R v Metal Trades Employers' Association; Ex parte Amalgamated Engineering Union

R v Metal Trades Employers' Association; Ex parte Amalgamated Engineering Union - [1951] HCA 3 - HCA 1951 case summary — Zoe

[9]

It is not contended that the court did not have jurisdiction to include some provisions with respect to overtime in its award and, further, it was expressly conceded that the court might, as a condition of reduction of hours to forty hours per week, impose conditions as to overtime. Indeed, the only attack upon the clause was with respect to the provision that no organization should "indirectly" be a party to or concerned in any ban, limitation or restriction upon the working of overtime in accordance with the award. It was argued that, though the ambit of the dispute might be such as to justify a clause in the award prohibiting an organization being directly a party to or concerned in any ban, &c., it was beyond the jurisdiction of the court to make any provision with respect to a party being indirectly so concerned. I admit that I am unable fully to appreciate some of the arguments produced in support of this proposition. There were general statements to the effect that the clause went too far, but it seems to me obvious that if the object (as was evidently the case) of the clause was to secure an effective observance of the award, the Arbitration Court, unless it were remarkably naive and innocent, would be more concerned with attaching responsibility for indirect action by a union in relation to a breach of an award than for direct action by the union. In the case of direct action the union could not dispute its responsibility. But if the officers of a union were either weak or complacent or defiant, the obvious course would be to avoid all ostensible and active implication in the placing of any restriction upon overtime. The course which would naturally be adopted would be to abstain from preventing what would stoutly be asserted to be independent action of groups of members. It appears, to me therefore, that a prohibition of the union being indirectly concerned in bans upon overtime was a natural and appropriate provision to include in the award. Accordingly I am of opinion that the first ground of the order nisi has not been shown to be well founded.

[10]

The second ground of the order nisi is that the order purporting to be made under s. 29 (b) of the Act was not an order ordering compliance with the award because it required the union "to procure the members to work overtime in accordance with the award without any ban upon overtime". One point made is that the order is not an order for compliance with the award because it does not simply order that some particular provision of the award should be obeyed. In my opinion there is no substance in this objection. Section 29 (b) provides that the court shall have power "to order compliance with an order or award proved to the satisfaction of the court to have been broken or not observed". An award is binding on the parties thereto. The award of its own force binds the parties: see the Act, s. 50. If, therefore, s. 29 (b) means only that the court shall have power to order compliance with an award in the sense that it may direct compliance with some particular term of the award, s. 29 (b) is quite ineffective to produce any result whatever. In R. v. Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett [1] , the Court had to consider the provisions of s. 58E, which gave power to the court to give directions "for the performance or observance" of the rules of an organization. An election had been held and there was a dispute as to the persons who were validly elected. Under s. 58E the Arbitration Court made an order that certain individuals should be recognized as officers of the union. The rules of the union said nothing about recognizing people as officers, but it was held that under s. 58E the court had power to give detailed directions for the doing of acts or the observance of forbearances in the recognition of persons held by the court to have been duly elected as officers of the union which acts and forbearances would (in the judgment of the Arbitration Court) constitute performance or observance of the rules: see [2] . In my opinion the same principle should be applied in the interpretation of s. 29 (b). That section authorizes the court to order a party bound by an award to do acts or observe forbearances which in the circumstances are in the judgment of the court necessary or desirable in order to bring about observance of the award. As I have already said, unless the section is construed in this manner an order made under the section would merely repeat the contents of an award which already was binding.

[43]

The answer made by the respondents to this attack upon the order made as under s. 29 (b) may, I think, be divided into three steps. Summarily stated, what they amount to is as follows: - (1) An assertion that, if, as must be assumed, the organization had been party to or concerned in the imposition of a ban, restriction or limitation, the wrongful act could be undone only by the organization causing the men to work overtime; (2) an insistence that the interpretation of the award and the ascertainment of the facts fall within the competence of the Arbitration Court; (3) a reliance upon the principles governing the use of the writ of prohibition; that is to say, the impossibility on prohibition of examining more than the existence of the jurisdiction which the order purports to exercise. If it were not for s. 32 of the Act I think that this answer would not suffice. For, after all, what s. 29 (b) authorizes is an order to comply with an award and that postulates an award and an ascertainable duty arising thereunder. Interpretation may justify the adoption of a particular meaning and the assignment of a particular operation of which the award is capable where it is capable of more than one meaning and operation, but it cannot go further. Given so much, the order must be confined to compliance with the instrument according to its true meaning or some interpretation of which it is capable. But I think the validity of the order is saved by the presence of s. 32 in the Act. It must be borne in mind that we are here concerned only with an alleged excess of the jurisdiction conferred upon the Arbitration Court by the Act. The case does not touch the limitations which the Constitution imposes upon the power of the legislature to confer jurisdiction. The legislature might have conferred power upon the court in terms which would have justified the order. The prosecutor's complaint is simply that the order goes beyond the power which the statute has actually conferred. Now it cannot be denied that the order impugned was made by the Arbitration Court in purported pursuance of s. 29 (b), that it is an attempt to exercise that power and that upon its face the order appears to be an exercise of the power. It is only when you look behind it at the terms of the award that any ground is disclosed for denying that the order falls within s. 29 (b).

