Re Australian Conciliation and Arbitration Commission; Ex parte Transport Workers' Union of Australia [1977] HCA 72

Re Australian Conciliation and Arbitration Commission; Ex parte Transport Workers' Union of Australia [1977] HCA 72 - HCA 1977 case summary — Zoe

[16]

The power to grant preference to unionists is not found in sec. 40. That section assumes the existence of such a power and prescribes conditions affecting its exercise. The power is to be found in the definitions of industrial dispute and industrial matters, and in the sections which give the Court jurisdiction to settle such disputes by the method of arbitration. In R. v. Wallis, Dixon J. said in relation to s. 56 (another form of s. 47) [37] : the question what may be the subject of an industrial dispute and the question what powers will be conferred upon the conciliation commissioners to deal with industrial disputes were two distinct matters for legislative consideration. To take a very obvious example, s. 55 forbids the inclusion in an award of provisions requiring a person claiming the benefit of an award to notify his employer that he belongs to an organization or enabling the employer to forfeit any part of an employee's wages. Section 56 deals with a form of remedy or relief that the arbitrator may apply. However widely the definition of "industrial dispute" may be interpreted it appears to me still to remain true that the specific grant of power made by s. 56 (1) and (2) is inconsistent with an inference that under the general power conferred by s. 38 the conciliation commissioner or arbitrator may wield a much more comprehensive and drastic power upon the same matter or upon matters ejusdem generis. Again, in Reg. v. Holmes; Ex parte Altona Petrochemical Co. Ltd. [38] ("the Containers Case"), Menzies J., with whom Owen J. agreed, said: When a demand is analysed, it must be to ascertain whether it relates to an industrial matter rather than whether, if an award did no more than follow the demand, it would be a valid award having regard to s. 47 Section 47 does not deal with claims; it deals with directions that may be made when an industrial dispute comprehends the matter of preferential employment of certain persons. I think it would be wrong to import the requirements stated in s. 47 into the terms of par. (j) of the definition of industrial matters in s. 4. There are, of course, statements to the contrary, but in my opinion the meaning of industrial dispute and industrial matters in s. 4 should not be limited by reference to s. 47 of the Act. 1. (1935) 54 C.L.R. 387, at p. 405. 2. (1949) 78 C.L.R., at p. 553. 3. (1972) 126 C.L.R. 529, at pp. 559-560.

[61]

A monopoly of work for unionists, and a fortiori for members of one particular union, and the consequent exclusion of non-unionists or of members of other unions from work in accordance with the terms of an award goes beyond preference to unionists. The provisions of s. 56 do not authorize more than preference to unionists. They do not enable a commissioner to declare non-unionists black so that they cannot get work in the industry to which they belong. If there is, however, power to exclude non-unionists, the exclusion may be partial or complete. Partial exclusion is preference to others. There would be no rational reason for Parliament carefully prescribing conditions in relation to preference, i.e. partial exclusion, if it were intended that there should be an unlimited power to order complete exclusion in any case. Accordingly, in my opinion, the definition of "industrial matters" should not be so interpreted and applied as to authorize the making of an award for complete exclusion. It was argued in that case that the initial words of the definition of industrial matters, quite apart from the specific paragraphs including what is now par. (j), were sufficiently wide to cover a dispute as to whether an employer should be at liberty to employ persons who were not members of the claimant union. Latham C.J. said [64] : In the first place, what has already been said about the specific provisions of s. 56, limiting as they do the power to make an award giving persons a preference in employment, shows that it was not intended by Parliament that this part of the definition of "industrial matters", any more than pars. (h) (i) (j) and (k) of the definition, should create a power to make an award excluding non-unionists from the possibility of employment. With respect to par. (j) Rich J. said [65] : The "non-employment" referred to in s. 4 (j) does not mean a non-employment of employees enforced upon employers The provision challenged in the proposed awards provides for a monopoly in favour of the Federated Clerks' Union and a wholesale exclusion of other persons whether or not members of an organization from a wide sphere of employment and a corresponding obligation on employers to employ only members of the union. 1. (1949) 78 C.L.R. 529. 2. (1949) 78 C.L.R., at pp. 543-544. 3. (1949) 78 C.L.R., at p. 545. 4. (1949) 78 C.L.R., at pp. 547-548.

