R v Merchant Service Guild of Australasia [1914] HCA 36; (1914) 18 CLR 273 (9 June 1914)

The King and The President of the Commonwealth Court of Conciliation and Arbitration and the Merchant Service Guild of Australasia.

The applicants in this case are a number of Tasmanian persons, firms and companies, owners of vessels trading in Tasmanian waters, against whom an award has been made by the President of the Court of Conciliation and Arbitration as parties to an industrial dispute alleged to extend beyond the limits of any one State. The only other persons included in the award are owners of vessels trading exclusively in the waters of New South Wales and owners of vessels trading exclusively in the waters of South Australia, which two States are separated from one another by the whole length of the coast line of Victoria, and are both separated from Tasmania by the waters of Bass's Strait.

The Tasmanian vessels involved in the alleged dispute are of three classes: first, small craft trading wholly within the port of Hobart; second, small seagoing vessels trading wholly on the Tasmanian coast; and, third, one vessel which trades between Tasmania and Victoria. As to the first class it is alleged that the conditions of employment in these vessels are essentially different from those in seagoing vessels, and that the only nexus between them and the other alleged disputants is that their avocations are in both cases carried on upon the water and that the masters and officers engaged in both trades desired an increase of pay. It is further contended that a reference to the award itself will show that many of its provisions have no application to vessels engaged in the port trade, for instance, the provisions relating to the "home port," and the distinction made between service "at sea," which is defined as referring to "the time from departure to arrival," and service "in port" which is defined as referring to "the time from arrival to departure."

The history of the case is a singular one. In 1911 the claimants, the Merchant Service Guild of Australasia, filed a plaint in the Arbitration Court, joining nearly one hundred persons, firms and companies of ship-owners as respondents, and asking for an award as to a number of matters affecting the masters and navigating officers of ships trading in Australian waters. An award was made on this plaint on 25th April 1912.

The learned President in his judgment said that as nine of the respondents had already entered into an agreement by which the matters in dispute in respect of most of their ships were adjusted his award would apply only to such of their ships as were not covered by it.

He proceeded to make an award against most of the other respondents, subject to certain reservations. The respondents included in the award comprised the present applicants, and also the owners of the vessels whose trade was confined to the waters of New South Wales and South Australia respectively.

Separate orders nisi for prohibition were then applied for on behalf of the New South Wales owners, the South Australian owners, and the present applicants, on the ground that there was not any industrial dispute to which they were parties extending beyond the limits of any one State, and on 13th December 1912 the orders nisi were made absolute (R. v. Commonwealth Court of Conciliation and Arbitration; Ex parte Allen Taylor & Co. Ltd.[1]) on that ground. Shortly afterwards a few of the employees of the applicants wrote letters to their respective employers asking for an increase of wages and "other conditions" in accordance with the terms of that award.

On 15th January 1913 a letter was sent by the claimant organization to about 130 persons, firms and companies, owners of vessels trading in Australian waters, including those who had been made respondents to the former plaint and many others, with which letter was sent a log or schedule of claims made by the orgarization on behalf of its members. The letter requested a conference with the Guild and the representatives of the employees, and demanded as a basis for the conference that the employers should enter into an industrial agreement embodying the terms and conditions of the log for a period of one year. It further stated that "drastic resolutions and the foregoing terms and conditions had been carried" by the members of the Guild in New South Wales, South Australia and Tasmania, "the nature of which and the general and serious unrest in the industry have received publicity through the press." It finally intimated that failure to comply with the demand within 14 days would be treated as a refusal to accede to it.

The log included all that had been granted by the previous award, with some further demands.

In the following month, February 1913, the President of the Arbitration Court summoned a compulsory conference of employers and employees, which was held at Melbourne in that month, and was attended by representatives of the present applicants, who asserted that they had not in fact any dispute or disagreement with their employees members of the Merchant Service Guild or any other masters or persons by whom an award was desired. The conference was abortive, and the learned President thereupon referred the matter to the Court. On 23rd October 1913 he delivered judgment, in the course of which, after mentioning the sending of the log, the calling and holding of the conference, and the reference to the Court, he proceeded as follows:—

After referring to some of the evidence relating to the New South Wales ships he proceeded:—

The learned President, therefore, apparently held that, the only parties to the dispute then before him being the New South Wales, South Australian and Tasmanian owners against whom the former award had been made, the fact that these owners, having separately obtained decisions that they were not parties to a common dispute extending beyond any one State in 1911, had by doing so conclusively proved that they had become parties to such a dispute in 1913, because, as he says, their action kindled the indignation of the claimants.