[44]

In my opinion in such a case s. 32 operates to give validity to the order. The general policy of the Act is to give efficacy to the completed proceedings of the Arbitration Court and no doubt also of the conciliation commissioners. This can be seen from the provisions contained in s. 32 and in s. 16. No doubt there are instances in the Act where imperative duties or inviolable limitations or restraints are imposed by the Act on the Arbitration Court or the commissioners. When that is the case invalidity affects any transgression of the limitation or restraint and a mistaken decision that the duty is less extensive than it is does not relieve the court or the commissioner from its imperative obligation. In such cases prerogative writs will issue for the enforcement of the duty or restraint. An example may be seen in the mutual operation of ss. 13 and 25 of the Act. For it is plain that the boundary between the power of the Arbitration Court and the power of the conciliation commissioners must be maintained absolutely and that the encroachment of one tribunal upon the province of the other must mean invalidity pro tanto. Otherwise there might be conflicting orders or awards of equal authority upon the same subject. Conversely an erroneous decision by one of the tribunals that a matter lies outside its authority and is within the authority of the other can have no effect. The duty of a tribunal to exercise the jurisdiction thus erroneously declined remains imperative and may be enforced by mandamus. Otherwise the matter submitted to the jurisdiction would remain without a valid determination. But these are considerations which go to the interpretation of the particular provisions of the statute and the reason why prohibition and mandamus lie is because, upon the interpretation to which they point, the division of power is absolute and the two jurisdictions are at once mutually exclusive and complementary. There can be no encroachment which is valid and no intermediate field of power allowed to remain mistakenly uncovered or unexercised. The general policy of the Act of conferring validity on determinations once they have been actually made and completed can have no application to such a situation: see R. v. Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust.) Ltd. [1] and R. v. Galvin; Ex parte Metal Trades Employers' Association [2] .

[46]

But, unless from the nature of some particular provision defining or limiting the power of the tribunal it appears to be the true intention that no excess of the power should have any effect, s. 32 (1) (c) and (d) operate to give validity to an order or award notwithstanding that it goes outside the definition of the power as expressed or beyond the limitations by which it is restricted if the order or award does not upon its face exceed the expressed authority of the Arbitration Court and if it relates to the subject matter of the Court's authority and amounts to a bona-fide attempt to exercise a power or powers which the court possesses. In R. v. Hickman; Ex parte Fox and Clinton [3] , a case concerned with a protective regulation of the same general character as s. 32 (1) (c) and (d), I stated what in my opinion is the relation of such a provision to the jurisdiction of this Court under s. 75 (v.) of the Constitution to grant writs of prohibition and mandamus against officers of the Commonwealth, what is the interpretation placed upon such provisions and what effect should be given to them where the validity of an order or award is challenged upon grounds arising from an Act of Parliament whether immediately or mediately and not because the order or award goes beyond what the Constitution allows. I shall not discuss again the significance or operation of such provisions nor cite the authorities I there mention, but I desire the passage to which I have referred to be read, mutatis mutandis, as part of this judgment. It is enough to say that I am of opinion that s. 32 (1) operates to protect an order or award of the Arbitration Court from invalidation on the ground that the court has not fulfilled the requirements prescribed by the Act for its proceedings or for the exercise of its powers or upon the ground that the limits of the relevant power of the court as expressed in the definition of the power or in some restriction upon it have been exceeded if it appears that the order or award is reasonably capable of reference to a power belonging to the court and relates to the subject matter of the jurisdiction and amounts to a bonafide attempt to exercise an authority possessed by the court.

