Colliery Employes Federation of the Northern District (NSW) v Brown [1905] HCA 62; (1905) 3 CLR 255 (22 December 1905)

HIGH COURT OF AUSTRALIA

The Colliery Employes Federation of the Northern District, New South Wales (Industrial Union of Employés) Appellants; and John Brown and William Brown Respondents.

H C of A

On appeal from the Supreme Court of New South Wales.

22 December 1905

Griffith C.J., Barton and O'Connor JJ.

Shand and Watt, for the appellants.

Gordon K.C. (with him Edmunds), for the respondents.

Shand, in reply.

Dec. 22

Griffith C.J.

This is an appeal from an order of the Supreme Court making absolute a rule nisi for a prohibition to the Industrial Arbitration Court and the appellants, restraining them from further proceeding in the matter of the industrial dispute between the appellants and the respondents. The question arises in this way. The respondents are the owners of a coal mine, and the appellants are the Colliery Employés Federation of the Northern District of New South Wales, an industrial union of employés, registered under the Arbitration Act 1901. On 15th October, 1903, disputes having arisen between the respondents and their late employés in the mine, a dispute was regularly referred to the Arbitration Court by the appellants, relating to the general conditions of employment of the respondents' employés in the coal mine.

On 14th November, 1903, an answer was filed by the respondents disputing all the claims. A long delay ensued for reasons to which it is not now necessary to refer. In December, 1904, the appellants filed a new claim, asking that some other matters might be included in the original claim, and took out a summons on 27th February, 1905, calling on the respondents to show cause why the scope of the original claim should not be extended so as to include certain fresh disputes which had arisen. This summons lapsed, according to the practice of the Arbitration Court, and the employment continued for some months, various suspensions of work occurring from time to time, and finally on 15th June, 1905, all the miners in the employ of the respondents went out without notice and did not return to work. The case put to us by Mr. Gordon for the respondents was that there was no industrial dispute, and that the relationship of employer and employé had ceased to exist, except perhaps as to one member of the union who, according to the evidence, had left his employment and then, on his statement that he was not a member of the union, had been taken back. That he was the only member of the union in the employment is not in dispute. On 28th June the appellants took out another summons in the original claim, in the same terms as that taken out in December, 1904. That came on for hearing on 5th July. At that time all the members of the appellant union had left the employment of the respondents, with the possible exception already mentioned, and the respondents were working the mine with a number of other men who were not members of the union. The objection was taken for the respondents that, as the relationship of master and servant had ceased to exist between the persons for whom the union was acting and the respondents, the Arbitration Court had no jurisdiction to entertain the application or the claim.

We have had some difficulty in determining exactly what took place before the Arbitration Court. The application made by the appellants was admittedly made for the purpose of regulating the future working of the colliery as between the respondents and their employés, who were strangers to the appellants, except perhaps as regards one man. The objection was that the Arbitration Court had no jurisdiction, at the instance of a union which had no concern with the employés, to regulate the management of the affairs of the employers. The substantial point taken by the appellants was that the Court of Arbitration, notwithstanding the cessation of the relationship of employer and employé, had jurisdiction to regulate the affairs of the employers for the future. That point was clearly taken.

Another point, as to which it is not quite clear how far it was taken, is whether the jurisdiction of the Arbitration Court to deal with the claim then pending was ousted by the cessation of the relationship of employer and employé, as between the persons on whose behalf it was acting and their former employés. Those two points are quite different. Whether the objection that the Arbitration Court could not determine the matters raised by the original claim was or was not a valid objection to the continuance of the action, as it would be termed at common law, there is no doubt that the determination whether the action should go on or be dismissed was within the jurisdiction of the Arbitration Court. It is not disputed that that Court had authority to inquire into any claims properly raised by the original dispute, to dismiss the application if it thought right to do so, and to adjust any rights that might have accrued during the pendency of the proceedings. It is also said to be doubtful whether the Arbitration Court asserted jurisdiction to deal with matters affecting the future, or merely said that they would go on with the hearing of the claim, and dismiss it if they thought they had no jurisdiction to deal with the matters brought before them. If there are before the Court several matters, some within and some without its jurisdiction, it is clear that a prohibition may go as to those matters which are beyond its jurisdiction if the Court assumes to deal with them. That is called prohibition quoad. It is also, no doubt, a general rule that, on an application of that sort under such circumstances, the Superior Court will not assume that the inferior Court intends to exceed its jurisdiction. It will say then that the application is made too soon, and that the applicant must wait and see whether the inferior Court really intends to exceed its jurisdiction.

