High Court of Australia|1914-06-09|Before: Rich JJ

For the reasons given by me in my judgment in the Builders' Labourers' Case[18], I hold that a dispute in the shipping industry by the masters and navigating officers of vessels with their employers can extend beyond the limits of one State, although at the time the dispute arises or extends the vessels of the employers are not actually competing with each other for inter-State trade, and although the owners of the vessels in each State confine the operations of their vessels entirely to their respective States.

It appears to me that the contention that an industrial dispute cannot extend beyond the limits of one State because industries carried on solely in one State are under the control of the State and the federal Parliament cannot legislate so as to interfere in any way with the State industries, is not sound. It is true generally speaking, but once the power of the Commonwealth Parliament under the Constitution to legislate is clear, State control is subject to that power. The Commonwealth Parliament has unqualified power under sec. 51 (XXXV.) to pass laws with respect to the prevention and settlement by conciliation and arbitration of inter-State disputes; and that power is effective, even if the laws affect State shipping or other State industries when effect is given to them. The question whether the dispute does or does not extend does not depend on which Government has control of different parts of the industry affected, the Commonwealth or the State; or whether the employers carry on business in one State only; or on the fact that the industry is in a sense local, such as building, mining, shearing, &c. It is the persons engaged in the industry who dispute, and cause a dispute to extend, without the slightest consideration to State boundaries.

As to the question whether there was a dispute at all between the masters and officers and their employers, the respondents, I venture to add some remarks to those contained in the judgments just delivered by my learned colleagues, because it appears that I differ from my learned brothers who, with me, form the majority in this case, as to what constitutes an inter-State dispute cognizable by the Arbitration Court.

The fact that the High Court held in Allen Taylor's Case[19] that there was not at that time (13th December 1912) any dispute between the claimants and the respondents was urged as a reason why there was not at the time the matter was referred to the Arbitration Court on 24th February 1913 any dispute. A reference to that decision, and what took place from 13th December 1912 up to 24th February 1913, and since, must, I think, dispose of that contention, and also prove that there was a dispute on 24th February 1913, and at the date of the award (sec. 38 (b)).

In Allen Taylor's Case[20] the learned Chief Justice decided upon the facts then before the Court in that case, that the applicants were not at the time of the filing of the plaint parties to an industrial dispute extending beyond the limits of one State. In his judgment he gave the reasons why he arrived at that conclusion.

The following were amongst the reasons mentioned by the learned Chief Justice: -

"The time limited" (by the demands), "fifteen days, during which the 83 addressees of the letter scattered throughout the Commonwealth were to enter into an industrial agreement or convene a conference was of course absurdly inadequate. The letter can only be regarded as an ultimatum, and the suggestion of a conference as illusory"[21]. That cannot be said in this case, because not only was there the original demand referred to in the judgment but also a demand in January 1913, and a second request for a conference; and a compulsory conference was actually held on 24th February 1913 at which all the parties were present or represented.

"But the letter was also, upon the evidence, the first notification of any dissatisfaction on the part of the masters and officers employed by the applicants with the existing conditions of their service"[22]. That cannot be said in this case, because not only had the employers the notice referred to in that judgment, but a further written notice of dissatisfaction and demand in January 1913, and a further verbal notice of dissatisfaction and demand at the conference in February 1913.

"It is conceded that the demand was genuine, in the sense that it was made with the authority of the members of the Guild. The question is whether, on the expiration of fifteen days without assent to this peremptory demand, an industrial dispute extending beyond the limits of any one State came automatically into existence, of which the Commonwealth Court of Conciliation and Arbitration had cognizance"[23]. That cannot be said in this case, for the question is whether after two written notices of dissatisfaction - two written formal demands for altered conditions - and a compulsory conference at which dissatisfaction was expressed and the demands refused, coupled with the other facts proved in the case, especially persistence in the demand (to which I intend to refer), there came into existence a dispute of which the Court had cognizance.

The learned Chief Justice added[24]: - "In my opinion some real opportunity of discussion of an industrial claim between the parties concerned must be afforded before it can develop into an industrial dispute within the meaning of that provision. If peace is desired, it is at least possible that friendly discussion may prevent either its creation or its extension." Surely in this case there was some real opportunity of discussion, especially at the conference between the parties, to prevent its creation into an actual dispute or to crystallize it into a dispute. The learned President found that there was in this case at the date of that conference an actual dispute between the claimant organization and the respondents.