[69]

Subject to the provisions of the Re-establishment and Employment Act 1945, the following conditions shall apply in respect of employment in the industry: - (a) In employing and dismissing employees, an employer bound by the terms of this award shall give preference of employment to members of the Clothing and Allied Trades Union of Australia. (b) Without derogating from the generality or operation of sub-clause (a) hereof - (i) An employer who is bound by this award shall not employ any person who is not a member of the said Union if a person who - (1) works in the class of work in question, and (2) is a member of the said Union is available for and willing to accept such employment. (ii) An employer who is bound by this award shall not (on the ground that no such person as is described in sub-paragraphs (1) and (2) of paragraph (i) hereof is available for and willing to accept the employment in question) employ any person who is not a member of the said Union unless the said employer first notifies the said Union by sending a registered letter or telegram addressed to the nearest office of the said Union in the State in which the employee is to be employed that no such person is available for and willing to accept such employment and the said Union does not within forty-eight hours after the receipt of the said notice notify to the said employer by sending by registered letter or telegram the name and address of a member of the said Union who works in the class of work in question and is available for and willing to accept such employment. (iii) An employer who is bound by this award shall not continue to employ any person who is not a member of the said union if - (1) the said Union sends notice by registered post or telegram to the said employer that such person is not a member of the said Union; and (2) such person does not become a member of the said Union within fourteen days from the receipt by the said employer of the said notice; and (3) a person who - (a) works in the class of work in which the said employee works; and (b) is a member of the said Union is available for and willing to accept such employment. (iv) An employer who is bound by this award shall not (on the ground that no such person as is described in sub-paragraph (3) of paragraph (iii) hereof is available for and willing to accept the employment in question) continue to employ an employee for more than fourteen days after the receipt of the notice referred to in paragraph (iii) hereof unless the said employer first notifies the said Union by registered letter or telegram addressed to the nearest office of the said Union in the State in which the said person is employed that no such person is available and willing as aforesaid and the said Union does not within fourteen days after the receipt of the said notice send notice to the said employer by registered letter or telegram of the name and address of a person described in sub-paragraph (3) of paragraph (iii) hereof who is available for and willing to accept such employment. (c) Any notice sent by registered post or telegram pursuant to any of the above sub-clauses shall be deemed to have been received at the time when it would have been received in the ordinary course of delivery by the Postmaster-General's Department. It was held by the whole Court that a demand for the exclusion from employment of persons not belonging to a given union is not an industrial matter within the definition in s. 4 and, since the only demand in the union log had been a claim for compulsory unionism, and not for preference to unionists, there was no dispute to the settlement of which an award directing preference to unionists under s. 56 (now s. 47) could be appropriate.
1. (1950) 81 C.L.R. 537.

[70]

Apart from what has already been said as to the complete ineffectiveness for all relevant purposes of the inclusion of the claim for compulsory unionism in the log, preference to unionists is different in kind from a monopoly of employment for unionists: see Metal Trades Employers' Association v. Amalgamated Engineering Union [5] ; R. v. Wallis [6] . For this reason the claim for compulsory unionism contained in the log cannot be relied upon to support an award for preference to unionists. He also said [7] : The legal operation of par. (b) (iii) and (iv) is to require an employer to dismiss a non-unionist upon receipt of a statement from the union that there is a unionist who is available and willing to accept "such employment". The award does not purport to provide that a member of a union may be compelled by the union or by a potential employer to allow himself to be nominated for employment by a particular employer, or that he must work for an employer selected by a union officer. It is not suggested that the nominated person is bound to accept the employment or that the employer is bound to employ him. The nominated person may be incompetent or dishonest, but, apart from such considerations, it is clear that the operation of this part of the award does not bring about as a legal result the employment of any person. These provisions operate, as a matter of legal effect, simply to bring about the dismissal of non-unionists and not to secure the employment, preferential or otherwise, of unionists. Such a result cannot be properly described as preference to unionists. Dixon J. said [8] : To support the clause reliance is placed upon s. 56 (1) and (2) of the Commonwealth Conciliation and Arbitration Act 1904-1949. In R. v. Wallis; Ex parte Employers' Association of Wool Selling Brokers this Court decided that s. 56 is the source of the power of conciliation commissioners to make any award or order with respect to a question how far employment is to be available to persons who are not members of an organization. It follows that to be valid a clause dealing with such a matter must conform with the requirements of s. 56. In the present case cl. 61 is attacked as failing to fulfil this condition. But there is a prior question. Before the power given by s. 56 becomes exercisable there must be an industrial dispute of such a kind that a provision under s. 56 in the award is appropriate or relevant to its settlement. I am aware that in Waterside Workers' Federation of Australia v. Gilchrist, Watt & Sanderson Ltd. [9] Starke J. expressed the view that s. 40 of the Act of 1904-1921 was a substantive grant of authority to the Arbitration Court in connection with industrial disputes, of which it has cognizance, whether preference has or has not been put in dispute by the parties or claimed in the proceedings before it. But I do not think that this view can be pressed so far as to make it unnecessary that an industrial dispute should exist and that the subject of the dispute should be one to which an award of preference may be related as appropriate, incidental or relevant to its settlement. In other words, behind the exercise of the power conferred now by s. 56, there must be a question at issue in a two-State industrial dispute which would support an award of preference. Now in the present case there was no dispute about preference in terms. A log of claims was delivered by the union containing a demand that no employer (subject to the provisions of any relevant Commonwealth law in force) should employ any person on work covered by the log unless such person were a financial member of the union. To this claim the employers did not accede.

