High Court of Australia|1972-11-10|Before: Menzies J, McTiernan J

R v Portus; Ex parte ANZ Banking Group Ltd [1972] HCA 57; (1972) 127 CLR 353 (10 November 1972)

REG. v. PORTUS; Ex parte A.N.Z. BANKING GROUP LTD. [1972] HCA 57; (1972) 127 CLR 353

Barwick C.J.(1), McTiernan(2), Menzies(3), Walsh(4) and Stephen(5) JJ.

The following written judgements were delivered : -

BARWICK C.J. In this matter I have had the advantage of reading the judgment that no industrial dispute existed between the respondent union and the prosecutors and that consequently the Commissioner lacked jurisdiction to make any award in relation to the matter in dispute between them. Although the argument on behalf of the respondent union ranged widely over what were claimed to be practices and procedures commonly followed in Australia and elsewhere, in the long run the question turns on whether the demand made by the respondent union upon the prosecutors gave rise upon its refusal to an industrial dispute within the meaning of that concept as it has been developed in Australia. The argument that consensual practices can expand the jurisdiction of the Conciliation and Arbitration Commission under the Commonwealth Conciliation and Arbitration Act is in my opinion, unacceptable. No doubt there may be occasions on which knowledge of what is done in industry will be of assistance in determining whether what is in dispute really affects the relations of employers and employees, but I find no assistance myself in this case from the knowledge that some employers, whether in Australia or abroad, are prepared with or without remuneration to agree to act as bankers or financial agents for their employees in a wide variety of circumstances. In my opinion, the demand that the employer should pay out of earned wages some amounts to persons nominated by the employee is not a matter affecting the relations of employer and employee. It does not seem to me to advance the matter that the intended payee is the organization registered under the Act of which the employee is a member. (at p357)

2. I agree that the rule nisi for prohibition should be made absolute. (at p357)

MCTIERNAN J. I agree in the judgment of Menzies J. (at p357)

MENZIES J. This is the return of an order nisi for prohibition. The Australia and New Zealand Banking Group Ltd. and five other banks have instituted proceedings against John Hereford Portus, a member of the Commonwealth Conciliation and Arbitration Commission, and the Australian Bank Officials' Association seeking to prohibit further proceedings in what the Commissioner has decided is an industrial dispute between the association and the banks. The ground for prohibition is that the dispute is not an industrial dispute. (at p357)

2. The dispute arises from the banks not accepting a demand made upon them by the association that each bank should, at each pay period, progressively deduct from salaries payable to employees, who are members of the association and have authorized the deduction, an aliquot part of the annual subscription payable by the employee of the association, and should pay to the association monthly the amounts so deducted. (at p357)

3. I have said that a dispute has arisen between the association and the banks, but, of course, it is not every dispute between a union and employers that is an industrial dispute. To fall within that description the dispute must, in the most general terms, be with respect to a matter pertaining to the relations of employers and employees : R. v. Kelly ; Ex parte Victoria (1). It was there decided that a dispute as to trading hours of shopkeepers is not within the sphere of the relations of the employer shopkeepers with any person as employee. (at p358)

4. The Court considered observations in two earlier cases, viz. Australian Tramway Employee's Association v. Prahran and Malvern Tramway Trust (2) - the Union Badge Case - and Federated Clothing Trades v. Archer (3), to the effect that an industrial dispute arises whenever employers refuse union or employee demands to do something that it is within the power of employers to concede and carry out. These earlier cases were greatly relied upon by counsel for the association here. The Court accepted the first decision on the following ground (4) :

"Whether an employer should permit his employee to wear

a particular badge when on duty seems plainly a matter

pertaining to the relations between an employer as employer and

an employee as employee. The question whether an employee

should wear a uniform when on duty would stand on the same

footing."