[53]

The first answer, in spite of its plausible appearance, ought not, I think, to be accepted. There is a question whether the Act formally does make breach or non-observance of an award a contravention of the Act, but I pass it by. The reason why the answer is not a good one is that, as I read it, the Conciliation and Arbitration Act maintains a distinction between infringements of the Act and infringements of awards and when it speaks of contraventions of the Act it is not referring to breaches of or failures to observe awards, even if such breaches or non-observances are contrary to the statute and expose the persons offending against the awards to penal consequences. The distinction is made in the terms in which the following provisions are expressed, viz.: - ss. 31 (1) (a) and (b), 33 (1) (a), 61, 64 (1) and (6) and 80 (1) (c). Indeed it is indicated by s. 29 (b) and (c) when they are considered together. The form of s. 65, which treats proceedings for an offence against the Act as not including the recovery of a penalty under s. 59 for breach or non-observance of an award, follows the distinction and appears to me to confirm the inference that an infringement of an award is not to be treated as included under the expression contravention of the Act. When s. 40 (c) empowers the Arbitration Court in relation to an industrial dispute to fix maximum penalties for any breach or non-observance of a term of an award it marks the difference in the manner in which the statute regards non-compliance with the Act and non-compliance with awards under the Act. The provisions relating to State industrial regulation observe the same distinction when they speak of a "State law dealing with an industrial matter" and "an order, award, decision or determination of a State Industrial Authority": s. 28 (1) and s. 51. Finally the importance attached by the framers of the Act to the enforcement of orders and awards and its treatment of their enforcement as a separate legislative subject tends to make it unlikely that the power to grant an injunction against contraventions of the Act was intended to comprise injunctions against breaches and non-observances of awards: see s. 2 (e) and the heading to Part V.

[59]

The fourth order in respect of which the prosecutor seeks the issue of a writ of prohibition is an order fining the organization £100 for contempt of court. The order, though not drawn up, clearly enough was made by way of punishment for a contempt in not fulfilling or observing the order made on 5th June 1950 in purported pursuance of s. 29 (b) for compliance with par. (2) of the sub-clauses, that is to say the order which, according to the opinion I have expressed, is protected from invalidity by s. 32 (1) (c) and (d). The summons upon which the order was made calls upon the prosecutor and other organizations to answer a charge that they had been guilty of contempt of the Arbitration Court and to show cause why they should not be punished for that they did commit contempt of the Arbitration Court by wilfully disobeying an order of such court. The summons goes on to identify the order so wilfully disobeyed. It will be seen that proceedings, although commenced by a party entitled to the benefit of the order of 5th June 1950, amount to much more than a recourse to civil process to enforce the execution of the order. The contempt charged is treated as a special or criminal contempt and not as a contempt in procedure. The distinction between civil and criminal contempts is well recognized, although when orders restraining or commanding the doing of specific things are defied or disobeyed the remedy by contempt may have a double aspect. This is not an occasion calling for a discussion of the two classes of contempt and of the middle ground upon which they overlap or of the purposes for which the distinction is important. The manner in which it has been treated may be seen from the following cases, though some of them, those relating to the right of appeal, are concerned rather with the nature of the cause or matter in which the contempt order was made than with the character of the contempt: Re Freston [1] ; Harvey v. Harvey [2] ; R. v. Barnado [3] ; O'Shea v. O'Shea and Parnell [4] ; Re Evans; Evans v. Noton [5] ; Seaward v. Paterson [6] ; Seldon v. Wilde [7] ; Scott v. Scott [8] ; Gower v. Gower [9] .

[62]

