Waterside Workers' Federation of Australia v Commonwealth Steamship Owners' Association [1916] HCA 49; (1916) 21 CLR 642 (8 September 1916)

HIGH COURT OF AUSTRALIA

The Waterside Workers' Federation of Australia Complainants; against The Commonwealth Steamship Owners' Association and Others Respondents.

Ex parte The Commonwealth Steamship Owners' Association and Others.

H C of A

8 September 1916

Griffith C.J., Barton, Isaacs, Higgins, Gavan Duffy, Powers and Rich JJ.

H. I. Cohen, for the Waterside Workers' Federation of Australia.

Griffith C.J.

We are told that an award was made by which minimum wages were fixed. At a port called Flat Top, in Queensland, the minimum wage was payable in respect of the time during which employees were going to and coming from Mackay, a distance of about five miles by a river which is almost dry at low water. The award did not in terms impose upon the employees any duty or any obligation to accept employment. Some men refused to accept employment unless they were paid for meal hours while they were not working. Alternatively, they refused to accept employment unless they were carried to the town of Mackay for their meals and back to Flat Top and paid at full rates during the transit. The question is whether they were guilty of a breach of the award by such refusal to accept employment. As the award is absolutely silent as to any duty to accept employment, it is a mere truism to say that they were not guilty of a breach of it. An award might be drawn up in such a form as to impose mutuality of obligation upon employees as well as employers. As this award does not do so, there cannot be any breach of it by the employees.

Barton J.

No obligation is imposed upon employees to accept employment even by implication. That being so, there can be only one answer to the question.

Isaacs J.

I agree. As there is no obligation, there is no breach of the award. Also it cannot be too strongly borne in mind that the President cannot make an award except on a matter in dispute.

Higgins J.

I may add that the award did not impose a maximum wage, and that, if it had done so, it would have been beyond the Court's jurisdiction, because the only thing in dispute was a minimum wage. I am very glad to have the opinion of my learned brothers upon a matter which, to my mind, was obvious, but which unfortunately has been made the subject of frequent discussion and bitter controversy.

Gavan Duffy J.

I agree with what has been said by the learned Chief Justice.

Powers J.

I also agree.

Rich J.

I concur in the judgment of the Chief Justice.

Question answered in the negative.

Solicitors for the Waterside Workers' Federation of Australia,Farlow & Barker.