The Court was more reserved about Archer's Case (3), saying (4) :

"The case of Federated Clothing Trades v. Archer (3) is less

clear so far as it was concerned with the claim by employees

that all garments made by an employer should bear upon a

label the name of the actual manufacturer. It may be

regarded as a border-line case, the justification for the

decision being that the order sought would tend to protect

employees against possible evasions by an employer of the

obligation to pay award rates of wages for work done in the

manufacture of clothing sold by him : see per Isaacs and

Rich JJ. (5) and per Higgins J. (6)." (at p358)

5. These observations show that the earlier decisions have now been put upon a much narrower basis than that propounded by Isaacs and Rich JJ. in their reasons for judgment therein. In Archer's Case, their Honours said (7) :

"Limiting ourselves, however, to the Act as it stands, an

'industrial matter', that is, one that can be made the subject

of an award, must be one that the party of whom it is demanded

can accede to."

"But apart from the principle that it is a claim which the

employer clearly has it in his power to grant, the reasonableness

of it being for the arbitrator's consideration, it is clearly

one which may conceivably affect the employees' wages." (at p358)

6. In the Union Badge Case, the same learned Judges had expressed themselves broadly as follows (1) :

"The true test as between employer and employed is

whether the given matter touches the 'employment', that is,

whether it affects the mutual business relation connecting the

respective parties concerned. Any effect on the work itself is

secondary to the direct object, and even where that effect is

direct, it is only a means to an end, and not the end itself.

The direct object of the claim to wear a badge as a mark of

unionism is to place the workers in a stronger position relatively

to their employers with respect to the conditions of their

employment ; that it has considerable force in that connexion

is admitted, and it is therefore naturally a term of employment

in the true sense if agreed upon ; and if it be so when agreed

upon, it is so when demanded or refused, and when exclusion

from the employment is insisted on as a consequence of

persistence." (at p359)

7. R. v. Kelly (2) insists that something more is requisite than what is stated in the citations which I have just made. The further matter is that the matter in dispute must be one within the sphere of the relations of the businessman as employer with a person as employee. (at p359)

8. R. v. Kelly (2) was applied recently in Reg. v. Commonwealth Industrial Court Judges ; Ex parte Cocks (3) where three members of the Court said (4) :

"It is as well to remember that it is not every dispute between

employers and employees in an industry which constitutes an

industrial dispute within the meaning of the Act ; it must be

a dispute as to an industrial matter or industrial matters as

defined and the subject matter of a dispute will not become an

industrial matter simply because employers and employees

are sufficiently interested in it to dispute about it. Disputes

may, of course, arise between employers and employees with

respect to any practice in an industry but the Act does not

commit to the Commission authority to regulate generally

the manner in which industry shall be carried on ; its authority

is limited to regulating the relationship of master and servant

in the industry and matters which are truly incidental to that

relationship."

Furthermore, there is to be found some criticism (5) of Archer's Case (6). In the last decision a dispute between the employers and the employees as to whether employers should engage subcontractors was held not to be an industrial dispute. (at p359)

9. It is the principle enunciated in R. v. Kelly (1) that must be applied here, not the more general statements to be found in the Union Badge Case (2) and in Archer's Case (3). (at p360)

10. In this case, to bring the dispute within the description of "industrial dispute", counsel for the association rely upon two propositions, one broad and the other narrower, each relating to the imposition upon banks of an obligation to pay union dues out of moneys earned by employees in accordance with authorities given by such employees. First, it was contended that a dispute whether employers should, as a matter of obligation, disburse earned salaries in accordance with the authority of the employee who had earned that salary is an industrial dispute. Alternatively, it was contended that, in any event, a dispute whether employers should, as a matter of obligation, pay out of earned salaries, union dues of any employee who authorized such payment is an industrial dispute. (at p360)

11. Each contention, it seems to me, involves the same critical question, namely, whether the imposition upon an employer of an obligation to make deductions and payments from salary in accordance with the authority of the employee to whom the salary has become due and payable affects the industrial relationship of employers and employees. The identity of the payee does not seem to me to be significant in determining the character of such a dispute, unless, of course, the payment relates to an incident of the employment such as a deduction for and payment to a superannuation fund. In my opinion, the relationship that would be affected by such an obligation is a financial relationship of debtor and creditor arising from the earning of salary, not the industrial relationship in which the salary has been earned and has become payable. What is sought, in reality, is to make the employer the financial agent of the employee for the benefit of the association. (at p360)