I cannot concur in this opinion. It is, therefore, necessary to inquire whether there are any other facts which establish the existence of a common dispute within the jurisdiction of the Court.

I have very recently, in the Builders' Labourers' Case[2], stated, the principles which in my judgment are applicable to the decision of the present case, and I do not think it necessary to repeat them.

I have already mentioned the fact that after the log had been delivered the President summoned a compulsory conference which did not result in any agreement. Even if the mere failure to come to an agreement were sufficient to establish the existence at that time of some dispute in fact, it cannot alter the nature and quality of the dispute, and it is quite immaterial to the question whether the dispute the existence of which is so established is an industrial dispute extending beyond any one State. The persons summoned to the conference included the owners against whom an award had already been made, and who were no longer parties to any dispute. The only remaining disputants were the owners and officers engaged in the local trade of the three States, between whom the only bond of connexion was the common demand.

There are, however, further facts in the case which, of themselves, are sufficient to show that some, at least, of the applicants were not at the date of the award parties to any dispute.

The question whether a dispute with regard to the conditions of employment in vessels whose trade is confined to the port of Hobart is purely local in character and incapable of extending beyond Tasmania is now only material as regards one of the applicants, the firm of Risby Brothers, for reasons which I will proceed to state.

During the hearing of the plaint before the Arbitration Court information was given to some of the applicants that many of the masters of their vessels employed in the port of Hobart, although nominally represented by the claimant organization, were satisfied with their existing conditions of employment, and did not desire any interference with them. A memorandum was thereupon drawn up, dated 20th September 1913, addressed to the President of the Arbitration Court and signed by twenty of such masters, as follows:—

The signatories to this memorandum included the masters of all the vessels owned by the applicants the Huon Channel & Peninsula Steamship Co. Ltd. and James Rowe & Sons Ltd. The memorandum, with affidavits verifying the signatures and giving particulars of the employment of the signatories, was duly transmitted to Melbourne, and presented by the applicants' solicitors to the Registrar of the Arbitration Court, who on 13th October informed them that as the evidence in the case was closed the President had declined to read the affidavits except with the consent of the claimants. Such consent was asked for and refused.

In my judgment there is no ground for doubting the bona fides of this document.

It also appeared that three other of the applicants, namely, James Sheppard & Co., The North Huon Steamship Co. Ltd., and Henry J. Condon, had before the holding of the compulsory conference discontinued their shipping business, and had thenceforth ceased to have any members of the claimant organization in their employment.

I think, therefore, that those five applicants, even if they had ever been parties to the alleged inter-State dispute, had ceased to be parties to it before the award was made.

The only other applicants engaged in the Hobart port trade are the firm of Risby Brothers.

As regards the second class of vessels, I am of opinion that the dispute was in its essence local and confined to Tasmania. It is not, therefore, in my opinion, for the reasons which I gave in the Builders' Labourers' Case[3], capable of extending beyond the State of Tasmania. Even if it were capable of so extending, there is, as I have already said, no evidence of extension beyond the fact that the employees joined in the common demand of 15th January 1913.

With regard to the vessel which trades between Tasmania and Victoria, I have had more doubt. But, on the whole, I am of opinion that the case of this vessel cannot be separated from that of all the other Tasmanian vessels. To do so would be in effect to make the owners of it parties to a dispute quite different from that in which it was really sought to involve them, i.e., a dispute common to themselves and the other Tasmanian owners.

For these reasons I am of opinion that there was not any dispute extending beyond the limits of any one State to which any of the applicants were parties. I think, therefore, that the order nisi for prohibition should be made absolute in favour of all the applicants.

Assuming, however, that there was such a dispute to which the owners of vessels trading wholly within the port of Hobart were parties, I am of opinion that the order nisi should be made absolute as to all of them except Risby Brothers, as to whom I express no opinion. It should be also made absolute as to the three applicants who had ceased to be engaged in shipping.

I have not thought it necessary to occupy the public time, which is valuable, by stating my reasons in greater detail. They must stand or fall with the reasons I gave in the Builders' Labourers' Case[4].