Was there an intention to insist upon the demand and persistency in the demand - or was it only a claim not intended to be insisted upon, as suggested in Allen Taylor's Case[25] - up to the time the first plaint was filed?

The evidence shows that there was the original demand; the refusal to concede the demand or confer; the plaint followed that refusal; the organization persisted in the demand before the Arbitration Court; the organization persisted in it before the High Court in supporting the award. After the hearing of the rules nisi for prohibition in the High Court in December 1912, meetings of members of the organization were called in all the States in question, and resolutions were passed by members of the federation in each State to make a new demand and to insist upon it to the extent of withdrawing all the men in all the respondents' ships in all the States if the demand was not complied with. The members in all the States in question followed that up by authorizing in writing a new joint demand and request for conference to be made by the organization. They authorized the organization to press for a settlement of the demand in conference or in the Court. When the demand was refused, the organization asked for and obtained from the President of the Court a compulsory conference of representatives of employers and employees. The demand was pressed at the conference and refused. The matter was then referred by the President to the Court for Arbitration. The organization appeared and undertook to the President not to call the men out of the respondents' ships to enforce the demands until the High Court dealt with a special case he proposed to refer to that Court. The organization pressed for the demand before the Arbitration Court. The organization pressed for the demand before the High Court on the special case submitted by the President in August last. The organization pressed for the demands at the Arbitration Court in September and October last, after the special case in the High Court, when an award was made.

I do not see how any greater evidence of persistency in the demand, and an intention to insist upon it could be given - except by an unlawful strike while the matter was pending in the Arbitration or High Court.

On the facts before the Court I hold there was a dispute in this case about a common demand that all the members (except those mentioned later on) wanted for themselves and for all the members of the organization, which they persisted in and intended to insist upon.

Did the dispute as a fact extend beyond the limits of one State? It appears to me that the evidence before the Court on this occasion shows that the dispute was one that extended beyond the limits of one State. I find a difficulty to discover any evidence of a purely State dispute at all. It commenced in December 1912 as a dispute extending to the three States. After 13th December 1912 there was only one federal registered organization to deal with employers about the matters in question on behalf of all the members in all the three States, and only one dispute, namely, one extending to three States.

Federal registered organizations of employees are the only bodies authorized by the Commonwealth Conciliation and Arbitration Act to file plaints in the Commonwealth Court of Conciliation and Arbitration.

All the members in the three States as members of one federal organization, and not as members of three State Unions, authorized the federal organization to make the demand on all the employers in the three States for the redress of the same grievances (not for different ones in different States) and for the same common demand (wages and conditions); and all the members of the one organization wanted the same things for themselves and for the members in each of the States.

The federal organization, authorized by its members in the three States, made the same joint demand as one demand on all the employers for all its members; asked for a settlement of the claims of its members, and notified the employers, at the same time, of the dissatisfaction of the employees with existing wages and conditions and of their intention to insist upon the demand.

The representatives of the federal organization and of the employers in the three States were summoned to attend and met in conference in February 1913 to settle an actual or probable inter-State dispute, and failed to do so. The demands were refused by all the employers in all the States, and no settlement of the dispute was effected.

All the essentials of an industrial dispute extending beyond the limits of one State appear to me to have been proved in this case at the time the dispute was referred to the Court by the learned President of the Arbitration Court, namely, on 24th February 1913, and at the date of the award.

The learned President did on pages 8-9 of the award make the statement quoted by the learned Chief Justice concluding with the words following: - "But the respondents who got the order for prohibition are clearly in this dispute. They merely exercised their legal right by applying for the prohibition, but there is no doubt that their action kindled the indignation of the Guild members, and evoked the resolutions to quit the vessels."

If the President had only found that fact, and on the evidence before this Court I found the same fact only, I agree that no dispute would have been proved.

