Re Heagney and Federated Storemen and Packers Union of Australia; Ex parte ACT Employers Federation [1976] HCA 32

High Court of Australia|1976-06-21|Before: Murphy JJ

High Court of Australia Barwick C.J. Stephen, Mason, Jacobs and Murphy JJ. Re Heagney and Federated Storemen and Packers Union of Australia; Ex parte ACT Employers Federation [1976] HCA 32

The respondent Commissioner, appointed as such under the Conciliation and Arbitration Act, 1904-1975 Cth ("the Act"), found that an industrial dispute extending beyond the limits of any one State had arisen between the prosecutor and the respondent Union. The existence of the dispute depended entirely upon the failure of the prosecutors and other companies and persons to accede to the terms of a demand in writing made upon them by the respondent Union. No question of an industrial dispute otherwise existing or evidenced arises in this appeal.

The ground of the order nisi was the absence of jurisdiction in the Commissioner to proceed because an industrial dispute extending interstate did not in fact exist. A particular reason put forward by the prosecutor for claiming that no such dispute existed was that there was such ambiguity and uncertainty in the terms of the demand made by the respondent Union as precluded a dispute of the requisite kind arising merely from a failure to agree to the demand. The question in this case is therefore whether the terms of the demand were such as to be capable of giving rise to a relevant dispute.

The settled doctrine of this Court conformably to the Constitution in relation to the power of the Commonwealth Conciliation and Arbitration Commission to entertain an application for an award or to make an award is that there must in fact exist between the parties an industrial dispute extending beyond the limits of any one State. Under that doctrine, only this Court can finally decide whether such a dispute exists. Consequently, an attempt by the Parliament to give the Commission or any of its members, a power to decide that question to the exclusion of this Court must fail. It has been pointed out on earlier occasions that the provisions of s. 60 (2) of the Act cannot avail to preclude this Court from restraining activities of the Commission when the requisite dispute does not exist to support them. For one such occasion, see Reg. v. Portus; Ex parte McNeil [1] . In the present case, it was strenuously contended that s. 24 of the Act in its present form, resulting from an amendment made by s. 13 of No. 37 of 1972, operated to prevent the issue of prohibition, it being said that the determination of the existence of a dispute of the relevant kind is thereby finally committed to the Commission. But, in my opinion, it is clear that consistently with the constitutional necessity for an industrial dispute of the kind specified in s. 51 (xxxv.) to exist in fact, s. 24 could not validly have any such operation.

Of course, the Commission must first find the existence of such a dispute if it intends to proceed to the making of an award to settle it. It must ascertain with some precision the extent of the dispute. The dispute must exist before the Commission enters on any examination as to its existence. Section 24 reflects this need in imposing on the Commission the obligation to determine who are the parties, and what are the matters in dispute: for the existence of the dispute is the only justification for the Commission to proceed at all and the extent of the dispute sets the perimeter within which the Commission may move in settling the dispute either by an award in the first place or by a subsequent variation of the award. But, although the Commission must make for itself these findings, it cannot do so to the exclusion of this Court which, having itself decided that there is in fact no such dispute, may restrain further proceedings of the Commission founded on the supposed dispute. Further, the Court may confine such proceedings by the Commission, whether in the making of an original award or in varying an award within the "ambit", as the Court decides it to exist, of the dispute which in fact occurred. It is inevitable that there should be an appearance of a degree of artificiality in this Court thus supervising the exercise of jurisdiction by the Commission. But that consequence stems not from any attitude on the part of the Court but from the basic circumstance that the power granted by the Constitution to the Parliament in this field is limited to providing for the settlement of industrial disputes by means of conciliation and arbitration. The further constitutional limitation to industrial disputes extending beyond the limits of any State at times exacerbates that appearance of artificiality.

But it must be clearly understood that it is the existence of an industrial dispute which is basic to the jurisdiction. In the course of argument in this case, it was submitted that the log of claims was expressed in "summary language" in order to initiate the conciliation process. The making of that submission indicated a basic misconception of the process for which the Constitution makes provision. I reiterate it is an existing dispute extending beyond the limits of any one State which must be the subject of conciliation and arbitration. So frequently reference is made, in justification of an attempt to proceed in the absence of a relevant dispute, to the power to prevent such disputes. But that of necessity must be a totally different process to that of conciliating or arbitrating a dispute. No doubt action taken in advance of the emergence of a dispute may be authorized by an exercise of the constitutional power. But an attempt to make an award in settlement of a supposed but nonexistent dispute cannot possibly be justified as an attempt to prevent an industrial dispute.