The applicants are all Tasmanian owners. The vessels of some of them ply only within the port of Hobart. Those of the remaining owners trade only upon the Tasmanian coast, with the exception of one steamer, which trades between Tasmania and the mainland. The award was made not only against the applicants but against a number of owners of steamers whose operations are confined to the coast of New South Wales, and a number of other owners whose vessels do not go beyond the South Australian coast. The seaboard of the mainland of the State of New South Wales and that of the mainland of the State of South Australia are separated by the Victorian coast, whilst Bass's Strait lies between the Island State of Tasmania and the mainland. We are not concerned with any inter-State traffic in this case, unless the trips of the Marrawah from Tasmania to Victoria and back can be said to constitute a nexus of inter-State trade between the three States or two of them together. The respondent association, however, rests its case on quite other grounds, and no such importance was placed on the instance of this one vessel. It would have been a weight too heavy for so slender a thread.

The facts which constitute the history of the alleged dispute and of the proceedings need not be repeated.

The period within which the dispute, if any, existed is the interval between the first award, that of 25th April 1912, and 24th February 1913. On 13th December 1912 this Court made absolute certain orders nisi for prohibition applied for respectively by the present applicants, the New South Wales owners and the South Australian owners (See Allen Taylor's Case[5]). It was held that so far as they were respectively concerned there was not at the time of the award, namely, 25th April 1912, any industrial dispute extending beyond the limits of any one State. Was there such a dispute between that time and 24th February 1913, the date of the learned President's order referring the matter to the Court of Conciliation and Arbitration after the compulsory but fruitless conference? The evidence on that subject is that a claim or log was posted to the several owners in the various States on 15th January 1913 with a demand for a conference and agreement, intimating that if the demand were not acceded to within 14 days it would be concluded that the recipient declined to accede thereto. The letter intimated that "drastic resolutions and the foregoing terms and conditions of employment" had been carried by the members of the Guild in South Australia, Tasmania, and New South Wales. As a matter of fact resolutions expressing discontent and threatening a cessation of work had been passed at Port Adelaide, Hobart, and other places. The terms of the letter of demand were not complied with by the owners. In December 1912 and January and February 1913 certain individual employees requested from their employers by letter increases of wages and other concessions such as had been included in the award the subject of the prohibition of December 1912.

Now, unless there was a single dispute extending beyond the limits of any one State at the time when the order of 24th February 1913 was made, it does not seem to me that jurisdiction followed from the fact, which, for the sake of argument only, may be conceded, that at the time employees, organized or unorganized, were in dispute with their employers in the three States with which we are concerned. A dispute in New South Wales, a second in South Australia and a third in Tasmania are three disputes. To constitute a single dispute (see the Sawmillers' Case[6] and the Felt Hatters' Case[7]) there must first be at least some nexus of material interest between the claimants in the one State and those in another. It is not enough that they all claim the same things on paper. It is easy to make claims of that kind, even when the interests of the respective claimants are as widely severed as are the States in which they work. If the existence of a separate dispute in each of the three States under the circumstances here existing were to constitute a single dispute, then a nexus of sympathy would be as effective and as real as a nexus of material interest. But without some nexus other than mere sympathy it is impossible that disputes arising in different States in wholly distinct operations, independently carried on, can coalesce into one. Here the applicants have no community of interest with owners engaged in the coasting industry of South Australia or with owners engaged in the coasting industry of New South Wales. Their employees respectively are as little concerned with each other as are the employers, except in sympathy, upon which awards cannot be founded. The coasting industry of one State has no material connection with the coasting industry of another. They do not compete with each other. They do not produce things which enter into competition one with another They cannot directly, and I fail to see how they can even indirectly, act and react upon each other. They are separated, localized and isolated. I do not see how in respect of the coasting trade peculiar to a State like Tasmania, separated as it is by hundreds of miles from the coasts of any other State, there can in sense or reason be a dispute extending beyond the limits of Tasmania, or how in respect of the coasting trade peculiar to another State similarly separated, there can be a dispute extending beyond the limits of such State into Tasmania. A dispute in the purely coasting industry of Tasmania is never a dispute in the purely coasting industry of South Australia or New South Wales. To say so is as reasonable as to say that two poodles amount to a foxhound because each is a dog.

I hold, therefore, that the dispute, if any, between the applicants and their masters and officers, is not capable of extension into South Australia or New South Wales.

If it were so capable I do not think that upon the evidence there is in this case any dispute which has so extended, because I do not see how anything which has occurred in the other States between owners and employees can be held to be identical with the dispute alleged to have existed here. The failure to agree in the compulsory conference cannot turn into an inter-State dispute that which previously was not one. For that purpose it is as ineffective as a joint demand.

