Waterside Workers' Federation of Australia v Gilchrist, Watt and Sanderson Limited [1924] HCA 61

Waterside Workers' Federation of Australia v Gilchrist, Watt and Sanderson Limited [1924] HCA 61 - HCA 1924 case summary — Zoe

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Bavin A.-G. for N.S.W. (with him Ferguson), for the prosecutor. There is no evidence of a dispute existing at any time as to any of the matters mentioned in the first ground of the order nisi, and the award is therefore invalid. The only claim being for preference of members of the Federation over non-members, there was no jurisdiction to award preference to returned soldiers and sailors. The claim was in reference only to the relations between employers and employees, and does not warrant an award as to the relation between those who require wharf labourers' work to be done and those who do it. The award should be read as applying only to labourers who were paid an hourly wage, and not to permanent employees; for under the rules of the Federation a member who took permanent employment ceased to be a member (see Waterside Workers' Federation v. Commonwealth Steamship Owners' Association (1) ). There was no dispute as to permanent employment, and the award, so far as it deals with permanent employment, is invalid. The award, so far as it gives preference to returned soldiers and sailors, is invalid as being in conflict with the provisions of the Returned Soldiers and Sailors Employment Act 1919 (N.S.W.), which directs preference to all returned soldiers and sailors, while the award purports to limit the preference to returned soldiers and sailors who are members of the Federation (Australian Boot Trade Employees' Federation v. Whybrow & Co. (2) ; Tramways Case [No. 2] (3); Federated Engine-Drivers' and Firemen's Association of Australasia v. Adelaide Chemical and Fertilizer Co. (4)). The interpretation of the award by the President should not be regarded, for it is not a judicial interpretation since the Arbitration Court cannot exercise the judicial power of the Commonwealth (Waterside Workers' Federation of Australia v. J.W. Alexander Ltd. (5) ), and it cannot be regarded as something in the nature of a variation, for it purports to be a judicial interpretation. While the award is still in operation this Court has power to issue prohibition to the Arbitration Court (R. v. Hibble; Ex parte Broken Hill Pty. Co. [No. 1] (6) ), although it would not

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the Company, employed the men. I pass by the fact that the Company was one of the members of the Bureau, and, therefore, a member of the firm which employed the men, because it is simpler to treat the Bureau, for the purposes of the present case, as a separate and independent entity. The Bureau, in my opinion, acted simply as a supplier of labour to its members : it hired the services of wharf labourers to such members at an agreed amount; it engaged the "permanent hands," and, if a member required wharf labour, then he notified the Bureau, which supplied the number of men required - from the '" permanent hands" in the first place, and, in the event of a shortage, from the "casual hands." The members did not pay the men for their services, but paid the Bureau; and they did not exercise the power of dismissing the men for misconduct, unskilfulness or any other reason, but made complaint, in such cases, to the Bureau, and the Bureau then dealt with the matter. The control and direction of the men, however, in loading and unloading the Company's ships, was, I am satisfied, in the hands of the member using their services, namely, the Company, and the men were bound, in the course of their work to conform to the orders of that member. In such cases the law is clear enough: when an employee is sent by his employer to do work for another, it is a question of fact whether he becomes quoad hoc the employee of the person for whom he is, for the time being, working, or whether he remains in all respects the employee of his ordinary employer (see Salmond on Torts, 5th ed., p. 99; Donovan v. Laing &c. Syndicate (1); Jones v. Scullard (2); Hall v. Lees (3) ). The facts of the present case make it abundantly clear, to my mind, that quoad the loading and discharging of the Company's ships the wharf labourers were in its employ and under its directions. (2) That the Court had no jurisdiction to prescribe that the Company should not discriminate against members of the Federation. The opinion of my brother Higgins in the Engine-Drivers' Case (4), when sitting as President of the Arbitration Court, was strongly relied upon in support of this proposition. Preference was claimed ; but the Court is not restricted to the relief claimed, and may give such relief, within the ambit of

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the constitutional power of the Commonwealth. The argument is based upon Federated Saw Mill, Timber Yard and General Woodworkers' Employees' Association v. James Moore & Son Pty. Ltd. (1) and Whybrow's Case (2); and, if those cases be still law, I should be prepared to assent to the argument. The State Act provides that every employer " shall give preference in employment inany . . . industry to a returned soldier or sailor who . . . is registered for employment in that . . . industry under section ten of this Act, or applies in writing, for such employment, and is not excluded from the benefits of this Act, as against any other person offering his service at the same time." But by force of the definition in sec, 2, the returned soldier must be resident in New South Wales, and his enlistment must have terminated. Now, the Federal award is less extensive in some respects than this provision, and more extensive in other respects. Thus the preference under the award is limited to soldiers and sailors members of the Federation, but is not conditioned upon residence in New South Wales or upon registration under the State Act. There may be some returned soldiers and sailors who fall within the terms of both the State Law and the Federal award, and who can claim preference under each provision (cf. Engine-Drivers' Case (3) ). But, in the main, the State Act and the award must conflict in operation, and both cannot be obeyed. The award is, therefore, in my opinion, inconsistent with the State law. It is impossible, however, to my mind, to reconcile the principles underlying the decisions in the Woodworkers' Case (1) and Whybrow's Case (2) with the decision of this Court in the Engineers' Case (4), where the Court said: "' However valid and binding on the people of the State where no relevant Commonwealth legislation exists, the moment it" (that is, the State legislation) "encounters repugnant Commonwealth legislation operating on the same field the State legislation must give way." An award made under the authority of the Commonwealth legislation takes its sanction and its force from that legislation, and has, therefore, supremacy over the State law. Consequently this argument also fails. (5) That the award of preference to returned soldiers and

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selected, over "other persons "" - which phrase must, to my mind, denote all persons but the selected class. There is no reason that I can understand for limiting the words " other persons " to persons who are not members of the organization. It has been suggested that this construction of sec. 40 exceeds the constitutional power of the Commonwealth. But the Parliament has " power to make laws for the peace, order, and good government of the Commonwealth, with respect to . . . conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State," and, while the power of the Parliament is limited and cannot be transcended, yet within the ambit thereof the Parliament is supreme and may " use any means which are in fact conducive to the exercise of a power granted by the Constitution " (Stemp v. Australian Glass Manufacturers Co. (1)); "you may complement, but you may not supplement, a granted power " (Whybrow's Case (2) ). Now, implicit in sec. 40 is the necessity of some industrial dispute before the powers conferred by that section can be exercised. The constitutional power is not limited to a determination by means of arbitration of the matters or items in dispute, but is a power to make laws with respect to arbitration for the prevention and settlement of industrial disputes. Given a dispute, actual or threatened, it is within the competence of Parliament to say what means, what powers and authorities, the arbitrator may use for the purpose of settling or preventing that dispute. If industrial peace be the object of the Constitution and the Arbitration Act, and the Legislature attempts to attain that end by means of a power conferred upon the arbitrator to grant preference, then Courts of law cannot deny that the end justifies the means, however severely some individuals may suffer (see Adkins v. Children's Hospital (3) - Holmes J.). In my opinion, the provisions of sec. 40 complement, and do not: supplement, the constitutional power of the Commonwealth, and are competent and valid provisions (cf. Waterside Workers' Case (4) ).

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Judgment (182 paragraphs)