Clearly, there can be an industrial dispute of the requisite kind without any written communication or written evidence. But to establish such a dispute so arising is likely to be difficult and time-consuming. Mere dissatisfaction with existing industrial conditions will not be enough, even though the dissatisfaction be communicated to employers. Even strike action to demonstrate dissatisfaction will not be enough. The parties between whom the Commission may conciliate or arbitrate must be in dispute: and in dispute as to one or more identifiable matters. As was pointed out in Reg. v. Portus; Ex parte McNeil [2] an industrial dispute may emerge from the conduct and attitudes of parties without a formal demand or refusal. In such a case it may be possible, though difficult, to determine the precise nature of the dispute. Further, it may be difficult to determine that the dispute extends beyond the limits of any one State. But to say that the dispute may possibly exist without formulation of all its elements does not deny that there must be a dispute as to discernible matters.

However, this Court has decided that a dispute between a Union representing employees in an industry or calling and employers in that industry or calling carrying on business in different States may relevantly be a dispute extending beyond the limits of any one State. This decision added significance to the constitutional power. Further, in deciding that such a dispute could be created by demand for agreement to specific terms relating to employment and failure to agree to such demand, the Court greatly facilitated the proof of the existence of a dispute. Thus, if the demand is made on employers employing persons in the industry, some of such employers carrying on business in one State and other such employers carrying on business in another State, on failure to meet the demand a dispute can arise which can be held to extend beyond the limits of any one State. The Court's doctrine in this respect has contributed considerably to the working of the system of industrial arbitration: But what must result from the demand and failure to agree is a single dispute between the union on the one hand and the employers in the several States on the other hand. They must be in dispute about the same matters, that is to say, all the employers against whom an award settling the dispute is made must have been in dispute with the union about the same matter or matters.

One of the aspects of the need for the existence of one dispute with the employers in different States is that the matters demanded and not agreed fixes the ambit of the one dispute. There can be only one relevant ambit to the interstate dispute. If the dispute with employers in one State is a different dispute to the dispute with employers in another State, there will not be an interstate dispute. There will only be two or more intrastate disputes, each perhaps with its own ambit. It is only if the dispute is the same with the employers carrying on business in different States that it will be an interstate dispute. The dispute will be the same if the demand made upon the employers in the different States is the same demand: it cannot be the same dispute if the demand has more than one meaning reasonably capable of being attached to it, unless it is established otherwise than by mere proof of the making of the demand that the several employers acknowledged that they each understood the demand in the same sense.

If a demand is reasonably susceptible of two or more meanings, there can be no certainty that a single dispute results from a failure to agree to the demand. If the proof of the interstate dispute is merely proof of the demand and the failure to agree to its terms, ambiguity or uncertainty in the terms of the demand will demonstrate the inadequacy of the proof.

Therefore, when a party resorts to the facility of attempting to create an interstate industrial dispute by a demand, whether oral or written, the conditions demanded must be so expressed, in my opinion, that they are capable of being understood in the same sense by each employer upon whom the demand is made and not reasonably capable of being understood in some other sense by some of such employers. The same conditions must be demanded of each so that failure by each to agree to the demanded conditions will give rise to the same dispute between the employees and the employers. If the demand in its substance can reasonably be understood by different employers in different States in a significantly different sense, a series of disputes rather than a single dispute will result. Of course, if the demand is uncertain and incapable of any certain meaning, it cannot give rise to a relevant dispute.

An award settling the interstate dispute need not make the same provisions for the employees in all the various States: the terms of the settling award may differ State by State; but, even so, the award must be in settlement of the one dispute.

Of course, there is no room for mere pedantry in the consideration of the terms of such a demand: and the use of terms which are likely to be familiar to persons engaged in the particular industry is to be expected. But if the Court is asked to accept what I may call the industrially understood meaning of expressions employed in the demand, that meaning in default of agreement between the litigating parties will need to be evidenced to the Court as a currently accepted meaning in the industry. It may be that a Commissioner familiar with the particular industry may know the industrial meaning of terms used: but the Court denied such an advantage needs evidence or agreement inter parties upon which it can act. It is not for the Commissioner, as was suggested in the argument in this case, to inquire of the person making the demand what meaning he attached to the language used and then construct a demand which in truth may never have been made or, at any rate, never understood as such by the persons on whom it has been made. As I have emphasized before, the dispute must antedate the Commissioner's inquiry. He, understandably, cannot make the dispute.

