R v Portus; Ex parte McNeil

High Court of Australia|1961-07-01|Before: Windeyer JJ, Fullagar J

High Court of Australia Dixon C.J. McTiernan, Kitto, Taylor and Windeyer JJ. R v Portus; Ex parte McNeil [1961] HCA 50

Aug. 15 Dixon C.J., Kitto, Taylor and Windeyer JJ.

This is an order nisi for a writ of prohibition directed to Mr. Commissioner Portus. The order nisi calls upon Qantas Empire Airways Ltd. to show cause why the writ should not issue. The prosecutor is one Leonard McNeil who is an airline pilot in the employ of that company and who is a member of the Australian Federation of Air Pilots, a voluntary association which is not registered as an organization under the Conciliation and Arbitration Act 1904-1960 Cth. The tenor of the writ of prohibition sought by the order nisi is to prohibit the Commissioner (and of course the company) from further proceeding or dealing with an alleged industrial dispute between Qantas Empire Airways Ltd. and the air pilots in its employ, a dispute numbered in the Conciliation and Arbitration Commission C. No. 280 of 1961. On 20th June 1961 the learned Commissioner found that an industrial dispute existed between Qantas Empire Airways Ltd. and its pilots who since 15th June 1960 had been in the employ of that company and were on 20th June 1961 still in the employ of that company and who during that whole period had been and were still members of the Australian Federation of Air Pilots, and that the subject matter of the dispute was the matters referred to in certain specified exhibits. By a notice dated 21st June 1961 and expressed to be directed to air pilots, so described, they were notified that the industrial dispute, which was more particularly described in the notice but still by reference to the exhibits, would be heard in Melbourne on 28th June 1961. The Commissioner made an order dispensing with personal service of the notice; the order declared that service of copies upon three officers of the Federation was sufficient service. On 26th June 1961 the prosecutor applied to Fullagar J. for this order nisi for prohibition which his Honour granted on the following day.

The definition of industrial dispute contained in s. 4 (1) of the Act says that the expression shall include a dispute in relation to employment in an industry carried on by or under the control of the Commonwealth or an authority of the Commonwealth whether or not the dispute extends beyond the limits of any one State. "Industry" is defined to include an undertaking of employers and a branch of an industry. Qantas Empire Airways Ltd. is a company incorporated under the company legislation of Queensland and all the shares except seven are held by the Commonwealth: the seven shares are held by nominees of the Commonwealth. Under the articles of association the Minister of State for Civil Aviation has the sole right of appointing the directors of the company. The undertaking of the company consists of extensive international airlines and it is in connexion with that undertaking that the pilots or the Australian Federation of Air Pilots are said to be in dispute with Qantas Empire Airways Ltd. It might be suggested that, having regard to the facts stated, the undertaking formed an "industry carried on under the control of the Commonwealth" within the definition and that all that remained was to consider whether pilots were in dispute with their employer. However counsel for Qantas Empire Airways Ltd. declined to put his case on that basis. His contention in showing cause against the order was that an industrial dispute existed extending beyond the limits of any one State, as found by the Commissioner. Prima facie this raises a question of fact. It is true that s. 60 (2) of the Act purports to give a conclusive effect in all courts to a determination or finding that such a dispute exists made by the "Commission", a word which may include the Commissioner exercising the function in which he made the finding: see s. 6 (1), the definition of the Commission in s. 4 (1) and ss. 23, 28, 29, 32 and reg. 17 of the Conciliation and Arbitration Regulations. But of course the existence of an industrial dispute extending beyond the limits of any one State is under the Constitution a jurisdictional fact which on prohibition cannot be controlled by the finding of the tribunal against which the writ of prohibition is sought. Very briefly stated the material facts appear to be as follows. An organization of employees registered under the Act existed, called the Australian Air Pilots' Association. An agreement, certified under s. 31, with this organization, called the Airline Pilots' Agreement 1956, governed the salaries and conditions of employment of the air pilots employed by Qantas Empire Airways Ltd. and also those of other companies by which airlines are conducted in Australia. The members however resigned from this organization and formed the Australian Federation of Air Pilots as a voluntary association not registered under the Act. This took place in 1959 and in a letter dated 6th August 1959 signed by the Manager of the Federation the latter informed the Chairman of the Australian Airlines Operators' Association of the number of the members of the Federation in the employ of each of the members of the Operators' Association, and proffered an assurance that the Federation's elected officers were authorized to act in all matters in a manner approved by the elected governing body and, with its approval, to make decisions binding on the individual membership. The Constitution and By-Laws of the Federation contain a very full and detailed charter for setting up the body, defining its purposes, establishing its committees and officers and regulating the conduct of its affairs. One of its principal objects is stated to be to protect and further the interests of air pilots and to safeguard and improve the interests and rights of members of the Federation, and another includes the improvement of the terms and conditions of their employment. The officers include a President, a Manager and a Director Industrial as well as a Treasurer-Secretary and other usual officers. The officers are elected by secret ballot at a Convention which is the supreme authority and is held annually. But there is an Executive Committee consisting of the office-bearers of the Federation and a representative of each Branch Committee elected by the Branch Committee. The Executive Committee controls the general management and business affairs of the Federation. The Manager, who is appointed by the President from candidates chosen by the Convention, is empowered among other things to carry out all routine business of the Federation necessary for the furtherance of the objects of the Federation in accordance with the rules. The Director Industrial is to "function in co-operation with the President and the Manager in all matters particularly appertaining to the industrial affairs of the Federation" and is to assist to his utmost in the pursuit of the industrial objectives and policies laid down by the Convention and the Executive Committee. Prior to the Annual Convention in each year the Executive Committee is required to prepare suggested variations of the employment contract for negotiation. It must appoint officers to represent the Federation at all negotiations. They must report twice a week to the Executive Committee. The President, Director Industrial and the Manager are the authorized officers to sign employment contracts on behalf of the membership and their signature is to be binding on the membership concerned. A branch of the Federation is deemed to exist in every State and in the Territory of Papua and New Guinea, when fifteen members are permanently domiciled in the State or Territory.

