CTHHCA

Re Commonwealth Conciliation and Arbitration Commission; Re Association of Professional Engineers, Australia; Ex parte City of Perth [1973] HCA 64

[1973] HCA 64

High Court of Australia|1973-07-01|Before: Stephen JJ, McTiernan J

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At a glance

Source facts

Court

High Court of Australia

Decision date

1973-07-01

Before

Stephen JJ, McTiernan J

Source

Original judgment source is linked above.

Judgment (52 paragraphs)

[1]

This matter is an application for a writ of prohibition pursuant to the Constitution, s. 75 (v). Each of the applicants is a local government authority and an "employer" as defined by s. 4 (1) of the Conciliation and Arbitration Act 1904 Cth, as amended. The respondents in the application are a Commissioner appointed under s. 6 of the Act, and the Association of Professional Engineers, Australia, which is an organization of employees registered under the Act. The employees of the local government authorities include members of the Association. Each employee is an "employee" as defined by s. 4 (1) of the Act. The wages and conditions of employment of the employees are prescribed by awards made under the Act. There are in the awards conditions as to the termination of employment and as to dismissal from employment. The former provide for termination after the expiry of a notice of termination. The right of dismissal without notice upon grounds justifiable at common law is not taken away by the awards.

[2]

On 23rd March 1972 the Association made a written demand on each local government authority, which reads thus: "The Association of Professional Engineers, Australia on behalf of its members and persons eligible to be members employed by your Council makes the following claim: (a) That officers, in the event that their employment is terminated or who are dismissed, shall have the right to appeal against such purported termination or dismissal to the Commonwealth Conciliation and Arbitration Commission provided any such appeal is made within 14 days of the purported termination or dismissal. (b) The Commonwealth Conciliation and Arbitration Commission shall determine whether or not the purported termination or dismissal was harsh, unjust or unreasonable and may make such settlement as it deems just in the circumstances. If your Council is not prepared to grant this claim by Friday 31 March, 1972 it is the intention of the Association to notify the Industrial Registrar of the existence of an industrial dispute within the meaning of section 28 of the Commonwealth Conciliation and Arbitration Act."

[18]

In the present case, as in many other cases, it does not matter, so far as the result is concerned, whether the inquiry that is made is whether there exists an industrial dispute extending beyond the limits of any one State within the meaning of s. 51 (xxxv.) of the Constitution or whether there has arisen an industrial dispute within the definition of s. 4 of the Conciliation and Arbitration Act 1904 Cth, as amended ("the Act"). There is no doubt that there exists a real and genuine dispute; the question is as to its nature. So far as the evidence shows, a dispute extending beyonds the limits of any one State originated only when the letters of demand had been served and had not been complied with. Before that, it appears, there had been a dispute at Gladstone as to the dismissal of one engineer and a dispute at Stirling in relation to the dismissal of another, but these were local disputes; in other words, there had been two intra-State disputes rather than one dispute extending beyond the limits of one State. To determine the nature of the dispute that came into existence by the failure to accede to the letters of demand it obviously becomes necessary to look at the demands contained in the letters. However, I am prepared to assume that a future or different dispute could emerge during the course of proceedings before a Commissioner - see Reg. v. Commonwealth Conciliation and Arbitration Commission; Ex parte Melbourne and Metropolitan Tramways Board [1] - although it seems to me that for this to occur it would be necessary to find that before the Commission a further demand was made with which there was no compliance. I am prepared further to assume that in the present case the Association, by suggesting that an award be made in the form of the draft, which was tendered to the Commission, either made a new demand or clarified its original demand and that the failure of the prosecutors to accede to this demand gave rise to a dispute whose ambit should be discerned from the draft award which the Association put before the Commission rather than from the original letters of demand. Whether the claims which gave rise to the dispute are to be found in the letters of demand or in the draft award, the question must be whether they related to an industrial matter and it is no objection to the jurisdiction of the Commission that it would be beyond power to make an award in the precise terms suggested in the claims - Reg. v. Holmes; Ex parte Altona Petrochemical Co. Ltd. [1] .

[21]

A claim, not acceded to, that an employer should not dismiss an employee harshly or unreasonably would give rise to a dispute as to an industrial matter and a Commissioner could validly settle the dispute by making an award in the terms of the claim: Reg. v. Gough; Ex parte Meat and Allied Traders Federation of Australia [2] . The dismissal of an employee is something that pertains to the relationship between the employee and his employer and is an industrial matter. However, I am of opinion that the dispute in the present case was not as to whether employers should be forbidden to dismiss an employee harshly or unreasonably; it was as to whether an employee when dismissed should have a right to apply to the Commission for an order for reinstatement or compensation, or, put in another way, whether the Commission should have power to entertain such an application. It does not appear that it was ever suggested at any time before the submission was made to us in argument that the Association claimed that an award should be made providing only that employees should not be dismissed harshly, unjustly or unreasonably, and there is nothing whatever in the material before us to show that if no more than that had been sought by the Association the prosecutors would not have acceded to the demand. However, an award could not validly be made which provided, not only that an employer should not dismiss an employee harshly or unreasonably, but, also, that the Commission might order the reinstatement in employment of any employee so dismissed. It was so held in Reg. v. Gough; Ex parte Meat and Allied Trades Federation of Australia [1] . The reason given for that decision by Barwick C.J., Windeyer and Walsh JJ. was that the determination of a dispute as to whether a dismissal was harsh or unreasonable would involve the exercise of judicial power contrary to Ch. III of the Constitution. Menzies J. based his decision on the ground that an award of the kind there sought would not be an award made in settlement of an industrial dispute extending beyond the limits of one State, but would rather be a step in the enforcement of an award already made. Owen J. based his decision on the ground that an award of that kind would provide for the enforcement of the rights given by the award itself.

[24]

The question however is whether a dispute arising from a claim that a power of that kind be conferred on the Commission is a dispute as to an industrial matter. I cannot accept that such a dispute would be rightly characterized as one as to the terms of the employment of the employees concerned; it goes beyond that, since what is sought is to confer power on the Commission. Looked at from one point of view, the dispute may appear to be as to the employer's power to dismiss or duty to reinstate in employment, but since it is intended that no criteria should be laid down by which the extent of the power or nature of the duty could be ascertained, it seems to me that what is in truth sought is an extension of the powers of the Commission. That this is so is indeed made clear by the affidavit filed on behalf of the Association, wherein it is stated that the aim of the Association is to obtain for its members employed in Western Australia and Queensland similar protection to that available to members employed in similar positions in New South Wales and South Australia. In other words, the Association seeks, by an order of the Commission, to assimilate the law of Western Australia and Queensland to that of New South Wales and South Australia. Such a demand is one which the employers themselves would have no power to grant, and it seems to me impossible to accept that a demand of that kind could give rise to an industrial dispute within the Act or within s. 51 (xxxv.) of the Constitution. An industrial dispute will only arise from the failure of employers to accede to the demand of their employees if the demand is for some change in the conditions of employment, or for something otherwise pertaining to the relations of employers and employees, which it is within the capacity of the employers to bring about. A demand for legislative action, for example, would not give rise to a dispute which the Commission would have jurisdiction to settle. Similarly the Commission cannot, by making an award, increase its own powers or jurisdiction and a demand that it should do so would not give rise to an industrial dispute. In short, a claim by employees upon their employers that the powers, functions or jurisdiction of the Commission should be enlarged is not a claim as to an industrial matter.

Re Commonwealth Conciliation and Arbitration Commission; Re Association of Professional Engineers, Australia; Ex parte City of Perth [1973] HCA 64 - HCA 1973 case summary — Zoe