Whilst the terms of a demand are not to be examined ungenerously, there is no hardship or risk of injustice in requiring them to be certain and unambiguous. Demands are mostly made by unions. They have available to them, these days, the service of persons, whether in their employment or in professional practice, expert in the expression of the industrial conditions as to which agreement is sought. It is not too much to require of unions that the demand is clearly and unambiguously expressed. Care must be taken, in my opinion, that a party making a demand, by resorting to vague general expressions, does not fail to provide an ambit to the dispute and, indeed, the Court should not lend any countenance to the making of vague, ambiguous or uncertain demands, made no doubt in the expectation that the confining influence of an ambit properly established will not be operative both in the settlement of the dispute by an award and also in the subsequent variation of the initial settlement.

It seems to me that the ambit of the dispute must be clearly discernible so that the propriety of the settlement of the dispute may be seen and the limits of any subsequent variation observed.

There is one other fundamental requirement of a relevant dispute, namely, that the dispute be a genuine dispute. As I have indicated, a written and unsuccessful demand for terms and conditions of employment may give rise to a relevant dispute: but it does not necessarily do so. It may be established by evidence that the demand was not authorizedly made or that its terms do not represent what really the members of the union desire or require, or it may appear that, upon its face, the demand was made in terms not really to seek their acceptance but merely to endeavour to attract the jurisdiction of the Conciliation and Arbitration Commission. Considerations such as these have long been entertained and at times acted upon by the Court: see, e.g. R. v. Hibble; Ex parte Broken Hill Proprietary Co. Ltd. [3] ; R. v. Blakeley; Ex parte Association of Architects, Engineers, Surveyors and Draughtsmen of Australia [4] ; and the Tramways Case [No. 2] [5] .

(1921) 29 C.L.R. 290, at pp. 299-300. 2. (1950) 82 C.L.R. 54. 3. (1914) 19 C.L.R. 43.

I mentioned earlier the suggestion made during argument that the log was a mere step in the initiation of the conciliation process, was misconceived. Perhaps I can usefully quote in this connexion what was said by Gavan Duffy and Rich JJ. in their joint judgment in the Tramways Case [No. 2] [6] :

They (the employees) and those to whom they entrusted the conduct of the proceeding probably thought that the submission of the log and the refusal by the employers constituted a sufficient dispute to give jurisdiction to the Court, and had they not thought so they no doubt would have taken any further step that was considered necessary to give such jurisdiction, but they were so engrossed in the production of a satisfactory claim and its carriage through the Court that they overlooked the necessity for a substantial dispute, or pretermitted the function of creating one. The service of the log on the employers was no more than a formal step on the road to arbitration, and was not effected with the expectation or even with the desire of obtaining any concession from or conference with the employers, except in so far as they might be obtained as incidents in the arbitration proceedings. The log, as a whole, did not represent the real grievances of any body of employees, what they were determined to get, or even what they thought they were entitled to get as a matter of fair play between themselves and their employers. It was merely the claim which those who had the carriage of the business considered would be likely to obtain the most favourable award from the Court. 1. (1914) 19 C.L.R., at pp. 164-165.

I turn now to consider the demand for agreement to conditions of employment, which in this case is in writing and in the form of a draft award. I do so in order to determine whether the terms of the demand not being conceded establish the existence of a real and genuine dispute as to the matters demanded extending beyond the limits of any one State. The examination of the demand for this purpose involves questions whether the Court is satisfied that the terms and conditions sought by the log are genuinely demanded by the Union and, if so, whether the terms of the demand are so sufficiently certain that, in rejecting them, each employer in each State intended to be bound by the award, may be taken to be rejecting the same demand or, whether those terms were so uncertain or ambiguous that it cannot be concluded that those employers were in truth refusing to agree to the same demand. The question is not whether each employer actually understood the demand in the same sense, but whether having regard to the terms of the demand and the employers' refusal to agree, it can be inferred from the terms of the demand that a single dispute has arisen: that is to say, that those terms were couched in such terms that each employer ought to have understood them in the same sense; that each ought to have concluded that the same things were demanded of him as of all the other employers, some of whom operated in different States.

