Walsh v Sainsbury [1925] HCA 28

Walsh v Sainsbury [1925] HCA 28 - HCA 1925 case summary — Zoe

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id be observed upon the Australian coast. The Seamen's Union demanded that what were called Australian rates and conditions should be respectively paid and observed on the coast by these ships. (3) The Waterside Workers' Federation also had some controversy with the owners of oversea shipping lines as to the employment of wharf labour through a shipping bureau established by these owners. The Federation demanded the abolition of this bureau. (4) The Seamen's Union and the Waterside Workers' Federation arranged to support each other in these demands. On the one hand, the members of the Federation agreed to refuse to either unload the ships or accept work upon them, unless Australian rates and conditions were conceded to the seamen. They carried out their arrangement, and by this means several ships chartered by the Commonwealth Line were held up. On the other hand, the Seamen's Union was to support the Waterside Workers' Federation in its controversy by inducing seamen to cease work upon or by refusing to supply seamen to ships engaging wharf labour through the bureau. (5) Several vessels chartered by the Commonwealth Shipping Board entered the port of Fremantle in Western Australia towards the end of 1924. The men on these vessels, who were probably not members of the Seamen's Union, had been engaged abroad, and were not entitled, under the agreements entered into with the crews of these ships, to Australian rates and conditions. (6) Walsh, the President of the Seamen's Union, thereupon incited and urged Morris, the General Secretary, and a member, of the Waterside Workers' Federation, to refuse the wharf labour necessary for the purposes of unloading these ships. He also despatched telegrams to one O'Neill, who is described as Branch Secretary of the Seamen's Union, urging him to see Morris and to induce him and his Federation to refuse wharf labour to such ships. In tthese cireumstances Walsh was charged upon two informations, one alleging that he did unlawfully urge Morris, a person bound y an award of the Arbitration Court, to do something in the nature of a strike: the other that he unlawfully incited O'Neill to counsel the Waterside Workers' Federation, an organization bound by an award of the Arbitration Court, to do something in the nature of a strike, The first information was based upon the Crimes Act

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1914-1915, sec. 7a, coupled with sec. 6a of the Arbitration Act, and the second information was based upon the same Act combined with secs. 6a and 87 of the Arbitration Act. The prosecution, in the course of the argument, disclaimed any charge of incitement to commit an offence under sec. 6 of the Arbitration Act, owing to the form in which the respective informations were laid. So the construction of sec. 64 becomes critical. The section prohibits any person bound by an award of the Arbitration Court doing anything in the nature of a strike. But that prohibition must, owing to the constitutional limitation on the power of Parliament, be confined to a strike in relation to some industrial dispute extending beyond the limits of any one State (The Constitution, sec. 51, pl. xxxv.; Gas Company's Case (1); Australian Commonwealth Shipping Board v. Federated Seamen's Union (2) ). And, in the Gas Company's Case (3), it was said that all that was prohibited by sec. 6a was anything in the nature of a strike "in relation to the industrial dispute settled by the award." Accepting that as the right construction of the section - although, to our minds it takes some liberty with its words - did Walsh incite or urge a strike in relation to the industrial dispute settled by the Waterside Workers' award? No evidence was led to show what the dispute was upon which this award was founded. But the award was in evidence, and clause 27 prescribes, inter alia, that "the Union and each of its branches and its members . . . shall not . . . join in, order, encourage, and consent to, or directly or indirectly be party or privy to any total or partial cessation of work by members of the Union acting in combination as a means of enforcing compliance with demands made by the Union, or by any of its branches, or by any of its members, or by other employees or Unions, on any respondent, or in a total or partial refusal, of members of the Union acting in combination, to accept work on the terms and conditions of the award as a means of enforcing compliance by any respondent with demands made by the Union, or any of its members, not set out in the award or in any variation thereof, or by other employees or any other Union." Now, that award must, in the absence of any evidence