It is argued that the harbour boats are very distinct from the seagoing coasters in the conditions of employment dictated by their purposes and uses; that the conditions demanded in the claim or log are quite inapplicable to vessels which merely ply within a port, and that it is questionable whether the claim provides subject matter for an award with respect to the latter class of vessels. I do not think it desirable to discuss that point at present, though in view of the document of 20th September 1913 it may be said that the distinction applies only to the boats of Risby Brothers.

While in my opinion the prohibition ought to go, my view that there is not and cannot be such a dispute as is asserted, is not accepted by the majority of the Bench. I will therefore only add that I think that the case of Risby Brothers is one for separate treatment, and I should concur in its being reserved for further consideration.

It is trite law that an applicant for prohibition has the burden of making it perfectly clear to the Court that the tribunal to be restrained has no jurisdiction to do the act sought to be prohibited.

Where that tribunal is an inferior one, he comes into the superior Court on such an application with no presumption for or against that jurisdiction, and the onus probandi rests with him. He may discharge it by pointing to the law itself, with reference to an admitted state of facts; or he may, if the jurisdiction depends on controverted facts, establish them as he asserts them to be, to the satisfaction of the Court, but the onus is his, and if he fails to discharge it, his application fails altogether. See, for instance, In re Birch[8].

Some doubts were expressed during the argument as to how far this case was governed by the decision in the Builders' Labourers' Case[9], and as to what principles of law were involved in the majority judgments in that case.

In order to prevent any misapprehension in that respect I state, with the concurrence of my learned brothers Gavan Duffy, Powers and Rich, in a succinct form five propositions of law which are now to be taken as expressly or by necessary implication to be definitely settled. They are:—

(1)

The phrase "industrial disputes extending beyond the limits of any one State" in sub-sec. XXXV. of sec. 51 of the Constitution is to be construed according to the natural and ordinary meaning of the words as understood at the time of the passing of the Constitution Act.

(2)

There may be an industrial dispute "extending beyond the limits of any one State" although there is no inter-State competition in the products or services of the industry, and although the operations and conditions of the industry in one State have no direct action or reaction with respect to the operations or conditions in another State.

(3)

The word "dispute" means a real dispute in fact, and is not limited by any artificial criteria.

(4)

The words "extending beyond the limits of any one State" as applied to a dispute mean that the dispute is one "existing in two or more States" or, in other words, "covering Australian territory comprised within two or more States."

(5)

The existence or non-existence of such a dispute within the meaning of sub-sec. XXXV. is to be ascertained by this Court by the ordinary rules of evidence applicable to questions of fact.

And now I proceed to state for myself the views I have formed on the present application. Taking the above propositions as a guide, the whole question of jurisdiction in this case depends on matters of fact, excepting so far as the sixth of the grounds of objection to be presently mentioned calls for a determination of law, and excepting also the seventh.

It is important to remember that when an application of this kind is made on the ground that certain specified facts essential to the jurisdiction were not proved, that is the issue raised by the applicant, and the attention of the respondent is naturally directed to those facts alone. He may or may not find it necessary or convenient to refer to other parts of the case, to explain or elucidate the portion attacked; and in so doing he may disclose an incurable flaw which in law may compel the Court to grant a prohibition.

But if, in adverting to incidental facts, he merely introduces some of those necessary for other parts of his case, the applicant cannot, on failing to sustain his own original ground, be allowed in the absence of express permission to rely on the incompleteness of proof in respect of other essential facts, which, not being attacked, were not attempted to be defended. Bearing these principles in mind the position is as follows:—

The applicants here set out in their affidavits, as they were bound to do, the reasons why they asserted there was no jurisdiction to make the award as to them, and the grounds of the rule must be read with reference to them. Those reasons were:—

(1)

That they were all engaged in what was purely Tasmanian shipping trade, and their business could not in law be considered as part of one Commonwealth shipping industry.

(2)

That at least some of them, that is, the port trade employers and the intra-State coastal trade employers and particularly the former, were incapable in law of being so considered.

(3)

That the port trade, intra-State coastal trade and inter-State trade were separate and distinct industries.

(4)

That if in fact and in law they should be considered as part of one shipping industry they were in fact not in dispute at all with their employees.

(5)

That any such dispute, if existing, was a separate dispute from any existing on the mainland, and could not be blended by the alleged united demand and refusal.

(6)

That any demand by the employees was a sham, a mere pretended demand, the men being really contented with their condition, and in effect joining in the claim with their fellow employees in other States really by way of comradeship or conformity. The dispute, it was urged, in this aspect was not real.