The respondent Union is registered in connexion with an industry described, so far as presently relevant, as the industry of storing and packing goods and merchandise, the reception, handling, storing, preparing, bottling, packing and delivery of such goods and merchandise so far as such reception and/or handling and/or preparing and/or delivery of such goods and merchandise is in any way incidental or ancillary to their storing and packing, including the pulping, testing and/or processing of eggs; preparing horsehair, cowhair or pighair for trade or for sale; broom making, brush making, mops, and/or feather duster making, flock, mungo and/or felt and wadding making; wool clearing (by any process except washing, carbonizing or scouring); refining, extracting and/or treatment of oil, tar bitumen, tar pitch and road surfacing preparations and/or the making of by-products therefrom; the manufacture of toilet preparations, food preservatives and/or vermin insect and fungi destroyers; wholesale and/or manufacturing chemists; sorting in wool brokers stores, classing of wool, sampling, storing, baling, bagging, packing and despatching of wools, except in shearing sheds, furs, hair, bristles, hides, pelts and skins of animals.

There are further particular classifications of employment covering a diversity of employees.

I mention so much of the description of the coverage of the Union in order to indicate the great variety of employers whom it was sought to bind by the award to be made in settlement of the dispute which may arise out of the demand to which I now refer.

On 24th October 1974, the Union, by letter addressed to the prosecutor and other employers, demanded that the prosecutor and the other employers to whom the letter was addressed should "pay and observe in respect of all your employees eligible to be members of the union, irrespective of whether or not the said employees are members of the union or not, the rates of pay and conditions of employment contained in the attached log of claims and that a new award be made covering such employees".

The log throughout, in relation to rates of pay, does no more than claim minima. A specific rate or a range of amounts is nowhere specified. To appreciate the nature of the claim, it is necessary to set out a number of the claims of the log:

A minimum of $200.00 per week for all adult employees.

A minimum of $20.00 per week in addition to all other payments.

A minimum of $40.00 per week in addition to all other payments.

A minimum of $20.00 per week in addition to all other payments.

Of course, a demand genuinely made may ask in respect of rates of pay too much or marginally more than it can reasonably be expected that the employer will agree to pay. But the quality of the demands in relation to their genuine nature may be tested against the range of established rates of pay in comparable situations. Further, merely to state a minimum will not, in my opinion, suffice to indicate what is the real demand of the members of the Union. As I have indicated elsewhere, mere dissatisfaction with existing conditions and a desire for higher rates of pay do not give rise to a relevant dispute until that point of time at which the real and specific demand of the members of the Union has been denied by the employers. Nothing less in relation to rates of pay can give rise to a dispute which will warrant the exercise of the jurisdiction of the Conciliation and Arbitration Commission. A useful statement in the Builders' Labourers' Case [7] , quoted with approval by Gavan Duffy and Rich JJ. in the Tramways Case [No. 2] [8] is: When does such a dispute exist? In The Builders' Labourers' Case we said: - "A dispute extends beyond the limits of any one State when it exists in more than one State, that is to say, extends over an area which embraces territory of more than one State. When persons engaged in industrial disputes, and living some in one State and some in another, join together to insist, and do insist, on the concession of common industrial conditions which are definitely and finally refused by those from whom they are demanded, the words of the sub-section are satisfied. The submission by employees to employers in two or more States of industrial conditions in the shape of a common log, and the refusal by employers to concede those conditions, do not necessarily constitute such a dispute. but they are evidence of its existence. The demand may be the outcome of a settled determination on the part of the employees to have that which they demand by lawful or it may be even by unlawful means; the refusal may be the result of an equally deliberate determination on the part of the employers. If so there is a dispute. On the other hand the demand may merely represent what the employees would like to have though they are not really discontented with existing conditions, or, being discontented, are not disposed to insist on concessions; the employers' refusal may represent a mere unwillingness to give too easily that which, if pressed, they would be read to consider or concede. In such a case there may be no dispute". 1. (1914) 18 C.L.R. 224, at p. 255. 2. (1914) 19 C.L.R., at pp. 163-164.

