent order.

But it appeared that the new award included a provision similar to that made in the order of variation which was the subject of attack. The Court therefore treated the matter as an application for an order absolute in the first instance for a writ of prohibition in respect of the provision of that award. The necessary parties being before the Court and ready to proceed, the question whether such a prohibition should issue was then argued.

The provision of the award which is attacked forms part of cl. 19, a clause headed "Contract of Employment". The provision is par. (ba) and it falls under a subheading "Prohibition of Bans Limitations and Restrictions". Paragraph (ba) is as follows: - (i) No organization party to this award shall in any way, whether directly or indirectly, be a party to or concerned in any ban, limitation or restriction upon the performance of work in accordance with this award. (ii) An organization shall be deemed to commit a new and separate breach of the above sub-clause on each and every day in which it is directly or indirectly a party to such ban, limitation or restriction. The first objection made to the provision is that the subject with which it deals forms part of a field now occupied by s. 78 of the Conciliation and Arbitration Act 1904-1951, a section enacted by the Conciliation and Arbitration (No. 2) Act 1951. It is said that the section is meant as an exhaustive statement of what the liabilities are to be for seeking by advice encouragement or incitement, to induce men to refrain from work under an award or to make default in compliance with the award or limit work. The contention is that the provision of the award is inconsistent with s. 78 because it assumes to deal with a subject on which the section has laid down the law exhaustively. The section relates to the conduct of officers, servants, agents and members of committees of organizations or branches of organizations. It makes it an offence punishable by fine not exceeding £100 for such a person to advise, encourage or incite a member bound by an award to adopt any of certain courses. These courses it is unnecessary fully to enumerate. It is enough to say that they include refraining from accepting employment offering for work or working in accordance with an award, hindering other members from doing so, making default in complying with an award, retarding, obstructing or limiting the progress of work, and adopting practices limiting output or production. An offender is to be prosecuted in courts other than the Arbitration Court and a specific defence is provided if there be reasonable grounds for the conduct charged unrelated to the terms and conditions of employment prescribed by the award or arising out of an employer's failure or proposed failure to observe the award.

The argument fails, if for no other reason, because s. 78 does not deal with the liability of organizations as such at all, but is confined to individuals who are officers, servants or agents or members of committees of organizations and of branches. There is nothing in s. 78 to indicate any legislative intention that no responsibility should be placed on organizations in relation to restrictions on the performance of work in accordance with an award. The section is entirely consistent with the view that the legislature intended that question to be left completely to the arbitrator, if he chose to deal with it, where having regard to the ambit of the dispute it was within his authority to do so.

The second ground upon which the provision contained in par. (ba) of cl. 19 of the award was said to be outside the authority of the conciliation commissioner is that it goes beyond any matter forming part of the industrial dispute before him.

The dispute arises from a log of claims made by the respondent the Metal Trades Employers' Association, an organization of employers, and served upon (inter alios) the prosecutor, the Amalgamated Engineering Union, Australian Section, an organization of employees. Clause 28 of this log contained a number of paragraphs dealing with conduct tending to prevent hinder or delay the working of factories or machines or the carrying on of the work of any factory or undertaking. Paragraph (b) made the relevant claim, which is as follows: - (b) No organization shall for the purpose of enforcing any demand concerning any matter expressly provided for in this log upon any employer whatsoever who is a party to this log, order or incite or encourage any of its members or permit any of its officers to do or omit to do anything in connection with the work to be done by any employee in the course of employment covered by this log so as to tend to prevent or delay or hinder the working or using of any factory, shop, machine or plant or the carrying on by any such employer as aforesaid of the work of any factory shop or job or undertaking.

This claim is directed against the use by the organization of its authority or influence to stop or hinder work by its members. It brings into the ambit of the dispute the question of the course to be taken on that subject. But the prosecutor says that it does so only in a limited way. It is limited to cases where the order, incitement or encouragement of the organization is actuated by the purpose of enforcing on an employer any demand concerning any matter expressly provided for in the log. The contention is that the provision contained in par. (ba) of cl. 19 of the award disregards this limitation and therefore deals with something different in kind.

An award cannot give a form of relief that is not relevant to a matter in dispute, that is not reasonably incidental or appropriate to the settlement of that part of the dispute and that has no natural or rational tendency to settle the particular question in dispute. But the award need not adhere to the remedy or relief proposed or claimed in the course of the dispute or in a demand forming a source of the dispute, so long as the provision in the award is related to the dispute or its settlement in the manner stated.

The principle is formulated by s. 42 of the Conciliation and Arbitration Act 1904-1951, although in language which may possibly be read too widely because of the words "which the court or commissioner thinks necessary or expedient for the purpose of preventing or settling the dispute or of preventing further disputes". These words might be taken to allow a more remote or tenuous connection with the dispute than is requisite as a matter of objective fact.