To my mind the difficulty in sustaining the order as an exercise of a power arising by the common law from the status of the Arbitration Court as a superior court arises from the presence in the Act of specific provisions dealing with the very subject of penalizing the disobedience of orders. Section 59 (1) provides specifically for the imposition by the Arbitration Court, among other courts, of a penalty upon any organization or person bound by an order or award who has committed any breach or non-observance of any term of the order or award. The amount of the penalty is limited to the maximum fixed under s. 40 (c), or if none is fixed the maximum which might be fixed under that provision. The maximum which might be fixed for an organization is £100. The same maximum is fixed for an employer not a member of an organization. For members of organizations the maximum is £10. Section 59 (2) names the persons or classes of person who may sue for and recover the penalties incurred under s. 59 (1). They are the Registrar, an Inspector, an organization, if it or its members are affected by the breach or non-observance, a member of any organization, if he is so affected, a party to the order or award and an officer of an organization if it or its members are so affected and if he is authorized by the rules to sue on behalf of the organization. Section 59 (3) gives a court before which proceedings under sub-s. (1) come power to order payment to an employee of an amount due to him under an award which during the preceding twelve months he has been underpaid. Section 60 then authorizes the court to order that the penalty be paid either to Consolidated Revenue or to such organization or person as is specified in the order. Section 61 provides machinery for enforcing payment of the penalty. Section 62 enacts that no person shall wilfully make default in compliance with an order or award: penalty £20. Section 119 provides that a person who has committed an offence against the Act may be charged before the Arbitration Court and the court may impose the penalty provided by the Act in respect of that offence. As s. 59 (1) expressly gives the Arbitration Court jurisdiction it is unnecessary to consider whether s. 119 would otherwise cover proceedings under s. 59; but it does cover proceedings for an offence under s. 62. A question was raised as to the scope of s. 62 and doubt was thrown on its application to organizations. It is perhaps a little remarkable that the maximum penalty for wilful default in compliance with an order or award should be fixed at so low an amount, but the section has not been altered since it was introduced as s. 49 of the Act of 1904, and in any case the amount of the penalty is no reason for excluding organizations from its operation. They are "persons" as much as other corporate bodies. Sections 59, 60 and 61 contain a carefully considered set of provisions for the enforcement of orders and awards by penal sanctions. Under them the Arbitration Court takes a specifically regulated power. Maximum penalties are fixed by reference to a standard involving a discrimination among three possible objects of the sanctions, viz., an organization, an employer not a member of an organization bound by the order or award and members of an organization. The persons who may proceed for the penalties are carefully defined, the destination of the penalties is dealt with and the mode of enforcing orders for the recovery of penalties is prescribed. None of these conditions or limitations belong to the summary power of punishing contempts which at common law belongs to a superior court and, if in virtue of its being a superior court it may punish for contempt for disobedience of its orders, the Arbitration Court possesses a power which, for the enforcement at all events of judicial orders, enables it to impose fines subject to no limitation of amount, to imprison natural persons and to sequestrate the property of organizations and to do so in proceedings commenced by persons not falling within the enumeration in s. 59 (2) and perhaps to do so even ex mero motu. Section 59 stands in Part V. of the Act, which is headed "Enforcement of orders and awards". There is no ground for saying that it is confined to arbitral as distinguished from judicial orders. It is of course penned in the affirmative, but the carefully framed conditions and limitations it expresses appear to me clearly to imply a negative, namely an intention that the same thing shall not be done without regard to these conditions and limitations.

[67]

It is necessary that the prohibition should be justified by reference to the subject matter of the industrial dispute as defined by the respective logs of the employers and employees. The employers demanded that no union of employees should place restrictions on the working of overtime. The refusal of that demand could have made an industrial dispute if the subject of the demand was an industrial matter within the meaning of the statute. In order to determine that question it would be necessary to consider how far the principle in Seamen's Union of Australasia v. Commonwealth Steamship Owners' Association [1] goes. Further, the employers' demand is that unions of employees only should not interfere with the working of overtime, whereas the prohibition in the award may apply to organizations of employers as well as of employees. In my opinion it is not necessary to justify the prohibition relating to bans on overtime by the employers' demand. The hours of work and the related question of overtime were subjects of the industrial dispute, and there could be no doubt that these were industrial matters which came within the industrial dispute determined by the award. The Arbitration Court determined the dispute in relation to those matters by prescribing the right of employers on the one hand and the duty of employees on the other hand in respect of the working of overtime. The prohibition against bans on the working of overtime is ancillary to the prescription of this right and duty. The court has put any conduct involving complicity either as a principal or accessory in banning, limiting or restricting the working of overtime, within the prohibition. In prescribing the prohibition the court has substantially adopted the language of s. 5 of the Crimes Act to describe the nature and extent of the prohibition. It is attacked only on account of its width, because it extends even to any action or inaction by an organization which exhibits only an indirect concern inimical to the fulfilment by employees of their duty to work overtime in accordance with the award. The prohibition is within power because it is ancillary to the provision of the award making the working of overtime a condition of the employment. It cannot be fatal to the prohibition that it is as thorough and detailed as the court considered necessary to make it in order to prevent the frustration of the conditions of the award relating to overtime by the action of any organization which is a party to the award. In my opinion the provision which the court inserted in the award relating to bans on the working of overtime is within the jurisdiction of the court and is valid.

[82]