The demand of the present log is that all employees of the employers in all the industries covered by the Union's constitution should be paid the stated minima rates of pay. Those employees are persons who perform any of the functions listed in par. (b) of the "Incidence of Award", part of the log of claim. The principal description of the work thus covered is that of storing and packing goods and merchandise. One has only to peruse the list of multifarious industries including such employees who may be engaged wholly or partly in storing and packing goods and merchandise to realize the unreality of the demands for minima of the stated amounts. The minimum wage at the date of the service of the log was $61.30 and the average weekly wage, which includes amounts paid in overtime and to highly skilled employees, was $145.50. I feel bound to conclude that a demand for the payment of a minimum of $200 per week for each and every employee in any of the abovementioned industries who was engaged wholly or partly in storing or packing any goods was not a real demand, not one which on any footing could be regarded as a statement to use the words of Gavan Duffy and Rich JJ. which I have already quoted, which the employees were determined to get, or even which they thought they were entitled to get as a matter of fair play between themselves and their employers. Rather, the minima, in my opinion, are stated in the log in an endeavour to set a lower limit to the ambit of the dispute it is hoped to create whilst at the same time precluding the possibility of there being an upper limit to that ambit. Further, it seems to me quite clear that the log in this respect was, in the language of the head note to the Tramways Case [No. 2] [9] , "put forward by the organisation merely as a means of invoking the jurisdiction of the Commonwealth Court of Conciliation and Arbitration and obtaining from it an award in the most favourable terms possible". It is well established that a log so designed will not afford acceptable evidence of a relevant dispute nor will it create a relevant dispute. A dispute, as I have pointed out, must antecede any activity of the Commission towards the making of an award. The parties must be in dispute as to specific matters unambiguously demanded.

There are other indicia in the log of its lack of genuineness as a demand creating, or evidencing a real dispute with respect to which the Commission, as by s. 24 it is bound to do, can determine amongst other things what are the matters in dispute. There is the obvious lack of definition of the real nature of, and precise reasons and occasions for, the payment of the various allowances and extra and special rates of pay, matters eventually to be known if the demand is to be understood. Some claims are made to depend on the normal rate of pay, on occasions daily or otherwise weekly, though it is quite impossible to tell from the terms of the demand what is the normal rate of pay demanded. Whilst the normal hours of work are claimed to be thirty hours per week the log demands that the union delegates be allowed forty hours per week to attend to union business.

It seems to me that on a review of all its terms, the log of claims is not sufficiently certain in its meaning to warrant the conclusion that each employer could reasonably be expected to understand it in the same sense. The lack of statement of the occasions for the making of the various allowances, extra special payments and of a statement of a claimed weekly rate particularly in relation to claims 10 and 24 is sufficient, in my opinion, to indicate that the demand is uncertain.

After a good deal of consideration, I have come to the conclusion that, upon its face, the log of claims does not evidence a real and genuine demand which, being denied, could give rise to a dispute as to specific matters which the Commission could resolve by an appropriate award. It seems to me to have been conceived as simply a key to set in motion the arbitration process. That process requires the existence of a relevant dispute and not merely an application for the commencement of that process. This log would not, in my opinion, give rise to such a dispute both because the demand is not genuine and is in any case ambiguous and uncertain to a fatal degree.

Further, and in any case, the log lacks that certainty necessary to the making of an interstate dispute as to specific matters as required by the Constitutional limitation present in s. 51 (xxxv.).

I agree with the reasons for judgment of Mason J. and would accordingly discharge the order nisi.

The question raised here is one of an all too familiar kind: is the respondent Union's log of claims so ambiguous and uncertain in its expression as to be incapable of creating an industrial dispute extending beyond the limits of one State?

The degree of certainty required for this purpose in the claims made by unions has been authoritatively stated on two occasions by this Court. In Reg. v. Portus; Ex parte McNeil [10] , Dixon C.J., Kitto, Taylor and Windeyer JJ. in a joint judgment said:

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. 1. (1961) 105 C.L.R. 537, at p. 544.

In Reg. v. Association of Professional Engineers of Australia; Ex parte Victoria, the Court (Dixon C.J., McTiernan, Williams, Webb and Taylor JJ.) said [11] :

No doubt demands which are not intelligible or convey nothing clearly to the mind of the person to whom they are addressed may fail in giving rise to an industrial dispute. The doctrine by which this Court has allowed paper demands to form evidence, sufficient evidence, of a real dispute has not hitherto been qualified by any principle which requires paper demands to be in any specific form or to be incapable of misreading or misconstruction. It surely must be sufficient that the party to whom they are addressed ought fairly to understand what he is requested to do on the specific matters which form the subject of the alleged grievance. 1. (1957) 100 C.L.R. 155, at p. 162.