12. It seems to me that the obligation sought to be imposed upon the banks is of the same character as one requiring the banks to open a deposit account for employees to pay earned salaries into that account and to disburse moneys in the account according to directions of the employees. (at p360)

13. In my opinion, the facts before the Court disclose a dispute which is not an industrial dispute. It is, in truth, a dispute between the association and the banks about whether or not the banks should perform for the association a dues-collecting service. Indeed, as an indication that this is so, it is pertinent to observe that in places where what is called the "check-off" system does operate, unions who have members' dues so deducted and paid not infrequently pay the employers a commission for those services. (at p361)

14. For the above reasons, I consider that prohibition should go. (at p361)

WALSH J. The Australian Bank Officials' Association (the association) is an association of employees registered under the Conciliation and Arbitration Act 1904-1972 (Cth) (the Act). It is a party to the Bank Officials' (Federal) (1963) Award and the prosecutors in these proceedings are also parties to that award. (at p361)

2. In June 1971 the association served a letter of demand upon the prosecutors and other employers bound by the award, in the following terms :

"The Australian Bank Officials' Association demands of

you that in respect of each and every member of the Association

in your employment who authorises you so to do, you deduct

the subscriptions payable by such member to the Association

from such member's salary in the manner set out hereunder : -

(a) in the case of a member whose salary is paid weekly

by deducting an amount per week equal to 1/52nd of

the annual subscription payable by such member to

the Association.

(b) in the case of a member whose salary is paid fortnightly

by deducting an amount per fortnight equal to 1/26th

of the annual subscription payable by such member

to the Association

and the Association further demands of you that all such

amounts so deducted be paid monthly to the Australian Bank

Officials' Association.

You are required within fourteen days of the date hereof

to notify the Australian Bank Officials' Association of your

acceptance of this demand." (at p361)

3. Subsequently the matter came before a commissioner holding office as a member of the Conciliation and Arbitration Commission. It was submitted that the dispute alleged to have arisen from the demand and the failure to accept it was not an industrial dispute within the meaning of the Act and that the commissioner had no jurisdiction, but the commissioner held that he had jurisdiction to deal with the matter. The prosecutors obtained an order nisi for a writ of prohibition directed to the commissioner and to the association prohibiting them from proceeding in the matter upon the ground that there was no jurisdiction. This is an application to make absolute that order nisi. (at p361)

4. The question to be decided is whether or not the dispute arising from the demand is a dispute as to an "industrial matter". In s. 4 of the Act the definition of "Industrial matters" is (in part) in the following terms :

"'Industrial matters' means all matters pertaining to the

relations of employers and employees and, without limiting

the generality of the foregoing, includes -

(a) all matters or things affecting or relating to work done

or to be done ;

(b) the privileges, rights and duties of employers and

employees ;

(c) the wages, allowances and remuneration of persons

employed or to be employed ;

. . .

(h) the mode, terms and conditions of employment ;

. . .

(1) any custom or usage in an industry, whether general or

in a particular locality ;

. . .

(n) any question arising between two or more organizations

or within an organization as to the rights, status or

functions of the members of those organizations or of

that organization or otherwise, in relation to the

employment of those members ;

. . ." (at p362)

5. It was contended for the prosecutors that the matter in dispute is not a matter pertaining to the relations of employers and employees. It was said that the relationship of employer and employee is not affected by or involved in the demand for the deduction by the employers of subscriptions due to the association by its members. (at p362)

6. In R. v. Kelly ; Ex parte Victoria (1), the Court was concerned with a question whether provisions relating to the trading hours of certain shops were within the scope of the definition of "industrial matters". The Court said (2) :

"The words 'pertaining to' mean 'belonging to' or

'within the sphere of,' and the expression 'the relations of

employers and employees' must refer to the relation of an

employer as employer with an employee as employee."

"Provisions with respect to trading hours may affect the

turnover of shopkeepers who employ persons and so indirectly

affect their ability to pay award rates, and this state of affairs

may in turn affect the relations of those shopkeepers and their

employees. But this is the most that can be said, and it is

obviously not enough. It shows only the possibility of an

indirect, consequential and remote effect upon the relations of

the last-mentioned persons."