[75]

McTiernan J. [10] said: The respondent union demanded in effect that the employers should use their economic power over their employees to compel those who were not members of the union to join it. The power to award preference implies the existence of two groups, unionists and non-unionists. The effect of the union's demand, if conceded by the employers, would have been to eliminate the second group from the industry. When the employers had complied with the demand, members of that group would either have been absorbed by the former group or have been expelled from the industry. It is one thing for a union to demand "preference": it is another to demand that all the employees shall qualify for "preference". The latter demand cuts across the principle of preference to unionists. Webb J. said, after referring to R. v. Wallis, that the clause of the award was not directed to ensuring an absolute monopoly of employment to unionists [11] : However, it exceeds what, in my opinion, is preference within the ordinary acceptation of the term. Preference, as I understand it, pre-supposes an employer who needs the services of an employee, and who is able to secure those of a unionist who is not only qualified for the particular task but who is also available to perform it when required, which may be immediately. A clause which, like clause 61, has the effect of making an employer await the union's nomination of a unionist, no matter how urgently the services of an employee may be required, and then to select an unqualified unionist, if the union sees fit to nominate one, and which also has the effect of requiring the employer to dismiss a qualified non-unionist and employ in his place an unqualified unionist nominated by the union, might necessarily lead to the termination of an employer's operations. Such a clause is as objectionable as the clauses held invalid in Wallis' Case; and in any event is, I think, also invalid as going beyond preference as commonly understood. It was not submitted for the respondent union that clause 61 should be read down to any extent. Kitto J. agreed with Latham C.J. and Dixon J. in the conclusion that the commissioner had no power in view of the terms of the dispute to make the award that he had. He went on to deal with the requirements of s. 56 (now s. 47) and concluded that the clause in the award did not comply with that provision because it failed for want of specification of the manner in which preference is to be given. 1. (1950) 81 C.L.R., at p. 546. 2. (1935) 54 C.L.R. 387. 3. (1949) 78 C.L.R. 529. 4. (1950) 81 C.L.R., at pp. 547-548. 5. (1950) 81 C.L.R., at pp. 549-550. 6. (1924) 34 C.L.R. 482, at p. 549. 7. (1950) 81 C.L.R., at p. 552. 8. (1950) 81 C.L.R., at p. 553.

[80]