Although in Reg. v. Commonwealth Conciliation and Arbitration Commission; Ex parte Melbourne and Metropolitan Tramways Board ("the Tramways Case") [12] , Barwick C.J. expressed the requirement in somewhat different terms, the statements made in the two earlier decisions should in my view be accepted as authoritative expositions of the approach to be taken by the Court to the degree of certainty required in the formulation of claims, whether by means of a log or otherwise, in order to found an industrial dispute in the constitutional sense.

It will be recalled that in the Tramways Case the union had sought to create an industrial dispute extending beyond Victoria by a paper demand served on the respondent Board and the New South Wales Transport Commissioner. The demand sought the inclusion in an existing award of a clause which was held to be in inconsistent and contradictory terms. It was therefore meaningless and incapable of creating an industrial dispute having the requisite interstate character.

The Tramways Case [13] accordingly is not in my view authority for the proposition that a demand which is understood, or is capable of being understood, in different senses by employers in different States cannot give rise to an interstate industrial dispute. The longstanding doctrine of this Court is that refusal or non-acceptance of a paper demand is evidence of a dispute. So long as the paper demand is, despite its vagaries and shortcomings in expression, capable of having a meaning assigned to it, then the demand is sufficiently certain to found an industrial dispute within the meaning of s. 51 (xxxv.). Experience of human affairs in general and of industrial relations in particular indicates that disputes constantly arise, notwithstanding, or more accurately because, one party mistakes or misconceives the attitude of his antagonist.

The necessity that the dispute should have an interstate quality does not entail as a consequence that the Court should be satisfied that all the recipients of a log of claims understood it in the same sense or that it was so expressed as to involve no risk of misconstruction. If one claim in a log is so expressed as to be meaningless, either because it contains contradictory demands which cannot be reconciled, or for any other reason, then the ambit of the dispute will not be extended by that claim. If it be the only claim in the log then as in the Tramways Case there can be no industrial dispute within the meaning of s. 51 (xxxv.). It is otherwise if, in accordance with the liberal interpretation which should be given to industrial claims, a meaning can be assigned to the log, notwithstanding its inadequacies of expression. The Court will, as it does in other fields of law, strive to give meaning to the claim and lean against any construction which renders it devoid of meaning or certainty. In achieving this result the Court will be assisted in appropriate cases by evidence elucidating the special meaning which any words bear in a particular industry. But once the log of claims is sufficiently certain to sustain meaning its non-acceptance or rejection will create an industrial dispute notwithstanding that one or more of the recipients misapprehend its true import. The dispute consists in the failure, whatever be the reason or motivation, to accept the claims.

What I have said is not affected by s. 24 (1) of the Conciliation and Arbitration Act 1904-1975 which requires the Commission to "determine whether there is an industrial dispute and, if so, who are the parties and what are the matters in dispute, and record its findings". The sub-section as now expressed was introduced by Act No. 37 of 1972 and by way of contrast with earlier statutory provisions it requires the Commission to identify the matters in dispute. Although the new provision makes it desirable that claims should be formulated with precision, it does not qualify or subtract from the remarks which I have made as to the approach to be taken to the construction of logs of claims.

In this case, the respondent Union in October 1974 served a letter of demand and a log of claims on the prosecutor and other registered organizations of employers. The respondent Commissioner on 13th November 1974 found that a dispute existed. In February 1975 an application was made by the prosecutor and other employers for a revocation of the earlier finding on the ground that the log of claims was too ambiguous and uncertain to found an industrial dispute extending beyond the limits of a State. This application was rejected and the question now comes before us on an application to make absolute an order nisi for prohibition made by Stephen J.

The log of claims set out no less than thirty-five distinct matters in respect of which particular claims were made as a basis for formulating rates of pay and conditions of employment to be incorporated in a proposed "Storemen and Packers (Warehouse and General) Award". The log, unlike the log in the Tramways Case [14] , was not a single claim log. The attack made upon it consists of criticisms of particular provisions and it is therefore necessary to deal with many of them individually.