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workmen even though the employer has refused to accept the counsel or yield to the encouragement. No special penalty is provided for the offence of counselling or encouraging apart from the punishment for actually committing the offence. Sec. 88, for example, is different: it does create a new and independent offence. It says: "Any attempt to commit an offence against this Act shall be an offence against this Act punishable as if the offence had been committed." If the offence be committed, all attempts are, of course, merged. The O'Neill information, however, does not state that there had been anything in the nature of a strike of the Waterside Workers' organization. I am not attaching, at this stage, any legal importance to the absence of a material averment - from the charge. That has passed without objection and the case has been fought throughout without reference to it. But it is an important circumstance when the facts are considered, because it is clear that neither side turned its attention to directly proving or - disproving the fact of an actual strike of the Waterside Workers' organization or, indeed, of members of the organization. Whatever evidence exists appears incidentally, and indeed accidentally, for it : occurs alio intuitu, and therefore has to be very carefully watched. The Issues. - The issues in the Morris case are : - (1) Was Morris a person bound by a Commonwealth award? (2) Did Walsh urge Morris to do something in the nature of a strike within the meaning of the word " strike" in sec. 6a of the Conciliation and Arbitration Act? The issues in the O'Neill case are: (1) Did Walsh incite O'Neill to counsel the organization of the Waterside Workers (2) that that organization should do something in the nature of a strike within sec. 64; and (3) did the organization - not individual members of the organization - strike within the meaning of sec. 6a? "Strike" within Sec. 64. - How far does the word "strike" - extend for the purpose of sec. 6a? In the recent Gas Company's Case (1) the majority of the Court, with the temporary approval of i the other members of the Court, held that when sec. 64 is read in - conjunction with the rest of the Act it applies only to what was not previously covered by legislation, namely, to striking in relation to an industrial dispute as settled by the award. The unsuccessful - (1) (1925) 35 C.L.R. 449.

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It is an essential factor of Walsh's guilt, if a breach of the award is a necessary element, that the Commonwealth Line itself was the employer or prospective employer of the waterside workers in respect of those three ships or one of them. That is, if the men engaged, the Commonwealth Line would be the employer and would be bound to pay the wages, and would he liable under the award for a breach of it, in respect of these ships. But if so, the Commonwealth Line would have to be, not merely the charterer, but the charterer under terms that would make it for the time the owner of the vessel, when the master and crew would be to all intents its employees. Merely acquiring by charter the right to have goods conveyed by a particular vessel has not that effect. The law may be conveniently found in Scrutton on Charter Parties, 11th ed., at pp. 4 et seqg. There it is said (p. 5): ''The modern tendency is against the construction of a charter as a demise or lease." Reference is also made to a statement by Vaughan Williams L.J. in Herne Bay Steam Boat Co. y. Hutton (1) that "it is very rarely that a charter-party does contain a demise of the ship." There is no trace of the necessary terms. There is not a particle of evidence beyond the reference to " charter " in Walsh's telegrams, and it is quite impossible, in my opinion, for anyone to say that he has no reasonable doubt, having regard to the evidence, that the Commonwealth Line was the employer actual or prospective of the waterside workers in respect of these ships. Would anyone say, for instance, there was no reasonable doubt that the Commonwealth Line was the employer or the prospective employer of the masters and seamen on those vessels ? It is inconceivable to me that the Commonwealth Line, if it were or were to be the employer of the seamen, would object to pay them Australian wages. It is quite another matter that the Line would not force the true employers to do so. But, if that reasoning be applied throughout, there is no breach of the award. There being no other respect suggested in which, in relation to the industrial

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Hiactns J. 1. - As to the conviction of the appellant for unlawfully q urging Morris to strike: - Mr. Latham has attacked this conviction - on many grounds, including the improper reception of evidence, - the eflect of the evidence, the invalidity of sec. 6a of the Conciliation and Arbitration Act, &c. But there is one ground which, in my opinion, and even if all the evidence for the prosecution was properly admitted, is fully established, and is fatal to the conviction - the ground that the dispute in relation to which Morris was urged to strike (or rather, to persuade others to strike) was, upon the evidence adduced, a dispute in one State only - Western Australia. The dispute, so far as relevant, was with the Federal Government or, more specifically, the Commonwealth Shipping Board which controls the Commonwealth Line of Steamers. Walsh, the President of the Seamen's Union, hoped (as he professes) by strike to get the Government to give Australian conditions to the seamen on the Volumnia, the Clan Monroe, the Baron Polwarth and the Orvieto, all in Fremantle. Walsh was himself in Fremantle, and had ordered the seamen there to declare these vessels, or some of them, " black " ; and he wanted Morris, as General Secretary of the Waterside Workers' Federation, to induce the members of that Union to do likewise, in aid of the seamen's dispute. But there is not, so far as I can find, the slightest evidence that the same dispute was carried on in other ports or elsewhere in Australia, or affected other owners or other ships in other States, or even that these vessels went to other ports in Australia or that there were any other vessels chartered by this Line in Australia, or trading to or from Australia. We have no right to import into the evidence information supplied by newspapers. without oath and without cross-examination. Apparently, the informant and his advisers contented themselves with the easy task of producing from the telegraph office and the - post-office telegrams, &c., which were under Federal Government control, and did not take the trouble of making the case complete against the defendant. By this time those responsible for such prosecutions should know that to get a conviction which can be upheld under these novel sections is a task requiring the greatest care and attention.

At a glance

Court

Decision date

Before

Source

Judgment (87 paragraphs)