"A matter does not become an 'industrial matter' or the

subject of an 'industrial dispute' simply because it is a matter

with respect to which persons who are employers and employees

are disputing." (at p363)

7. In Reg. v. Commonwealth Conciliation and Arbitration Commission ; Ex parte Melbourne and Metropolitan Tramways Board Barwick C.J. said (2) :

"To create an industrial dispute, the relationship of employer

and employee must be directly involved in the demand.

Demands which in themselves do not do so will not be

industrial in the relevant sense, however much the relationship

of employer and employee may be indirectly affected by the

result of acceptance or refusal of the demand : see Clancy v.

Butchers' Shop Employes Union (3) ; R. v. Kelly ; Ex parte

Victoria (4) ; Reg. v. Findlay ; Ex parte Commonwealth

Steamship Owners' Association, per Dixon C.J. (5)."

In the same case Taylor and Menzies JJ. (6) adopted and applied passages from the judgment in R. v. Kelly ; Ex parte Victoria (4) to which I have already referred. Statements similar to those I have quoted were made in the later case of Reg. v. Commonwealth Industrial Court Judges ; Ex parte Cocks (7). (at p363)

8. In the present case the acceptance and application of the foregoing expositions of the meaning of the general words in the definition of "industrial matters" lead, in my opinion, to the conclusion that the matter in dispute is not an industrial matter. (at p363)

9. It is true that whilst the Court has laid stress on the requirement that the relationship to which an industrial matter must pertain is that between an employer as employer and an employee as employee, a narrow view is not to be taken of what may arise out of that relationship or may be sufficiently connected with it to bring a demand within the description of an industrial matter. In Reg. v. Findley ; Ex parte Commonwealth Steamship Owners' Association Dixon C.J., after referring to what had been stated in R. v. Kelly ; Ex parte Victoria (8) as to the insufficiency of the possibility of "an indirect, consequential and remote effect" upon the relations of employers and employees, went on to say (9) :

"But our conception of what does arise out of the relations

or is connected with them includes much that is outside the

contract of service and its incidents and the work done under

it."

His Honour said that in the case then being considered by the Court, the connexion between the employment and the purpose of the payment which was the subject of a claim was "not remote or tenuous" (1). To those words the Commissioner in the present case attached importance, in reaching his finding that there was a sufficient connexion between the matter before him and the relationship of employer and employee. But, in my opinion, a provision for the payment by employers of subscriptions due by their employees to their union has no real connexion with the relations of the employers and the employees. The payment of subscriptions is a matter pertaining to the relationship between the employees and their union. In my opinion it is not a matter with which the employer, as such, has any concern and it does not become an "industrial matter" merely because the association makes a demand upon the employers to which they are not willing to accede. (at p364)

10. I proceed to consider the principal submissions made on behalf of the association. In one part of counsel's argument, the features of the demand which served to bring the matter within the scope of the definition were said to be that the payments sought are of a kind commonly made by employers on behalf of employees and that they are payments to an organization of employees, providing an efficient and convenient method for the collection by it of subscriptions from its members. In another broader submission, those features of the claim were not regarded as essential. I shall deal first with this more far-reaching submission. It was contended that whatever be the particular purpose to which an employer is asked to apply part of the wages earned by an employee, a claim made by the association on behalf of its members, or of some of them, that payments be made by the employers to discharge obligations of an employee, is of an industrial character and a dispute about such a claim is an industrial dispute within the meaning of the Act. One reason advanced in support of that contention was that the matter was one which concerned the salary or remuneration of the employees. If a demand that part of the remuneration to which an employee becomes entitled from time to time in accordance with the terms of his employment should be paid out at his request to meet any obligation he may wish to discharge, for example, in payment of rent to his landlord, in payment for goods supplied by shopkeepers, or in payment to his wife of money for her maintenance, could properly be described as a demand concerning the mode in which his salary is to be paid, no doubt it would follow that this would be an industrial matter. But, in my opinion, such a demand cannot be so described. Payments of the kind that I have mentioned have the character of payments made by the employee himself, out of funds to which he has become entitled. They are akin to payments made by a banker on behalf of a customer or by a friend who, at the request of a man to whom he owes money, pays it to a third party instead of paying it directly to his creditor. In my opinion, it is outside the scope of "matters pertaining to the relations of employers and employees" that an employer should be required to discharge the personal obligations of those whom he employs. (at p365)