I find, however, that on page 2 of the award the learned President said: - "Meetings of the Guild, held in Hobart, Adelaide, Port Pirie, and elsewhere, confirmed the resolutions which had been carried in Sydney; numerous letters were sent by individual masters and officers to their employers, demanding, in some cases, the award conditions, in others the new log; and the Guild went on in its own way, getting members to sign authorities for the presentation and enforcement of the new demands, in the hope that the extreme step of withdrawal of services would not be taken, so long as there remained any hope of relief from this Court." And on pages 2-3 of the said award he said: - "The conference was held on the 24th February, and was attended by leading ship-owners in the several States. I came to the conclusion at the conference, and from what passed there, that the dispute was actual, endangering the operations of the whole shipping industry on the Australian coast - except as to the inter-State ships, which are regulated by a federal agreement framed by me and accepted by the Guild and the inter-State employers in December 1910. No agreement having been reached, I referred the alleged dispute into Court (24th February 1913). The matter came before this Court on 29th March 1913, in Sydney." And on page 3 of the said award he said: - "I also obtained from the Guild an undertaking that the threatened withdrawal of services would not take place before the decision of the High Court or the 30th June, whichever should first come." And on page 4 of the said award he said: - "The parties have now had several days for investigating before me the question, is there a dispute, or is there not, a question which, I am told, I have no power to decide, but must investigate. The decision of the High Court says that I am justified in finding that there is an actual industrial dispute, and in proceeding to investigate the merits; but this decision rests on the assumption that the facts stated in the affidavits are true; and I have given the respondents full opportunity to cross-examine the Guild's witnesses, and to call evidence of their own." And on page 7 of the said award he said: - "In coming, as I do, to the conclusion that there is a dispute of real substance, I am influenced also by the nature of the grievances alleged, and by the demeanour and appearance of the witnesses under the previous plaint." And on page 8 of the said award he said: - "I am satisfied that, although it must be taken that there was no industrial dispute when I made the award on 25th April 1912, there was on the 24th February 1913 (the day of the reference into Court), and that there is still, an industrial dispute within the Constitution and the Act."

It has also been laid down by this Court that if the President does find there is a dispute, that does not settle the matter. This Court has to find on the facts before the President, and on the evidence submitted to this Court on a motion for prohibition, whether there was or was not a dispute, irrespective of what the President may or may not find or say.

On the facts in this case I hold that there was an industrial dispute extending beyond the limits of one State.

Further, the onus lies on the applicants to show that there was no jurisdiction, and they have not shown that there was not a dispute extending beyond the limits of one State. They apparently relied on three general defences as to all the respondents, and three special defences as to other respondents.

That there was no dispute at all. That I hold was disproved.

That if there was a dispute it was only a State dispute. That I hold was not shown.

That the shipowners were not in competition with any other persons outside Tasmania carrying on the business of shipping when the alleged dispute, if any, took place, and their shipping business has been (with one exception) wholly confined to the State of Tasmania. That ground I think is futile after the decision of the majority of this Court in the Builders' Labourers' Case[26], to which I have already referred.

That as to some of the respondents - namely, James Sheppard & Son, the North Huon Steamship Co., and Henry J. Condon - they ceased to do business before February 1913, and had not then, and have not now, in their employment any members of the claimant organization. I agree that the respondents referred to are not bound by the award.

That as to three of the respondents - James Rowe & Sons Ltd., Risby Brothers, and the Huon Channel & Peninsula Steamship Co. Ltd. - they owned small vessels plying only in the port of Hobart; they were not in dispute with their masters; and the claim made and the award are not applicable to them or binding on them. As to this defence the question is reserved for further consideration.

That as to some of the respondents the masters by a letter dated 20th September 1913 admitted that they were not in dispute with the respondents who employed them, and as there was no dispute the award was not binding on those respondents. As to these respondents I cannot see why the statements contained in that letter should not be accepted. The letter was not in evidence before the President. The letter has never been withdrawn, although signed last September, nor has any affidavit been tendered showing that it was unfairly obtained. I take it the 15 masters in question joined with the other members in a claim for more wages and better conditions, and they would have been pleased to receive what they claimed, but when the Court was reconstituted in September 1913 to investigate the question as to whether there was a real dispute or not, they volunteered at once to sign, and did sign, the letter in question admitting they were not in dispute. (They evidently did not intend to persist in the demand.) I do not think that unionists in these days, with a federal organization to support them, will be induced to sign a letter such as the one in question unless they wish to do so.