Qantas Empire Airways owns and operates various types of aircraft which are engaged in a number of definite international services of the company. At the material time it employed over two hundred and eighty pilots whose duties are to fly planes upon the routes involved. The terms of employment require the pilot to serve the company in any part of the world where the company operates. At any given time pilots are temporarily residing for the purpose of their duties or stopping over in different States of the Commonwealth as well as elsewhere.

On 16th June 1960 the Federation by two of its officers put forward for the consideration of Qantas Empire Airways Ltd. a lengthy document containing elaborate proposals for a new salary structure for pilots and what was called "a break down" of the standards governing the salaries of the higher grades for the purpose of computing or determining the salaries of lower ranks. On 31st August 1960 a proposed agreement was likewise put forward. The document contained an introductory statement of the industrial purpose of the Federation and the opening words of the agreement made it clear enough that its proposed application was not only to present but also to future employees of the company, being members of the Federation. Negotiations between officers of the Federation and officers of Qantas Empire Airways Ltd. proceeded and meetings or communications took place in August, November and December 1960 and March, May and June 1961. The Manager of the Federation took a leading part, as did the President and the Chairman, and certain officers of the Overseas Branch.

In May 1961 a document was given on behalf of the Federation to the company stating a somewhat different proposal rejecting part of the remuneration for captains and first officers and dealing generally with their salaries. The company gave the officers of the Federation counter proposals in writing on various points, in November 1960 and March 1961. At length on 6th June 1961 during discussions between these officers the Manager of the Federation broke off the negotiations and made the following statement: "We believe we have gone as far as we can go to find a way around this problem. We would like to inform you that the Federation is currently taking a secret ballot concerning the question of executive pilots and the action that should be taken on that particular problem. It is proposed that a similar ballot will be taken with respect to this problem of retrenchment of redundant pilots. We will convene a meeting of the Governing Body of the Federation next week at which the question of executive pilots and redundancy will be considered and a decision made on an industry basis. The action which will follow any decision made may be taken on a selected basis or an industry basis. Finally, the Federation will go to extreme limits to combat both these problems. There is no point, in our view, in discussing matters concerned with the proposed Contract of Employment negotiations. We would issue a warning that no attempt should be made by the Company to alter the existing employment conditions. We will be in touch with you." In fact a circular which the Manager signed as "By Order of Convention and Executive Committee" had been sent to all members: it contained a lengthy statement of the Federation's complaints concerning the negotiations and the subject of the negotiations, and a ballot paper asking two questions with respect to action and "direct action". There then followed on 9th June 1961 a compulsory conference summoned by the Commissioner. At the opening, the Commissioner announced that he had summoned it on notifications from Ansett A.N.A. and T.A.A. - their cases depend on separate considerations - and that on his own motion by reason of what he read in the Press about a dispute with Qantas Empire Airways Ltd. he had made that the subject of the conference also. The company had in the meantime made a notification and was represented by counsel. Mr. B. I. Crofts who is the Manager of the Federation, Captain Holt who is the President and Captain W. Keough who is another officer, appeared in response to the summons but said they did so personally and without authority to represent the pilots or the Federation. The position thus taken up was confirmed by a formal letter of objection sent by the solicitors for Mr. Crofts and the Federation.