11. It was said, also, in this part of the argument for the association, that a demand for payment by the employers in discharge of obligations of the employees constitutes a demand for a service or amenity, which the employers are asked to provide for those of the employees who desire to take advantage of it and, as such, is within the general words of the definition and is within one or more of the specific paragraphs, such as, par. (b), par. (c) and par. (h). I am unable to accept this submission. In my opinion the view should not be accepted that whenever a demand is made upon employers to grant to their employees some benefit or privilege not previously enjoyed and it is sought to have the enjoyment of that benefit or privilege given as a matter of right, either to all the employees or to those who wish to exercise it, this will give rise to an industrial dispute. Although support for such a view may be found in observations made in Australian Tramway Employes Association v. Prahran and Malvern Tramway Trust (1) and in Federated Clothing Trades v. Archer (2), the judgments in more recent decisions of this Court deny that such a general proposition should be accepted. It is not every demand upon employers that can give rise to an industrial dispute. It is necessary to have regard to the character of the demand. It may be convenient for an employee to be saved the trouble of paying his debts and to have them paid on his behalf by his employer from money that has become due to the employee. But, in my opinion, this is not a benefit or privilege of a kind which has any relevant connexion with the relationship of employer and employee. It would be unreal, in my opinion, to treat the benefit of such an arrangement, however convenient it may be to an employee, as being part of the remuneration which he receives for his services. (at p366)

12. In the narrower alternative argument presented on behalf of the association, reliance was placed upon the facts that the deductions and payments demanded are, according to the submission, of a common kind and that benefits are obtained thereby by a registered union. As to the first of these features, it was submitted that in determining at a given time what comes within the scope of the relationship of employer and employee, it is important to take account of what is commonly done by employers and employees. If it appears that to a significant extent a particular matter has come to be included within the relationship of employer and employee, that matter may be found to be one which "pertains" to the relations of employers and employees. It was submitted that the question is one of degree and that in resolving it regard may be had not only to what is commonly done in Australia, but also to what occurs in other parts of the world. In an affidavit filed on behalf of the association it was stated that the system of employers making regular deductions from the salaries of employees in respect of their subscriptions to their employee organizations and paying those amounts to the organizations is widely followed in Australia and overseas and that the use of the system has been increasing substantially in recent years. Some details are given in exhibits attached to the affidavit of the extent to which this system is used in certain areas of employment. To the affidavit there were exhibited also an extract from the report of the Royal Commission on Trade Unions and Employers' Associations (1965-1968) (Cmnd. 3623) of which Lord Donovan was chairman and an article published in the International Labour Review (vol. 99, no. 5) in May 1969. (at p366)

13. It has been submitted on behalf of the prosecutors that none of this material is admissible in these proceedings and that, in any event, it does not establish that the practice has become a regular and normal part of the terms of employment, either in industry generally, or in the banking industry in particular. As much reliance was placed upon this material by the association and as its relevance is denied by the prosecutors, I shall refer to some of the information disclosed by it. In the report of the Royal Commission it is stated that it was estimated in 1968 that such arrangements affected about one trade union member in five, most of these being employed in the public sector. In the article in the International Labour Review it is stated that until recently the practice was confined mainly to the United States of America but has since spread to many countries. It is usually incorporated in collective agreements. In some countries there is legislation providing for such deductions but in some other countries there is legislation prohibiting them. In my opinion none of this material as to the practice in overseas countries and as to the extent to which it is followed is of assistance in deciding the question before the Court. We are concerned with the meaning and the application of the provisions of a law of the Commonwealth Parliament. It has to be interpreted bearing in mind the nature and extent of the power conferred by s. 51 (xxxv.) of the Constitution. The question is whether there is a dispute as to a matter which is "industrial", within the meaning of the Act as so interpreted. If it be accepted that developments may take place in the course of time as to the range of matters that can be described as "industrial", these must be, in my opinion, developments which occur in Australia and affect the relations between employers and employees in this country. (at p367)