On the other hand, it must be conceded, as I have already indicated, that the assignment by an employer of specific work to an employee to be done in his employment is a matter which pertains to the relations of employer and employee and directly relates to work to be done. It must also be conceded that a dispute between employer and employee, or between an employer and a registered organization of employees, or between a registered organization of employers and a registered organization of employees as to which employee or which class of employee shall be assigned particular work in an employment can be an industrial dispute within the meaning and operation of the Act. Such a dispute may exist between an employer or employers or a registered organization of employers on the one hand and more than one registered organization of employees on the other, for example, where the work to be assigned is claimed by more than one of such organizations to be proper to be performed by employees following some particular trade or calling. More than one of such organizations may have members of the one trade or calling; or some one or more may not have such members but be claiming that the work in question is work to be performed by employees following another trade or calling of which class of employee they have members. In my opinion, an award which settles any such dispute by a demarcation of the functions of particular employees or of a class or classes of employees in an employment would clearly be valid whilst it effects its demarcation by reference to a class of employees, or by reference to a trade or calling, or by sex or by age or by some other description. The identification of the employee to do the specified work by any of these descriptions would not be a departure from the demarcation of function which was the substantive subject matter, and constituted the substantial operation, of any such award. That conclusion, in my opinion, would not appear to be disputed by the prosecutor. Nor would the prosecutor seem to dispute, and in my opinion it could not successfully dispute, that the employer or registered organization of employers could initiate such a dispute by a suitable log of claims served upon a registered organization or upon several organizations of employees, with respect to the allocation of work amongst its employees or the employees of its members. Whether an employer or a registered organization of employers could thus create a dispute with respect to such of its employees as were not members of any registered organization need not presently be considered for, in my opinion, the log of claims in this matter properly understood seeks only a demarcation of functions as between such of the employees of the respondents as are members of one or more of the respondent organizations of employees. He also said [15] : In my opinion, the log of claims sought a demarcation of function of such of the employees employed or to be employed by the employers' parties to the log of claims as were members of one or more of the registered organizations of employees upon whom the log was served. It sought no agreement as to the allocation of work amongst other employees. It sought the concurrence of the unions on behalf of their members and on their own behalf to the proposed allocation of work as between such employees. That allocation of work according to membership of an organization contains implicitly a reference to the employees' trade or calling. This, it seems to me, must be so because at least some of the respondent organizations would have members for whom the allotted work would obviously be inappropriate. Thus, for example, a reference to members of the prosecutor in the log and the award is in reality, in my opinion, a reference to transport workers who are members of the prosecutor. He then rejected an argument that the overlapping of membership eligibility as between the unions concerned prevented the creation of a dispute as to demarcation of function. He then referred to cl. 5 of the log of claims, and of the award and said that, although standing alone it would not represent a demand in relation to an industrial matter, it was nonetheless ancillary to the demand for an agreement as to the demarcation of function of certain of the employees in the employers' employment. "It is in form a clause which presupposes the demarcation to have been made at least in part according to membership of an organization of employees and that there is overlapping in the membership eligibility of two or more of such organizations. The clause, in my opinion, is in its nature, protective of such a demarcation." 1. (1969) 119 C.L.R., at pp. 539-540. 2. (1969) 119 C.L.R., at pp. 540-541.

[99]

There is a further reason why s. 60 does not assist the contention that the finding of the Commission cannot be the subject of challenge by way of application for a prerogative writ. Sub-section (1) of s. 60 deals with awards and provides that they are to be free from challenge in the manner there set out, including par. (c) which provides that an award "is not subject to prohibition, mandamus or injunction in any court on any account". Sub-section (2) however makes no reference to prerogative writs or injunctions but provides that "a determination or finding of the Commission upon a question as to the existence of an industrial dispute is, in all courts and for all purposes, conclusive and binding on all persons affected by that question". Not only does the express reference to prerogative writs in sub-s. (1) provide a marked contrast with sub-s. (2) and suggest that sub-s. (2) is not intended to exclude the prerogative writs but the words of sub-s. (2) do not themselves, even in the absence of such a context, suggest an intention to exclude the prerogative writs. The words used in that sub-section are not materially different from those used in the first version of the predecessor to s. 60 (1), namely s. 31 of the Commonwealth Conciliation and Arbitration Act 1904 which provided that "No award of the Court shall be challenged, appealed against, reviewed, quashed, or called in question in any other Court on any account whatever". In R. v. Commonwealth Court of Conciliation and Arbitration; Ex parte Whybrow & Co. [27] those words were held not to be intended to exclude challenge by way of prerogative writs. Since that decision many cases have been decided dealing with the effect and proper construction of privative clauses but none of them appear to me to require a different construction to be applied to sub-s. (2) of s. 60 in its present context. In expressing that view I do not overlook the observations made in R. v. Blakeley; Ex parte Association of Architects, Engineers, Surveyors and Draughtsmen of Australia [28] .

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Judgment (102 paragraphs)

Cases Cited (1)