But in the present case the question is whether by dropping the expression of purpose the commissioner has given relief of a kind different in substance from that claimed. To drop the reference to purpose was no doubt wise, because an issue as to the purpose of a corporate body is one which ought not to be set as a criterion of liability, so troublesome and uncertain is the ascertainment of the fact likely to be.

The substantial grievance forming the basis of the claim in the log was the incitement or encouragement by an organization of conduct prejudicial to regular work in accordance with the terms and conditions sought.

The clause in the log described in terms chosen by the claimants the precise relief considered sufficient to deal with the grievance. The award chooses another form of relief in some ways wider, in some ways narrower. But when the matter is examined and the distinction is observed between the substantive question and the precise form of relief, what the award does appears sufficiently relevant to the dispute arising from the claim, and to be reasonably incidental to its settlement.

The order nisi should be discharged and the application for an order absolute in the first instance for prohibition refused. The prosecutor should pay the costs of the order nisi and of the application.

The Amalgamated Engineering Union and the Metal Trades Employers' Association and other registered industrial organizations of employees and employers are parties to an award made on 16th January 1952 by the conciliation commissioner, Mr. Galvin, who is a party in the present proceedings in this Court. The award purports to be made in settlement of industrial disputes between the parties to it. These disputes resulted from the rejection of logs of claims. One of these logs was served by the Amalgamated Engineering Union upon the Metal Trade Employers' Association and rejected by it. Another log was served by the same organization of employers upon the Amalgamated Engineering Union and rejected by it. The logs covered rates of pay, hours of work and conditions of employment. The present award contains provisions regulating these matters, and a clause numbered 19 (ba). The Amalgamated Engineering Union in these proceedings challenges only this clause. It is in these terms: - "(i) No organization party to this award shall in any way, whether directly or indirectly, be a party to or concerned in any ban, limitation or restriction upon the performance of work in accordance with this award. (ii) An organization shall be deemed to commit a new and separate breach of the above sub-clause on each and every day in which it is directly or indirectly a party to such ban, limitation or restriction."

The clause is limited to an organization. If the Amalgamated Engineering Union broke the prohibition imposed upon it by the clause, it would be liable to the penalty provided in the Conciliation and Arbitration Act 1904-1951 for a breach of an award. The conduct prohibited by the award is also prohibited by s. 78 of the Act, but this section does not apply to an organization. It is limited to the officials of an organization, who are therein enumerated. As the section does not extend to the organization itself, the Amalgamated Engineering Union would not be liable to the penalty provided in s. 78, if it were guilty of any conduct to which cl. 19 (ba) of the award extends. Upon the limitation of s. 78 to officials of an organization, an argument against the validity of cl. 19 (ba) is founded. The argument is that the clause is inconsistent with the Act, with an intention to be implied in s. 78. A conciliation commissioner, of course, is not competent to insert in an award anything that is contrary to the express or implied intention of the Act. The inconsistency which is urged depends upon there being in s. 78 an implication that, as only the officials enumerated in the section are made liable if they engage in the direct action which is prohibited, and the organization is omitted, it was not the intention of the Act that an organization should be liable to any penalty if it engaged in any direct action to which s. 78 extends.