The first feature of the log to which the prosecutor points are pars 1-6 (inclusive) which set out the minimum payments to be made per week for various items described as "Weekly Wage Rates" (par. 1), "Extra Payments" (par. 2), "Site Allowance" (par. 3), "District Divisional Allowance" (par. 4), "Industry Allowance" (par. 5) and "Special Rates" (par. 6). With the exception of the claim made in par. 1 each claim is expressed to be for a minimum specified amount per week "in addition to all other payments". Despite the lack of specificity in expression it is plain enough that the claims are cumulative and mutually exclusive. Although the shorthand description of the subject matter of each claim may present some difficulty to persons unfamiliar with the industry, there is nothing to suggest that the expressions used are unfamiliar to labour and management in the particular industry. The distinction between "Extra Payments" and "Special Rates" is somewhat elusive, but we were informed that the former represents an addition to the "Weekly Wage Rates" paid to all employees, whereas the latter, as its name suggests, signifies a special and additional rate payable for a class or classes of work. Accordingly, I do not find the first six paragraphs meaningless. This conclusion disposes of a number of consequential criticisms made of other provisions in the log.

Paragraph 7 under the heading "Hours" claims "A maximum of thirty hours per week" thereby indicating that the weekly wage rate is payable for a working week of thirty hours. The ordinary hours of work are not stated; they are left to negotiation and to determination if not agreed, but this is no ground of objection.

Paragraphs 8 and 9 contain the word "overtime" which is said to offer some element of uncertainty. No doubt, like many other words, it is a word which is capable of more than one meaning. Yet this is not enough in itself to produce uncertainty or lack of meaning. It is no more than a question of ascertaining the sense in which the word is used in the context.

Problems of a similar kind arise in par. 8 which provides that overtime is to be paid for "at double the rate paid for the day on which the overtime was worked" and in par. 11 which provides for payment to employees for holidays "at the rate they normally would have been paid if at work". The question in each case is: how is the rate to be computed? It is a familiar question of interpretation which has to be resolved and not one which leads to lack of certainty or meaning.

The same comment must be made about pars 16 and 17 which confer an entitlement to "Compassionate Leave" and leave for "Jury Service", in each instance "without loss of pay" and about par. 24 dealing with "Severance Pay" which confers an entitlement "on the basis of four weeks' pay at the rate" the employees "normally would have been paid if at work for each year of service". So also with par. 33 headed "Workers Compensation" which requires employers to make up the difference between an employee's "ordinary rate of pay" and money received whilst on workers' compensation.

A question was raised in relation to par. 14 dealing with "Travelling and Board" but it disappears once the provision is understood as applying to an employee who is working away from his usual place of employment. Another question of a different kind arose in relation to par. 15 which provides that an employee suffering injury "through an accident arising out of and in the course of his employment (not being an injury in respect of which he is entitled to workers' compensation)" requiring attendance during working hours on a doctor, chemist or trained nurse, or at a hospital shall not suffer any deduction from his pay. Here it was suggested that the paragraph would have no field of operation because all the injuries described are compensable under the Workers' Compensation statutes. Even if this submission be correct - in itself a dubious assumption - it fails to establish that the paragraph is meaningless or that it is incapable of generating a dispute.

Paragraph 18 raises yet another problem of interpretation. It relates to "Clothing" and provides that "Employees shall be supplied with clothing including boots and overalls and any other protective clothing required for the job free of charge". The question is whether the reference to clothing should be understood as "protective clothing". I should be disposed to think it was so confined, but on any view it would be incorrect to conclude that the paragraph is meaningless.

Paragraph 19, to which reference has already been made, provides "also that one day's leave with pay shall be allowed for each holiday worked". This entitlement is, as I understand it, additional to the entitlement also conferred by the earlier sentence in the paragraph that "Treble time shall be paid for all work performed on Saturday, Sunday and holidays".

Paragraph 26 dealing with "Juniors" speaks of juniors receiving "the same special rates and all the conditions of the award which apply to tradesmen". In fact the log contains no provision relating to tradesmen. However, this omission does not deprive the paragraph of meaning; an award made in settlement of the dispute may contain provisions affecting tradesmen.

It was suggested that there is some difficulty in ascertaining the correct relationship between par. 24 "Severance Pay" and par. 29 "Retiring Persons", a difficulty which, so it was said, was compounded by the reference in the latter paragraph to the reference to payment "at the rate of ten weeks' pay per year of service". The two paragraphs should be read as presenting separate claims; the reference to pay should be taken as referring to the rate of pay prevailing at the date of retirement.

Paragraph 34 gives expression to a claim that the employer shall obtain and maintain a life insurance policy for each employee which will return the equivalent of twenty years' income in the event of death. There are problems in determining how such a policy could be taken out because the sum of twenty years' future income at unknown wage rates is itself an unknown quantity but this again does not make the demand meaningless. It may provide a good reason for its rejection but that is another matter.