14. The material before the Court which deals with Australian employers and employees is not a complete survey of the current practices in all areas of employment. It indicates that deductions are made by employers from the wages and salaries of a large number of employees, particularly those employed by governmental or semi-governmental departments or statutory authorities and corporations. But it indicates, also, that the employees from whose wages such deductions are made constitute a minority of employed persons. In the field of banking, the practice is followed by the Commonwealth Banking Corporation in relation to some 20,000 employees, but so far as members of the association are concerned, it applies only to employees of the State Savings Bank of Victoria, the Rural Bank of New South Wales and two smaller banks, who make up about one-fifth of the membership of the association. (at p367)

15. The premise upon which this part of the argument for the association depends is that if the making of agreements of the kind now under consideration between employers and employees or their unions has become common, that is a sufficient reason for regarding a demand upon employers, who are unwilling to make a similar agreement, as an industrial matter. If the premise were to be accepted as correct, it may be doubted that the material placed before the Court has established facts which would warrant the conclusion for which the association contends. But, in my opinion, a consideration of what is involved in the subject matter of the agreements upon which reliance is placed shows that the premise ought not to be accepted. So far as appears from the material before the Court which deals with Australian conditions, what has occurred in regard to deducting subscriptions from wages and paying them to the union has been that some employers have assented, no doubt at the request of the unions concerned, to the making of such deductions from the wages or salary of any employee who requests and authorizes the employer to do so. There has not developed a system by which the making of the deductions is introduced as a term of the employment of each of the employees of those employers who have agreed to make the deductions. The practice is not applied to all employees nor to all who belong to a particular union. From the employer's point of view, there is not an obligation owed by the employer to each employee because he is an employee. The making of the deductions depends upon an authority given by an employee, who is free to withdraw the authority if he wishes to do so. The system should, therefore, be regarded, in my opinion, as pertaining primarily to the relationship between an employee and his own union, from which relationship arises the obligation which is discharged by the payment made to the union by the employer. In so far as the practice also involves any relationship between an employee and his employer, this is not, in my opinion, a relationship between the employer as employer and the employee as employee, but is one in which the employer acts as agent for an employee in the making of a payment at his request and on his behalf from money to which he has become entitled. I am of opinion, therefore, that having regard to the character of the practice which some employers have agreed to follow and to the character of the demand made in the present case, the fact that a considerable number of employers have so agreed cannot support a conclusion that the matter in dispute pertains to the relations of employers and employees. The undertaking by some employers of an obligation of a kind which is not, in my view, within the scope of the relationship of employer and employee cannot have the consequence that such an obligation may be imposed upon unwilling employers, upon the basis that their failure to assume the same obligation has given rise to an industrial dispute. (at p368)

16. It was submitted that it is in the interests of employees, in their relations with employers, to have an efficient organization to represent them and to initiate and conduct on their behalf negotiations and industrial processes for the improvement of the terms and conditions of their employment. Then it was said that the system of deduction of subscriptions and payment to an organization is of great advantage to it, making it more effective in carrying out its important part in the industrial field. It was said that the payments strengthen the financial position of the organization, which is the link between the employer and employee in the processes of obtaining alterations to terms and conditions of employment. It was submitted that these considerations give strong support to the view that a demand for such payments gives rise to an industrial matter. (at p369)

17. It has long been recognized that organizations of employers and of employees have an important part to play in carrying out the purposes of the Act and in representing their members before the Tribunals established in aid of those purposes : see Jumbunna Coal Mine N.L. v. Victorian Coal Miners' Association (1) and Federated Ironworkers' Association of Australia v. The Commonwealth (2). But, in my opinion, the recognition of the importance of the functions of unions does not warrant a conclusion that anything which serves to benefit one of them and to give it additional strength, by increasing its financial stability or otherwise, is to be regarded as an industrial matter within the meaning of the Act. There are passages in the joint judgment of Isaacs and Rich JJ. in Australian Tramway Employe's Association v. Prahran and Malvern Tramway Trust (3), which appear to give support to such a conclusion. But the decision in that case is not an authority for any such far-reaching proposition, and upon the view of that decision adopted in R. v. Kelly; Ex parte Victoria (4), it does not assist the association in the present case. (at p369)