(7)

That the demands united in the log were not common to all the employees in all the States, and all the branches of the industry in the various States.

(8)

That, as to three of the applicants, they had ceased to carry on business before the compulsory conference, and have never since engaged in it.

But no question of fact whatever was raised as to the existence or reality of dispute otherwise than in Tasmania, and there was no obligation on the respondents to address their minds to anything further, except so far as it was incidental to the issue as to Tasmania. Some arguments that were based on the insufficiency of the respondents' evidence, as to the existence of dispute in other States, are consequently passed by as irrelevant.

Dealing with the various items of attack properly raised, the first and second, which are questions of law, may be considered as settled by the decision in the Builders' Labourers' Case[10].

The third is partly law and partly fact. The fourth and sixth are pure questions of fact. The fifth is a question of fact as to whether there was a dispute which, considered in its integrity, was one extending beyond the limits of one State.

The seventh, though implicitly covered by several previous decisions, has been argued anew on legal grounds.

The eighth, is a question of law, and may be at once disposed of. The three applicants, Henry J. Condon, James Sheppard & Co. and the North Huon Steamship Co. Ltd., having wholly ceased to carry on business and to have any employees members of the claimant organization before the compulsory conference—that is, before the Court of Arbitration had cognizance of, that is, was seized of, the dispute (if any) theretofore existing,—there was no jurisdiction to make any award as against those employers. That objection is therefore good. But it is now raised for the first time, and it is remarkable that so manifest a reason should not have been disclosed to the learned President during the hearing of the case.

Apart from those respondents, the circumstances may be briefly summarized. On 25th April 1912 an award was made which included the present respondents and many others. The present respondents obtained a writ of prohibition from this Court in the first Merchant Service Guild Case[11], as did some other parties to the award. The date of that prohibition was 13th December 1912 and it freed about thirty-eight of the parties—employers—leaving about forty-three others still bound by the award. The substantial ground, or at least one substantial ground, of the decision was that there was no knowledge of or communication to the employers of discontent or dissatisfaction prior to the formal demand, and so no reality in the dispute was said to exist. This had been strenuously argued on behalf of the applicants. Before the decision was given, namely, on 2nd, 6th and 9th December, meetings of the employees were held in Sydney insisting on their alterations contained in the demand said to be fictitious, and in order to evidence their insistence on a betterment of conditions passed resolutions to reiterate by a new demand not only what had been asked before but also something additional. Meetings of the employees' Guild in Hobart and in other places confirmed those resolutions, and declared their intention to cease work in case of refusal, and in Hobart the resolution was signed by most of those men who are now thought by the majority of the Court to have been quite "satisfied" with their working conditions. Some of the Hobart men followed up that resolution with separate requests, presently referred to. The men having in fact declared their actual intention, the organizing secretary of the Guild proceeded to various places, including Hobart, to formulate that intention, so as to evidence in a complete and combined form, that is, in concert, the combined and corporate requirements of the employees which then existed irrespective of any written statements of them. That combined statement of altered conditions is usually termed a "log," and has been so called in this case. The name, I suppose, is innocuous, so long as we really understand that it simply means a statement of desired working conditions, and the number of those conditions, one or a hundred, does not alter the principle. It is objected that to entertain such a demand is to assume to regulate the industry. But if settlement of one item be not "regulation," neither can the settlement of a hundred items. If each of a hundred can be dealt with separately, it must be equally competent, and much more convenient, to deal with them all conjointly. Authority of a very pronounced character having been formally given to present the combined demand, some of the men themselves proceeded also to demand individually the terms they personally desired, and to point out that it was difficult to live on the wages they were then receiving. The demands were made, and have been refused, and both demands and refusal have always been determinedly persisted in.

It is said that this Court ought to conclude against the reality of the dispute by reason of three circumstances: first, that the learned President did not award any of the extra claims added to the prior demand; next, that the letters individually written show that the writers did not really want to join in the combined demand because they did not request matters not concerning themselves; and, lastly, that on 20th September 1913, after the President had closed the case, a letter was signed by a number of masters of vessels trading in the port of Hobart stating they had not had any dispute with their employers and were and always had been content. The letter had been offered to the President after he had closed the case and was considering his award. He very properly declined to look at it, except by consent, which was refused.