As to the respondents whose masters signed the letter in question of 20th September, I hold there was not any dispute with the masters who signed that letter. The respondents who are not bound because of the admissions contained in that letter are James Rowe & Sons and the Huon Channel & Peninsula Steamship Co. Ltd.

I agree that (1) as to the respondents whose masters and officers (if any) have all signed the letter of 20th September 1913, and (2) as to the three respondents who have ceased to employ members of the claimant organization, the order nisi should be made absolute. As to the one respondent left, Risby Brothers, whose vessels ply in the port of Hobart only, the question is reserved for further consideration. As to all the rest of the respondents I hold the application for prohibition should be refused.

In August last the majority of this Court in the Newcastle & Hunter River Steamship Co.'s Case [No. 1][27] held that in the case of a dispute being only threatened or impending or probable within the meaning of sec. 4 of the Act, the Arbitration Court had jurisdiction to arbitrate between the parties and to make a binding award. If I am wrong in holding that there was an actual dispute extending beyond the limits of one State, I do not think there can be any doubt on the facts proved in this case that there was a dispute threatened or impending or probable within the meaning of sec. 4 of the Arbitration Act, and in such a case this Court has decided that a binding award can be made.

On this ground also, I hold that, except as to the respondents mentioned, prohibition should not be granted.

Order nisi absolute for prohibition against enforcing the award as against the Huon Channel & Peninsula Steamship Co., James Rowe & Sons Ltd., James Sheppard & Co., North Huon Steamship Co. Ltd. and Henry J. Condon. As to the other applicants other than Risby Brothers order nisi discharged. As to the applicants Risby Brothers further consideration reserved.

Solicitors, for the applicants, Ewing, Hodgman & Seager.

Solicitors, for the respondents, Sullivan Brothers.

[1] [1912] HCA 85; 15 C.L.R., 586.

[2] [1914] HCA 32; 18 C.L.R., 224.

[3] [1914] HCA 32; 18 C.L.R., 224.

[4] [1914] HCA 32; 18 C.L.R., 224.

[5] [1912] HCA 85; 15 C.L.R., 586.

[6] [1909] HCA 43; 8 C.L.R., 465, at p. 490.

[7] [1914] HCA 20; 18 C.L.R., 88.

[8] [1855] EngR 178; 15 C.B., 743.

[9] [1914] HCA 32; 18 C.L.R., 224.

[10] [1914] HCA 32; 18 C.L.R., 224.

[11] [1912] HCA 85; 15 C.L.R., 586.

[12] [1912] HCA 85; 15 C.L.R., 586.

[13] [1912] HCA 85; 15 C.L.R., 586.

[14] [1913] HCA 76; 16 C.L.R., 591.

[15] [1912] HCA 85; 15 C.L.R., 586.

[16] [1912] HCA 85; 15 C.L.R., 586, at pp. 601-602.

[17] [1914] HCA 32; 18 C.L.R., 224.

[18] [1914] HCA 32; 18 C.L.R., 224.

[19] [1912] HCA 85; 15 C.L.R., 586.

[20] [1912] HCA 85; 15 C.L.R., 586.

[21] [1912] HCA 85; 15 C.L.R., 586, at p. 598.

[22] [1912] HCA 85; 15 C.L.R., 586, at p. 598.

[23] [1912] HCA 85; 15 C.L.R., 586, at pp. 598-599.

[24] [1912] HCA 85; 15 C.L.R., 586, at p. 599.

[25] [1912] HCA 85; 15 C.L.R., 586.

[26] [1914] HCA 32; 18 C.L.R., 224.

[27] [1913] HCA 76; 16 C.L.R., 591.

Conciliation and Arbitration Act 1904

R v Merchant Service Guild of Australasia [1914] HCA 36; (1914) 18 CLR 273 (9 June 1914)

R v Merchant Service Guild of Australasia [1914] HCA 36;

At a glance

Court

Decision date

Before

Source

Judgment (66 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (2)

R v Merchant Service Guild of Australasia [1914] HCA 36; (1914) 18 CLR 273 (9 June 1914)