For the prosecutor it is urged that the materials upon which the conclusion was reached by the Commissioner that an industrial dispute existed between Qantas Empire Airways Ltd. and its pilots, being members of the Federation, disclose no industrial dispute extending beyond the limits of any one State. The same materials are before this Court and accordingly it was argued that this Court should hold that no such dispute exists and that the Commissioner has no authority under the Constitution to proceed. In support of this argument several reasons are assigned. First it is said that independently of the question of parties to the dispute, there was no industrial matter in contest. Proposals for discussion and negotiation were put forward and different views were adopted but there was not, it was said, a distinct issue or disagreement; there was, so to speak, no litis contestatio. The answer to this lies in the facts: there was a very distinct disagreement about a whole subject matter backed by a preliminary resort to or threat of industrial dislocation. An industrial dispute may exist without a formulation of a definite and clear cut demand followed by an equally definite and clear cut refusal. Familiarity with paper disputes consisting of carefully drawn logs of demand and general refusals has perhaps led to a somewhat artificial conception of what amounts to an industrial dispute. But an attempt to gain higher rewards by means first of negotiation and then of pressure and threatened dislocation is no less an industrial dispute because the exact stand taken by the respective parties may be less definite and precise than a paper log would be apt to make it.

It was then said, and this was the principal contention, that the alleged disputant on the side of the pilots or the body making the demand was but a voluntary association lacking legal personality and incapable in itself of being a party principal. This argument assumed that the pilots themselves were not the disputants, were not the parties principal. To the suggestion that that was their true role, it was answered first that they did not themselves assume the role, next that the actual persons dealing with Qantas Empire Airways Ltd. on behalf of the Federation were not the duly authorized agents of the air pilots to bring them into dispute with the company and thirdly that the true meaning of what passed between them and the company was that the voluntary association was attempting to assume the representational character which organizations are accustomed to take, and in any agreement that might result (or for that matter any award, notwithstanding that no award would be sought) the association contemplated that it would be the party principal.

Now the background to this contention lies in the doctrine ultimately developed in this Court of the representation by organizations of groups or classes in industrial conflicts, with the consequence that the organization is the party principal in the dispute that results and not the present or future members of the organization. The history and the effect of the doctrine are explained at length in Reg. v. Dunlop Rubber Australia Ltd.; Ex parte Federated Miscellaneous Workers' Union of Australia [1] . For the purpose of understanding the prosecutor's contention and therefore this judgment, it is perhaps necessary to read closely the discussion which begins with the second paragraph on p. 80 and ends with the first paragraph on p. 85, but it is enough here to incorporate the passage by reference without setting it out. It is necessary however to repeat part of the final paragraph; for it will show upon what the contention depends: "It seems implicit in the principle, in the forms in which it has been stated and restated, that you cannot have a body, whether incorporated or not, standing in the place of the industrial group or class and formulating demands in its interest unless that body occupies such a place because it is constituted for the purpose and is recognized as representing the group or class. That may mean that it must have the recognition of the industrial law; but in the present case the distinction between legal recognition of its capacity and practical or customary recognition does not arise." [2] .

(1957) 97 C.L.R. 71, at pp. 80-85. 2. (1957) 97 C.L.R., at pp. 84, 85.

It is argued that for want of "recognition of the industrial law", as representing the group or class, the voluntary association cannot be the party principal in a dispute in which a fluctuating or amorphous group is to be represented. A reason is advanced in support of this conclusion, namely that the voluntary association, so it is said, cannot as an unincorporated body be made the object of a binding agreement or award placing obligations on the body as distinguished from its members. All this may, for the purposes of this case, be put on one side with perhaps the remark that if you do get a real dispute manifesting the desires or the demands of an indefinite group in industry, the difficulty or even the impossibility of identifying all the disputants could not take the case out of the constitutional power conferred by s. 51 (xxxv.). The reason why the argument described may be put on one side is that in point of fact the dispute found by the Commissioner to exist, the settlement of which he has taken under his authority, is not with the voluntary association as a party principal representing an indefinite and changing industrial group: it is a dispute with defined existing employees. This appears quite clearly from the notice fixing the time and place for hearing of the industrial dispute which is directed to air pilots in the employ of Qantas Empire Airways Ltd. between certain dates, that is to a completely closed class of definite and existing persons. It is addressed to them severally and each is informed that he is alleged to be a party to the industrial dispute. The order nisi for a writ of prohibition takes that up and the tenor of the writ sought confines it to a dispute of that nature. The argument however denies that the air pilots were themselves as persons in dispute with Qantas Empire Airways Ltd. It is said that the officers of the Federation had no authority to act on their behalf. The rules of the Federation are perhaps not very clear about the extent of authority possessed by the officers but, if they are read as a whole, the rules would appear to mean that the members place the making of demands on their behalf in the hands of the officers; and if so that is enough. However when you find that a ballot for direct action is being taken by the officers, it is very difficult to suppose that in the steps they took antecedently they did not act with the knowledge and consent of a sufficient number of their members to make their demands the foundation of an industrial dispute. It may be that there were pilots, it may be indeed that there were many pilots, prepared to disavow their action. But to enable the Commissioner to take under his consideration the alleged industrial dispute it is sufficient if it appears that there is an industrial dispute between a substantial number of air pilots and Qantas Empire Airways Ltd., and that it is so seems to be a reasonably certain inference. The argument that the officers of the Federation meant only in their dealings to represent an undefined group cannot be sustained. Naturally it is a matter about which there is no precision, but the negotiations concerned a limited body of men and as the matter proceeded the representation of the pilots as presently employed individuals grew clear enough, even if a more general application of any resulting agreement was intended.