It would be a tedious exercise to recount all the objections which have been taken to the provisions in the log relating to the incidence of its operation and the description of the parties intended to be bound. Here again there is room for speculation as to what the authors intended but the lack of clarity is not such as to warrant the conclusion that the log is meaningless either in its entirety or in any particular aspect. There is perhaps a question as to whether the log in its many references to "retailers" in the description of relevant industries was intended to apply to those who store and pack in the fruit shops and milk bars but I cannot conclude that it is productive of lack of meaning or that lack of meaning results from the descriptions of industries such as "Gamma Ray and Sterilisation Operations", "Hospital Supplies Manufacturers, Distributors, Wholesalers and Retailers" and the many cumbersome collocations of words used to describe the sixty-nine industries referred to in the log.

The preparation and formulation of this log of claims reflects a lack of clarity in conception and expression. For its deficiencies, which are legion, it deserves to be condemned. Yet its shortcomings are not of a kind which inhibit the coming into existence of an industrial dispute within the meaning of s. 51 (xxxv.) having the ambit found by the Commissioner.

The respondent by way of preliminary objection submitted that no relief could be granted because s. 24 empowered the Commission to determine conclusively whether an industrial dispute existed. The submission was entirely misconceived, overlooking as it did the circumstance that the existence or threat of an industrial dispute is a jurisdictional fact within s. 51 (xxxv.) and that a tribunal not exercising the judicial power of the Commonwealth cannot be given power to determine such a fact conclusively.

I agree that the order nisi ought to be discharged for the reasons given by Mason J.

This is an application to make absolute an order nisi for a writ directed to a member of the Australian Conciliation and Arbitration Commission, and the Federated Storemen and Packers Union of Australia to prohibit them from proceeding in a matter in the Conciliation and Arbitration Commission.

The ground for the application is that the member of the Commission had no jurisdiction to proceed in the matter because: "The letter of demand and attached log of claims are so ambiguous indefinite uncertain and contradictory that a failure or refusal to agree to the claims therein made did not give rise to an industrial dispute." The log of claims for improved wages and conditions is in the standard form currently used by many trade unions and is described as a Lygon Street log (referring to the Trades Hall, Lygon Street, Melbourne).

Prohibition proceedings of this kind have bedevilled the Commission for years. They have been a prominent feature of long drawn-out disputes and sometimes have paralysed operations of the Commission and exacerbated industrial unrest.

The prosecutor relied on grounds which show a disposition to give the meaning of "industrial disputes" in the Constitution more precision than it has.

It is a characteristic of disputes that the disputants are often at cross purposes, and that their claims or contentions are often confused, self-contradictory, unclear and indefinite. This applies as much to industrial as to other disputes.

The legislative power in s. 51 (xxxv.) of the Constitution is to make laws with respect to "conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State". The word "prevention" is often overlooked in the cases. The legislative power authorizes laws which apply the processes of conciliation and arbitration in circumstances where an industrial dispute extending beyond the limits of any one State may be prevented, that is, where it does not exist.

The processes of conciliation and arbitration may therefore constitutionally be utilized in circumstances of confused and indefinite claims and contentions which precede the existence of an industrial dispute extending beyond the limits of any one State. This tells strongly against importing precision into the concept of industrial disputes in the Constitution.

The prosecutor contended that the log was ambiguous, indefinite, uncertain and contradictory. This does not prevent it from giving rise to an industrial dispute. In Reg. v. Portus; Ex parte McNeil this Court said [15] :

An imprecise claim should be distinguished, however, from one which is completely unintelligible. InReg. v. Association of Professional Engineers of Australia; Ex parte Victoria [16] , Dixon C.J., McTiernan, Williams, Webb and Taylor JJ. said:

The precision relating to the concepts of offer and acceptance in the law of contract should not be applied to the formation of an industrial dispute arising because of a refusal or failure to accept a log of claims. For example, as the prosecutor conceded, a claim for "wage indexation" would be sufficient to found an industrial dispute. Such a simply expressed claim is ambiguous, indefinite and uncertain, but it is intelligible.

The order nisi should be discharged, but without costs (see s. 197A of the Conciliation and Arbitration Act 1904-1973).

At a glance

Court

Decision date

Before

Source

Judgment (79 paragraphs)