R v Gaudron; Ex parte Uniroyal Pty Ltd

R v Gaudron; Ex parte Uniroyal Pty Ltd - [1978] HCA 3 - HCA 1978 case summary — Zoe

[29]

The prosecutor also argued that the making of an award granting preference in employment to unionists was beyond constitutional power. This submission, which went to the validity of s. 47, was that the constitutional conception of "industrial disputes" was in some way limited to disputes about actual or existing employment and that it did not extend to disputes about future or prospective employment. It is an untenable suggestion, one which finds no support in the language of the Constitution or in authority. There is nothing in the conception of "industrial disputes" which tends to support this arbitrary limitation. A dispute between an employer and his employees in an industry as to whether members of a union are to have preference in employment by that employer in that industry has all the character and flavour of an industrial dispute. It is a dispute between an employer and his employees which is concerned with the relationship of the employer with his employees. Although this Court has held that the Commission has no power under the Act to award compulsory unionism (R. v. Wallis; Ex parte Employers' Association of Wool Selling Brokers [3] ; R. v. Findlay; Ex parte Victorian Chamber of Manufactures [4] ; Reg. v. Judges of the Commonwealth Industrial Court; Ex parte Cocks [5] ), the decisions turn on the construction of the Act, rather than upon s. 51 (xxxv.) of the Constitution. Moreover, they acknowledge that a dispute about preference in employment is a dispute about an "industrial matter" within s. 4, a conclusion which was inevitable in view of the presence of par. (j) in the statutory definition and s. 47 (previously s. 56). This acknowledgment, reiterated in Reg. v. Holmes; Ex parte Altona Petrochemical Co. Ltd. ("the Altona Case") [6] , necessarily recognizes that a dispute about preference in employment for unionists falls fairly and squarely within the constitutional conception of an industrial dispute. It is my view, accordingly, that s. 47 (1) is a valid enactment of the Commonwealth Parliament.

[47]

(j) the preferential employment or the non-employment of any particular person or class of persons or of persons being or not being members of an organization; this Court decided in R. v. Wallis [14] and R. v. Findlay [15] that s. 56, which is relevantly indistinguishable from its present counterpart s. 47, is the sole source of authority in the Commission to make an award binding on an employer requiring him to give preference to a union or its members. The two cases proceed according to the view that a demand for more than that preference cannot found a dispute as to an industrial matter. They were the outcome of a legislative history which extended back beyond s. 56 to s. 40 of the Act in its original form. In early days it was said of s. 40 that it empowered the Court to grant preference to unionists even though preference was not in dispute. Griffith C.J., Isaacs, Higgins and Rich JJ. and later Starke and Evatt JJ. were of this opinion, though Griffith C.J. seems to have thought the provision was invalid as transcending the limits of s. 51 (xxxv.) - see the Tramways Case [No. 2] [16] ; Australian Workers Union v. Pastoralists' Federal Council of Australia [17] ;Waterside Workers' Federation of Australia v. Gilchrist, Watt and Sanderson Ltd. [18] ; Anthony Hordern & Sons Ltd. v. Amalgamated Clothing & Allied Trades Union of Australia [19] . On this interpretation the presence of s. 40 would not have worked any limitation on the general power of the Commission to award preference in settlement of a dispute about the giving of preference. Despite its obvious attractions, this interpretation, well supported though it had been, did not prevail. In Anthony Hordern's Case [20] Gavan Duffy C.J., Dixon and McTiernan JJ. who constituted the majority, held that s. 40, being a particular power, which was subject to limitations, excluded the operation of the general powers of the Commission in relation to the same subject matter. Subsequently s. 56 was accorded a similar interpretation in R. v. Wallis [21] and R. v. Findlay [22] , both of which were unanimous decisions. They must be accepted as an authoritative exposition of the meaning of s. 47 and, as I have said, no relevant distinction can be drawn between that section and its successor. The consequence is that s. 47 limits the power of the Commission to award preference to unionists. 1. (1949) 78 C.L.R. 529. 2. (1950) 81 C.L.R. 537. 3. (1914) 19 C.L.R. 43, at p. 81. 4. (1911) 5 C.A.R. 48, at pp. 98-99. 5. (1924) 34 C.L.R. 482, at p. 549. 6. (1932) 47 C.L.R. 1, at pp. 10-11, 15-18. 7. (1932) 47 C.L.R. 1. 8. (1949) 78 C.L.R. 529. 9. (1950) 81 C.L.R. 537.