At the hearing of the application to make the order nisi absolute, it became clear enough that the second and third grounds mentioned therein would not support the grant of a writ of prohibition, and it is unnecessary to say more about those grounds.

I agree that the order nisi should be discharged. The applicant for prohibition is employed by the respondent Company as an air pilot and he is a member of a trade union or an industrial organization of air pilots called the Australian Federation of Air Pilots. This body has not registered under the Conciliation and Arbitration Act 1904-1960 Cth or otherwise become a corporation. The Federation has obtained recognition by the Australian Airline Operators' Association as a body representing the collective industrial interests of air pilots. On 15th June 1961 the Federation began negotiations with the respondent Company for an industrial agreement outside the Conciliation and Arbitration Act between it and the Company as to the terms of the contract of employment which it should make with air pilots who are members of the Federation and are in its service. The negotiations were terminated on 6th June 1961 by a statement made by the manager of the Federation who was conducting the negotiations on its behalf. The circumstances in which the negotiations were terminated led the Company to notify the respondent Conciliation Commissioner of the existence of an industrial dispute between it and air pilots in its service who were members of the Federation. A compulsory conference over which the Conciliation Commissioner presided was held under s. 29 of the Act with respect to the notification by the Company of the existence of an industrial dispute between it and air pilots belonging to the Federation. Documents placed before the Commissioner by the Company showed that an industrial dispute existed as to the salaries and conditions of employment of air pilots, members of the Federation in the Company's service. The dispute arose from the rejection by the Company of demands with respect to the abovementioned matters and the rejection of demands made by the Company in the course of the negotiations. In pursuance of s. 28 of the Act the Commissioner ascertained that the parties to the dispute were "Air Pilots in the employ of Qantas Empire Airways Limited on 20th June 1961, and who have been so employed since 15th June 1960, and who have during the whole of that period been members of the Australian Federation of Air Pilots". This finding was made on 20th June 1961. In accordance with the procedure provided by reg. 19 of the Conciliation and Arbitration Regulations the applicant has been served with notice of the time and place for hearing persons alleged to be parties to the industrial dispute in question with a view to its settlement by arbitration. The notice is addressed to all members of the above-mentioned group of employees. It is in the form prescribed by reg. 19 for such a notice, that is Form 3 in the First Schedule. The applicant seeks a writ of prohibition restraining the Commissioner from proceeding with the hearing of the dispute, as he proposes to do, with a view to making an award. In terms the notice informs the applicant and each member of the abovementioned group of employees that if he does not satisfy the Commissioner within the time allowed by the notice that he is not a party to the industrial dispute an award will be made binding on him. The notice states in respect of the members of the group, to whom it is issued, only that they are alleged to be parties to the industrial dispute.

The substantial ground upon which the applicant seeks prohibition is that the acts on the employees' side which brought about the dispute were done by the Federation itself and that because it is a voluntary association it cannot represent its members so as to raise an industrial dispute. The real situation, in my opinion, is that the group of employees to whom the notice is addressed were represented by an officer or officers of the Federation clothed by its Rules with authority to make demands on the Company and reject demands made by it with respect to their industrial relations with the Company. The group is composed of a sufficiently large number of employees to say that the rupture of their collective industrial relations with the Company which has taken place is an industrial dispute. In view of the terms of the notice fixing the time and place for the hearing of the industrial dispute, it does not appear that the finding on the question of who are the parties to the industrial dispute is final. In my opinion, it was within the jurisdiction of the Commissioner under s. 28 and reg. 19 to issue the notice by virtue of those provisions and he has jurisdiction to proceed with the hearing of the industrial dispute in accordance with the terms of the notice. The ground that the dispute is not one which extends beyond the limits of any one State was only faintly argued. It is unnecessary to consider that ground because as has been pointed out the dispute comes within par. (d) of the definition of Industrial dispute in s. 4 of the Conciliation and Arbitration Act 1904-1960.

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Judgment (15 paragraphs)

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