In this case special leave to appeal was granted on the main ground, that is, the very important question whether an industrial union of employés is entitled to have litigated the conditions of employment existing under an employer who does not employ any of its members. Special leave was granted to raise that question. Now, in a Court of Appeal a matter ought to be treated on the same footing as in the Court from which the appeal is brought, and there is no doubt that in the Supreme Court the substantial matter was understood to be the very important question which I have stated. Nor is there any doubt that before that Court the jurisdiction of the Arbitration Court to deal with such matters was asserted; it was the only point really in controversy. The other matter, whether the Arbitration Court had jurisdiction to deal with the claim so far as it referred to matters connected with the former conditions of employment, was hardly adverted to in argument, and was not touched upon at all in the judgment of the Supreme Court. Under these circumstances I think we are bound to treat the matter as the Supreme Court treated it. What was the real point in issue depended on a question of fact of which they were the judges, and they treated the case on the footing that the Arbitration Court had asserted jurisdiction to deal with matters affecting the future.

Another incidental point was whether, if all the members of the union had ceased their employment and one of them had gone back, that would make any difference. I doubt whether it would. There is a slight conflict of evidence on that point, but it is a pure question of fact, and in the Supreme Court it was treated as settled in one way. We are bound to deal with the substantial matter on the footing that the Arbitration Court had asserted jurisdiction to deal with a dispute instituted by a union against employers who employed none of the members of the union. If they did not intend to assert such jurisdiction, it is strange that the litigation should have gone so far without any suggestion being made to that effect. The members of the Arbitration Court are parties to the appeal, and, although of course members of an inferior Court in such cases do not generally appear as litigating parties, it is nevertheless strange that, if they did not intend to exercise this jurisdiction, they should not have said so. Nothing would have been easier than to inform the Supreme Court or this Court of that fact. It is necessary therefore to deal with the substantial question raised in the Court below. There is no dispute that, as regards dealing with the then pending dispute, the Court had jurisdiction in respect of that. The learned Judges of the Supreme Court did not apply their minds to that question at all. That is not the matter which we have to decide. The other point is one of very great importance. The proposition was put by Mr. Shand in the widest terms, that an industrial union can raise an industrial dispute with an employer, or union of employers, on its own initiative, and refer it to the Arbitration Court, although none of its members are employed by the employer, and although the employés actually engaged are quite satisfied with the terms and conditions of their employment.