18. I am of opinion, therefore, notwithstanding the arguments that have been advanced on behalf of the Association, that having regard to the terms of the definition in the Act of "industrial matters", as they have been interpreted in judgments to which I have referred, the dispute with which the Court is concerned is not a dispute as to an industrial matter. I have dealt mainly with the general words of the definition. But I think I have indicated sufficiently my reasons for holding, as I do, that the matter does not fall within any of the particular paragraphs to which reference was made during the hearing. I do not think that any reliance was really placed upon pars. (1) or (n) and I am of opinion that it is clear that they do not apply to the matter now in dispute. As to pars. (a), (b), (c) and (h), I think that I need not add anything to the reasons I have already given. (at p369)

19. In my opinion the order nisi should be made absolute. (at p370)

STEPHEN J. In these proceedings the Australia and New Zealand Banking Group Ltd. and five other trading banks seek to prohibit further proceedings before a commissioner of the Commonwealth Conciliation and Arbitration Commission, in which they are respondents, on the ground that the dispute with which those proceedings are concerned is not an industrial dispute and accordingly, is not within the jurisdiction of the Commission. (at p370)

2. The dispute arose out of the service of a written demand by the Australian Bank Officials' Association upon these six banks and other employers bound by the Bank Officials' (Federal) (1963) Award, to which award the association is also a party. The substance of the demand by the association was that the banks should, in respect of each member of the association in their employ who authorized them to do so; deduct an appropriate fraction of that member's annual subscription payable to the association from his weekly or fortnightly salary and pay to the association each month the amount so deducted. (at p370)

3. The dispute came before the commissioner for hearing as an industrial dispute pursuant to Div. 1 of Pt III of the Conciliation and Arbitration Act 1904-1971; it was then submitted that the commissioner lacked jurisdiction, the dispute not being an industrial dispute since it did not relate to an industrial matter, but this submission was rejected, the commissioner concluding that he did have jurisdiction. It is in those circumstances that it is now sought to prohibit the commissioner and the association from further proceeding with the hearing. (at p370)

4. In my view, the commissioner lacks jurisdiction. The commissioner is here seeking to exercise a statutory jurisdiction which is expressly confined to the settlement of industrial disputes, that is, disputes "as to industrial matters". That phrase is defined in s. 4 (1) of the Act as meaning "all matters pertaining to the relations of employers and employees" and as including, but without limiting the generality of those opening words, a large number of particular subject matters which are then set out. (at p370)

5. Uninstructed by authority and looking simply at the definition of "Industrial matters" in s. 4 (1) of the Act, I would conclude that this is not such a dispute and would do so for the reason that it does not appear to me to concern either of the broad aspects with which the relations of employers and employees are concerned, namely the performance of work by the employee and the receipt of reward for that work from the employer. I disregard, as presently irrelevant, the specific inclusion, in par. (p) of the definition of "Industrial matters", of reference to demarcation disputes, a subject matter perhaps difficult to fit into the concept of the employer-employee relationship and which may owe its inclusion to pre-federation industrial history and usage - R. v. Commonwealth Court of Conciliation and Arbitration; Ex parte Australian Paper Mills Employees' Union (1). That exception apart, the remaining paragraphs of the definition all reflect a direct concern with one or other of the two foregoing aspects of "the relations of employers and employees". (at p371)

6. Those two aspects may frequently overlap, so that it will often depend upon the particular viewpoint whether a matter is to be regarded as concerned with performance of work or with reward for work performed. The present dispute, however, is clearly not concerned with that aspect of the relationship affecting the performance of work by the employee. Is it, then, relevantly related to the other aspect, the receipt of reward from the employer? (at p371)