A similar argument was advanced in the case of the Seamen's Union of Australasia v. Commonwealth Steamship Owners' Association [1] . In cll. 77 and 78 of the award in question in that case there were prohibitions similar in nature and purpose to cl. 19 (ba). These clauses, unlike cl. 19 (ba) applied both to the union and employees. The employers' log of claims and the award the subject of that case were subsequent to the repeal by Act No. 43 of 1930 of ss. 6 and 6A of the Commonwealth Conciliation and Arbitration Act 1904-1928. The log and cll. 77 and 78 of the award in effect repeated certain prohibitions and penalties that had been in the repealed provisions. Latham C.J. said [1] : "The repeal of these sections, in my opinion, does not affect the power of the Arbitration Court in making awards. That power was not extended by these sections when they were in operation, and it is not diminished by their repeal." Rich J. said [2] : - "Of course the repeal of these provisions does show a change of legislative policy. It does show that the Legislature decided to remove from the law the provisions making strikes and lock-outs and the like offences. But I cannot find in the repeal any indication of intention that the powers of the Arbitration Court in settling an industrial dispute should in any way be restricted. If a dispute existed on such matters as job control the Arbitration Court might well be expected to prohibit them by an award. I see nothing in the change of policy to show that the Court's powers in this respect were to be limited. The deleted portions were general legislative prohibitions separated from the sections which delimit the jurisdiction of the Court. Such provisions are unaffected by any express enactment and I can find nothing in the statute as it stands supporting a restriction. If the repeal of the old prohibition of strikes and lock-outs evidences a legislative policy against the imposition of any similar prohibition by the award of the Court in the course of settling a dispute all I can say is that the Legislature has stopped short of expressing its policy in any legislative form". Starke J. said [3] that "Their repeal (ss. 6 and 6A) did not affect whatever jurisdiction the Arbitration Court possessed under the Act". The present Chief Justice said [4] : - "These amendments clearly indicate an abandonment by the Legislature of the policy of forbidding under penalty strikes and lock-outs and similar acts. They may be said to indicate too that the Legislature considered that the only acts of that character which should be statutory offences under Federal law operating of its own force should be those described in sec. 58BA. But, conceding so much, I am unable to see why this implies any intention to limit the jurisdiction which, as the result of an industrial dispute, the Court of Conciliation and Arbitration might possess to forbid by award acts of a like nature by the disputants or by members of the disputant organizations. The suppression by direct legislative enactment of strikes and analogous acts is an altogether different thing from an attempt to restrain them by the terms of an arbitral award. The first was done by creating offences which might be committed independently of any exercise of authority by the Court. In one case, that of the old sec. 6, the offence depended on the existence of an industrial dispute; in another, that of the old sec. 6A, upon the existence of an award. Given these facts, whether the Court of Conciliation and Arbitration did or did not consider that the parties should be restrained by penalty from refusing to give or accept work, the law operated to create the offence. But a restraint by award can arise only from an exercise of the arbitrator's authority to determine a dispute which from its nature makes appropriate such an award. It extends no further than the parties and those they represent. The arbitrator can do no more than make it a term of the award. It is not the arbitrator but the Act that makes it an offence to contravene a term of an award".

1. (1936) 54 C.L.R. 626. 2. (1936) 54 C.L.R., at p. 637. 3. (1936) 54 C.L.R., at pp. 641, 642. 4. (1936) 54 C.L.R., at p. 643. 5. (1936) 54 C.L.R., at pp. 645, 646.

These dicta explain how the award making power under the Act stands in relation to a penal provision like s. 78. It follows from the dicta that the mere omission of organizations from s. 78 cannot provide satisfactory ground for an argument that cl. 19 (ba) is contrary to the intention of that section. If it was not a good objection to the award which the Court considered in the Seamen's Union Case [1] that it revived penal provisions of the kind which Parliament abolished by the repealing sections, it is hardly possible to sustain the argument that cl. 19 (ba) is bad merely because the Parliament did not include an organization within the scope of s. 78.

The remaining objection to cl. 19 (ba) is that it has not the requisite relation to an industrial dispute to make it valid. Clause 28 of the present log is similar in character and purpose to cl. 26 of the log in the Seamen's Union Case [1] . The decision in that case shows that cl. 26 of the log there in question was a demand with respect to "industrial matters" and its rejection caused an "industrial dispute" as to those matters. It follows from the decision that cl. 28 of the present log relates to "industrial matters" and the rejection of the log resulted in an "industrial dispute" as to such matters. Clause 28 is a demand that direct or industrial action within the area of the employment should be abandoned. Upon the rejection of the log there was, according to the theory of the law derived from the Conciliation and Arbitration Act, a dispute about the exertion of that kind of force or pressure to obtain alterations in the terms and conditions of employment. A comparison between cl. 28 of the log and cl. 19 (ba) of the award shows that the prohibition against direct or industrial action provided in the award is not as wide as cl. 28. The comparison shows that what cl. 19 (ba) prohibits is included in cl. 28. It follows from the decision in the Seamen's Union Case [1] that what was awarded upon the employers' claim with respect to direct action was within their claim, that cl. 19 (ba) of the present award must be within cl. 28 of the present log and consequently within the ambit of the industrial dispute settled by the present award.

1. (1936) 54 C.L.R. 626. 2. (1936) 54 C.L.R. 626.

Clause 19 (ba) is not limited to overtime as was the prohibition against "bans, limitations and restrictions" which was in question in the case of R. v. Metal Trades Employers' Association; Ex parte Amalgamated Engineering Union, Australian Section [2] and was there held to be valid. Clause 19 (ba) applies generally to all the terms and conditions of the award governing the performance of the work falling within the scope of the award. Having regard to the scope and content of the award, I think that cl. 19 (ba) is within the award-making powers of the conciliation commissioner because the clause is incidental or ancillary to the settlement of the industrial dispute by the award. Upon these principles the prohibition against "bans, limitations and restrictions" which was in question in the case of R. v. Metal Trades Employers' Association [3] was held to be valid.

1. (1951) 82 C.L.R. 208. 2. (1951) 82 C.L.R., at pp. 245, 246, 257, 258.