In the case of The Master Retailers' Association of N.S.W. v. The Shop Assistants' Union of N.S.W.[1], which was decided by this Court about twelve months ago, we had occasion to consider the general functions of the Industrial Arbitration Court and the provisions of the Act. It was pointed out in the judgment of the Court in that case[2] that "the object of the Act therefore is to establish a new tribunal, called a Court of Arbitration, for the hearing and determination of industrial disputes and matters referred to it. It is not to constitute a board of trade, or a municipal body with power to make by-laws to regulate trade, but a Court of Arbitration, for hearing and determining industrial disputes and matters referred to it. And it will be found, on examining the language of the Act, that the words used are always words apt to be used in speaking of a tribunal." And the legislature, starting from that basis, did not think it necessary to expressly define a tribunal, or to declare that the ordinary attributes of a tribunal should exist, but assumed that these were matters of common knowledge, and proceeded to establish this new tribunal, and give it jurisdiction over certain specified matters. Now, the first condition of a litigation is that there shall be a plaintiff, and the first condition of a plaintiff's right to sue is that he shall be interested in the matter to be decided. That is a condition which governs the proceedings of all courts of justice. Are the present appellants interested in this matter? It is said that they are. The argument was based almost entirely on the interpretation of sec. 2 of the Act. When I use the word interest, I mean interest in the legal sense, not in the sense that a person would like to have the matter determined, but in the sense in which it is used in Courts of justice and in legislation. The provisions of the Act with respect to litigation are very meagre. The Act assumes the ordinary attributes or conditions of a Court of justice to exist. Sec. 26 declares the Court's jurisdiction. It says: "The Court shall have jurisdiction and power (a) on reference in pursuance of this Act to hear and determine according to equity and good conscience—(i.) any industrial dispute; or (ii.) any industrial matter referred to it by an industrial union or by the registrar; (iii.) any application under this Act; (b) to make any order or award or give any direction in pursuance of such hearing or determination;" and to do certain other things necessary for the carrying out of those powers. Sec. 28, which is negative in terms, provides that "no matter within the jurisdiction of the Court may be referred to the Court, nor may any application to the Court be made except by an industrial union or by any person affected or aggrieved by an order of the Court." Sec. 2 defines an industrial dispute as a "dispute in relation to industrial matters arising between an employer or industrial union of employers on the one part, and an industrial union of employés or trade-union or branch on the other part, and includes any dispute arising out of an industrial agreement." And an industrial dispute may not be referred to the Court except in pursuance of a resolution of the members of the union arrived at under prescribed circumstances. It is said that it is to be inferred from those provisions that a union can refer to the Court for settlement any industrial dispute that it pleases. In order to ascertain the nature of an industrial dispute we have only to refer to the interpretation section, and if we find that there is a dispute in the strict and literal meaning of that section, there is a power at once for any union to refer it to the Court, and so to give rise to the exercise of the Court's jurisdiction. As to that we remark, first of all, that the industrial union, as a collective body in the nature of a corporation, has no individual relation with the employer at all. A union as such does not contract with the employer. It represents in a corporate sense the individual members of the trade. We again remark that sec. 28 is negative. It assumes certain things. And from the definition in sec. 2 it appears that the parties to an industrial dispute must be an employer on the one side and an industrial or trade union on the other. Unless there is an industrial dispute a matter cannot be referred to the Arbitration Court. What follows from that? It follows that an industrial dispute between an employer and employés cannot be referred to the Arbitration Court except by an industrial union—except possibly under other powers contained in the section—but it cannot be referred under the words which I have read. But does it follow that any claim that an industrial union may make in the abstract is an industrial dispute? Before there can be an industrial dispute, it is a truism to say there must be a dispute, and it must be a dispute relating to industrial matters. Industrial matters are matters relating to the terms and conditions of employment between employer and employé in an industry. So that, until employer and employés differ as to the terms and conditions of employment, there is no industrial dispute. Otherwise there is nothing to settle. But so soon as a dispute arises an industrial union may take it up and refer it to the Arbitration Court. But if the union has nothing to do with the particular employés who are parties to the dispute, what interest, in the legal sense, has it in the dispute? How can it be said that it as plaintiff has any legal interest in the matter? Here are employers and employés going along in perfect amity. A union outside the employés altogether is dissatisfied with the conditions of peace and quietness which exist, and wishes to have an industrial dispute, and the contention is that it is entitled to interfere and invoke the aid of the Arbitration Court, not to quiet an existing dispute, but to create one and get it settled. I cannot think that that was the intention of the legislature. It certainly does not fall within the ordinary meaning of the terms used in the Act, and I do not think that it follows as a necessary inference from the language relied upon by the appellants. That was the view of the Supreme Court, and in that I think they were quite right. I think that the union was not entitled to create an industrial dispute between an employer and employés with whom they have no connection.

So far, therefore, as in this case the Arbitration Court has assumed to deal with the questions raised by the union as to the conditions which should govern the relationship between the respondents and their employés for the future, I think that they have gone beyond their jurisdiction, and that, for the reasons given at the outset, the matter was properly raised before the Supreme Court.

With respect to the minor matter, that the Arbitration Court had jurisdiction to deal retrospectively with the claims raised in October, 1903, and December, 1904, it is admitted that the prohibition is too large. That however is not a matter affecting the real and substantial question in this case.

I think, therefore, that the Supreme Court was substantially right, and that, though the rule should be modified so as to correct so much of it as was made by the Supreme Court per incuriam, owing to their attention not having been drawn to the point, the appeal substantially fails.

Barton J. and

O'Connor J.,

concurred.

Order of the Supreme Court varied by inserting the words "as regards matters relating to the employment antecedent to June 1905." Order so varied affirmed.

Solicitor, for the appellants, W. A. Reid.

Solicitors, for the respondents, Sparke & Millard.

[1] [1904] HCA 39; 2 C.L.R., 94.

[2] [1904] HCA 39; 2 C.L.R., 94, at p. 107.