7. Not every demand for reward for work performed will render the subject matter of the demand an industrial matter. The matter demanded must always pertain to the employer-employee relationship so that the subject matter of demands by either party which are, for example, of a political or social or managerial nature will not be industrial matters. The necessary quality of a subject matter demanded which is concerned with reward for work performed is, I think, that it be, of itself, inherently associated with the relationship of employer and employee and not with some other type of relationship. Reward by way of remuneration of course conforms most clearly to such a test; the payment of wages or salary is inherent in the relevant relationship. Likewise demands for, for instance, paid annual holidays or retirement benefits (disregarding, for present purposes, any consequences arising from the fact that awards are necessarily of limited duration) would, I think, satisfy this requirement; even if the relationship existing between parties to a demand of this character was unknown it would, nevertheless, from its very nature, be seen to be associated with some employer-employee relationship. (at p371)

8. There is, in my view no necessary connexion between the service which the association, on behalf of employees, demands should be rendered by the employer banks for their employees and the relationship between them of employer and employee. The subject matter of the demand is concerned with a service to be performed by the employer which, viewed in the abstract and without knowledge of the existing relationships of the parties to the demand, does not bear any appearance of association with the employer-employee relationship. This is because the demand does not seek to operate within the sphere of that relationship but instead would create a new relationship between the parties, in which the employer is agent or debtor and the employee is principal or creditor. (at p372)

9. The matter may, perhaps, be tested in this way. At present the employing banks pay employees their remuneration periodically, each week or fortnight, and that particular phase of the relationship is thus concluded between them. The employee has performed his work and the employer has remunerated him in respect of it. The relationship between bank employees and their employer is, of course, a continuing one involving other obligations on the part of the employer which are not thus completely performed in weekly or fortnightly cycles ; annual leave is an example. But with these we are not here concerned since the present demand is sought to be attached to and form part of the regular weekly or fortnightly cycles of work and payment therefor. If, in the existing circumstances of employment, it was demanded of the employer that it accept back from employees a part of the remuneration paid, retain it for a period of time and then pay it over to a third party, the association, such a demand would be seeking to create a new, distinct relationship between the employer and its employees, having no connexion with the pre-existing employer-employee relationship. The fact that the present demand is made to operate at a slightly earlier stage, before salary is in fact paid over to employees, thereby obviating one step in the imaginary demand I have postulated, that of the acceptance of money back from employees, does not appear to me to convert a transaction foreign to the relationship of employer and employee into one which pertains to that relationship. (at p372)

10. There may, no doubt, be instances where the subject matter of a demand appears to have no connexion with the employer-employee relationship but is nevertheless ancillary to a matter forming part of that relationship and is, for that reason, an industrial matter. This cannot, however, be said of the present case. (at p372)

11. Accordingly, authority apart, I would not regard the present demand as related to an industrial matter nor the dispute as one in relation to which the Commission has jurisdiction. In most previous cases coming before this Court on this issue the party denying jurisdiction has contended that the matter in dispute is not an industrial matter because it is within the different realm of managerial concern. However, as Australian Federation of Air Pilots v. Flight Crew Officers Industrial Tribunal (1) demonstrates, there may be spheres other than managerial which are equally distinct from that of the industrial, employer-employee relationship. This is such a one. (at p373)

12. A reading of the authorities makes it clear that as the Act has been interpreted, at least since R. v. Kelly ; Ex parte Victoria (2), the demand in the present case should not be held to relate to an industrial matter ; in this regard I have had the advantage of reading the reasons for judgment of my brother Walsh, in the course of which are discussed the precedent cases in this Court, and I agree with his review of those cases, with his analysis of the submissions of counsel on behalf of the association and generally with the conclusions which he expresses and do not wish to add anything thereto. (at p373)

13. In my opinion the order nisi should be made absolute. (at p373)

Rule nisi for prohibition made absolute. The respondent organisation to pay the prosecutors' costs.

Conciliation and Arbitration Act 1904

R v Portus; Ex parte ANZ Banking Group Ltd [1972] HCA 57;

At a glance

Court

Decision date

Before

Source

Judgment (82 paragraphs)

R v Portus; Ex parte ANZ Banking Group Ltd [1972] HCA 57; (1972) 127 CLR 353 (10 November 1972)

Parties

Legislation Cited (1)

Cases Cited (1)