This order was based upon a finding that the named unions had been proved to the satisfaction of the court to have broken the relevant sub-clauses of the award. The court, having made that finding, had power under s. 29 (b) "to order compliance with" the award on the part of the unions concerned. This power was not confined, as I read s. 29 (b), to ordering the unions in general terms to comply with the award or with the sub-clauses proved to have been broken. It extended, in my opinion, to ordering any acts or forbearances on the part of the unions which were necessary for compliance with the award in the existing situation. It was within the jurisdiction of the Arbitration Court to decide what acts or forbearances were necessary in the circumstances in order that the award should be complied with. Against its decision on that point no appeal or challenge can be entertained (s. 32), except insofar as s. 75 (v.) of the Constitution subjects it to supervision by the High Court on an application for a writ of mandamus or prohibition. It may be true to say, and I am prepared to assume for the purposes of this case, that an order purporting to be made under s. 29 (b) and directing particular acts or forbearances should be held valid if those acts or forbearances were reasonably capable of being considered to be necessary for compliance with the award: cf. Morgan and Australian Workers' Union v. Rylands Bros. (Aust.) Ltd. [1] ; but to go further than this would be to superadd to s. 29 (b) a new and essentially different power, not a power to make specific a duty which the court, acting within its jurisdiction, considers to be obligatory under the award, but a power to create a new duty independent of the obligation of the award. The power which s. 29 (b) confers may, perhaps, be regarded as purposive, in the sense that it enables orders to be made for the purpose of producing compliance with an award; but even on this view it does not authorize an order whose obligation extends beyond anything that could reasonably be regarded as necessary for such compliance.

[88]

But there remains the question whether the order can be upheld under s. 29 (b). The obligation it purported to create did not go beyond compliance with the award, and the award had been proved to the satisfaction of the court to have been broken or not observed. Proof of that fact had been given upon the applications, which were heard together, for the two orders made on 5th June 1950, and the court delivered the one set of reasons for making the two orders. The rule nisi, upon which the order now in question was made, referred to s. 29 (c) alone, but this defect could have been dealt with under s. 40 (l) or (m) without any injustice to the unions, and it has no more than procedural significance. The court described itself as acting under s. 29 (c) in making this particular order, but in my opinion the order does not fall outside jurisdiction merely because it recites an inappropriate head of power. The fact that two separate orders were made does not appear to me to warrant an inference that the order purporting to be made under s. 29 (c) was or may have been made without regard to the conditions of jurisdiction under s. 29 (b), seeing that the court made both orders for the reason that it found the unions to be in breach of their obligations under the award. Reliance was placed upon the fact that the order now in question in terms enjoined the union, not simply from conduct amounting to non-compliance with the award, but "from committing a contravention of the said Act". These words, however, had no operative effect at all, for the sum total of the obligation created by the order was immediately explained and delimited by words defining the specific conduct enjoined. The words referring to contravention of the Act served no other purpose than that of a description of the legal result of the conduct in which the unions were forbidden to engage, and I have stated my reasons for regarding it as a misdescription of that result. In my opinion, to allow these words to invalidate the order would be to treat as vital to the order a part of it which is inessential to its full operation. Section 29 (b) empowered the court, in the circumstances which it found to exist, to make this order, and in my opinion the objections urged against it afford no ground for prohibition.

[89]

The fourth order called into question in these proceedings was made on 10th July 1950. By it the Arbitration Court imposed upon the prosecutor a fine of £100 for contempt of court consisting in a breach of the first of the two orders above mentioned made on 5th June 1950. Jurisdiction to impose a fine for contempt of court by way of punishment for a breach of an order of the court was rested upon s. 17 (3) of the Act, which makes the court a superior court of record. That provision, in my opinion, would suffice to confer the jurisdiction claimed if there were no implication to the contrary arising from other provisions of the Act; but the Act confers express powers to deal with breaches and non-observances of orders of the court, and in my opinion it should not be taken that, by describing the court as a superior court, the Parliament intended to make available by implication an additional power to deal with the same matters: cf. Anthony Hordern & Sons Ltd. v. Amalgamated Clothing and Allied Trades Union of Australia [1] ; R. v. Wallis; Ex parte Employers' Association of Wool Selling Brokers [2] . The reasons for this conclusion which have been stated by my brother Dixon appear to me to be conclusive. A similar problem arose many years ago in New South Wales, and it was similarly answered: Ex parte Brennan [3] . Speaking of the then Court of Industrial Arbitration, Cullen C.J. said [4] : "a claim that any particular power can be implied from the fact that it is declared to be a superior court must be tested by the special provisions of the Act of 1912. Expressum facit cessare tacitum and where any particular exercise of the power of the Court of Industrial Arbitration is expressly provided for in other parts of the Act, these must be looked at in order to see whether they do not exclude the power sought to be implied from the use of the word "superior" "; and he proceeded to hold, with the concurrence of Pring and Sly JJ., that since the Act made a breach of the court's injunction an indictable offence there was no jurisdiction to deal with it in summary proceedings for contempt. On this point the case is not affected by the decision of this Court in Minister for Labour and Industry (N.S.W.) v. Mutual Life and Citizens' Assurance Co. Ltd. [5] .

At a glance

Court

Decision date

Before

Source

Judgment (91 paragraphs)

Parties