[111]

The history of the matter may be shortly stated. It began with a log of claims served on Uniroyal Pty. Ltd. ("Uniroyal") and others by the Federated Miscellaneous Workers' Union of Australia ("the M.W.U.") on 26th May 1975 which was rejected. On 24th March 1976 the Commission made a consent award, the Plastics, Resins, Synthetic Rubbers and Rubbers (Uniroyal Pty. Ltd.) Award 1975, ("the Award") which was expressed to be binding upon the M.W.U. and Uniroyal. That award dealt with some only of the matters in dispute pursuant to the log of claims. Clause 41 of that log was as follows: "Absolute preference of employment shall be given to financial members of the Federated Miscellaneous Workers' Union of Australia", but no provision dealing with such preference was included in the Award. On 14th July 1976 the M.W.U. made an application to the Commission to vary the Award by the addition of a number of new provisions, the relevant one being a clause entitled "Preference to Financial Members of the Union". On 4th January 1977 Gaudron J. ordered that the Award should be varied by the insertion of a clause numbered 38 and headed "Preference to Members of the Union". The full text of that clause is set out in the judgment of my brother Mason and I do not repeat it here. It differed in some respects from the clause as sought by the M.W.U. and in particular extended the operation of the preference given by the clause to all members of the Union, whether financial or not. Prior to that award coming into operation Uniroyal appealed to the Full Bench of the Commission, pursuant to s. 35 of the Conciliation and Arbitration Act 1904, as amended ("the Act") and obtained an order under s. 35 (8) staying the operation of the variation. On 30th May 1977 the Full Bench by majority dismissed the appeal and discharged the stay order. Thereupon the prosecutor sought from this Court an order nisi for writs of prohibition and certiorari. That application was referred to the Full Court and an order made staying the proceedings in and the orders of the Commission.

[113]

It was argued for the prosecutor that the variation of the Award extended beyond the ambit of the dispute in that, though the demands in the log were for preference for "financial members of the Union", the preference clause inserted by the variation applied to "members of the Union". In my opinion this point is well taken. I would entirely agree that the Commission is not restricted in its powers to the making of an award in terms precisely those formulated in the log of claims, the rejection of which resulted in the industrial dispute or in a counter-log. It is well settled that the Commission may in settling a dispute falling within its jurisdiction do so by making any provision which is necessary or expedient for the settlement of that dispute but that does not overcome the limitations imposed by the requirement that the Commission may not deal with matters outside the ambit of the dispute. With due respect to those who take the contrary view, it seems to me that Australian Tramway Employees' Association v. Commissioner for Road Transport and Tramways (N.S.W.) [44] and R. v. Commonwealth Court of Conciliation and Aribtration; Ex parte Kirsch [45] do not establish the proposition that the Commission may extend a benefit sought in a log of claims to persons outside the class of persons for whom the benefit is claimed in the log. The former case did decide that an award could introduce a new method of adjusting the basic wage which differed from the rival methods of the parties but that was because the dispute included the topic of the mode of adjustment. The Court did however hold that a clause which involved a discrimination between married and unmarried men was invalid because no such distinction was involved in the original dispute - see per Dixon J. [46] and per Evatt and McTiernan JJ. [47] . The latter case dealt with a question as to whether the dispute in that particular case extended to wages to be paid to non-unionists. It was held by the majority that the original dispute related only to claims for wages and conditions of unionists, though it also claimed that no one other than a unionist should be employed, and that the Court had no power to deal with wages and conditions of non-unionists as a matter incidental to composing the dispute between the parties. The minority took a view of the ambit of the dispute which enabled them to regard wage fixing for non-unionists as expedient for its settlement. That case thus deals with a situation very similar to the present, in that a benefit claimed for one category was by an award extended to another in respect of which no claim was made and no dispute existed. There is no doubt that an award may be made in terms different from those contained in the log of claims, but that is not to say that it may step outside the ambit of the dispute. Equally it does not seem to me that the undoubted power to deal with "threatened, impending and probable industrial disputes" warrants an award going beyond the area of an actual dispute by extending the benefits of the award to persons in respect of whom no claim is made in the log, the rejection of which is the only basis for the dispute with which the Commission is concerned. The Commission did not here find that there was any threatened, impending or probable dispute and did not purport by the making of this variation of the Award to seek to prevent some threatened, impending or probable dispute from arising.

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Court

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Before

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Judgment (130 paragraphs)

Parties