Now, as to the first reason. It is obvious that on 23rd October 1913 there was some reason for believing that the prohibition case (Allen Taylor's Case[12]) had laid down a rule of law that knowledge of a communication to the employers of discontent or dissatisfaction prior to a formal demand was an essential of a dispute. That has since been shown to be unfounded. But it is sufficient to account for the President declining to imperil the validity of a whole award by including those claims. Further, as a matter of discretion, the President probably thought it fair to place both awards on the same footing.

With regard to the second ground, the individual letters seem to me, by reason of their express requests, to strengthen the evidence of actual discontent, and, by reason of their being confined to what concerned the writers, to demonstrate their bona fides. There is nothing inconsistent with the authority given to Manning, the secretary.

Then, as to the letter of renunciation. This raises a question which, though one of fact, may be so calculated in my view to create a dangerous precedent, that in the circumstances I feel bound to examine it with some care. On all other points I am in accord with the majority of the Court, but on this one point I have the misfortune to differ. If, in a case where a party sui juris and free to act as he pleases chooses to admit he does not wish to proceed, no one could deny the primâ facie force of his admission that he has no cause of complaint and does not wish to proceed. He is the guardian of his own interests, which stand apart from all others. But this is by no means such a case, and cannot be disposed of so summarily. A large proportion of these men had in fact freely authorized the collective action eventuating in a combined demand. Some of them had also personally made demand by letter; they were represented at the hearing; proceedings continued from February to September; no person had suggested their actual satisfaction with the existing conditions, though, if that had existed, one would naturally have expected the fact to be expressly stated without waiting till the Court had reserved judgment. There is considerable evidence of determined insistence on better conditions, and evidence of stringent treatment to those who ventured to push their demands. For instance, it is sworn in Mannirg's affidavit of 15th February 1913, and not contradicted, that after the award of April 1912 came into operation, money which the employees considered they were entitled to under the award was withheld by some of the employers, including James Rowe & Sons Ltd. and the Huon Channel & Peninsula Steamship Co. The employees then moved the Guild, which intervened, and threatened legal proceedings or a cessation of work. This threat was successful in some cases. Whether it was so in the case of the two companies named is not stated, but apparently not, in view of the letters of January 1913. In any event it is clear the men were dissatisfied with the lower wages, and made their demands first in a hostile manner from the employers through the Guild, and next in the resolution of 21st December 1912. The reiterated demands of some of the men in the letters of 9th January 1913, though couched in humbler terms, take nothing of substance from the manifest discontent prevailing as to treatment.

Then, as to treatment, there is the case of F. R. C. Thorne, who was a master in the employ of the Huon Channel & Peninsula Steamship Co. After he had been over three years in that service, he was about to join the Guild. He says in his declaration that the manager said:—"It strikes me if some of you fellows want to get the sack you are going the right way about it," and on 29th April 1912 Thorne got a week's notice, though he claimed a month's notice. On 2nd May he was offered a week's wages in lieu of notice, which he declined, claiming proper notice. He had to go however, and so far, that is, up to the date of his declaration, he has not received the money. He was at once replaced by a non-Guild man, who still remains. On asking later for the reason for dismissal, the manager refused to give any, and the man believes it was simply because he was a member of the Guild. During his four years' service in the busy seasons he on several occasions worked 24 and 30 hours at a stretch without rest. Now, if that happens to one master in the service of the Company, to say nothing of similar things occurring in the service of some other Tasmanian employers, it is not difficult to conceive the same thing happening, or anticipated, with respect to others. And if so, it is not easy to think the men were "satisfied" merely because it is so stated in the letter of 20th September 1913. It is very easy to understand what effect Thorne's treatment and dismissal would probably have upon their minds, when one of the masters in the Company's service went round with the document for signature. How the letter of 20th September 1913 came to be prepared, we are not informed; what induced the signatories to append their names is not stated; two persons, one employee of each of two firms, apparently went round and got the signatures, but as to what was said then by any person on either side, there is not a syllable to enlighten us. One thing is clear: there is no statement on oath by any of the men concerned, or by anybody else, that what appears in that letter is true. And that, in the circumstances, is the least that could be expected of the applicants, who have to discharge the burden already mentioned, and who, inferentially, display these men as false to their fellow employees, false to their employers, and false to themselves and those dependent on them. The elimination of some parties may easily prejudice other parties, and through them possibly also the public welfare, if there really is a dispute in which they are concerned. Moreover, if an employer by some sort of suasion, the nature of which is not disclosed, can only procure his own employees to sign such a document, he can easily place his fellow employers, less adroit, in a very unfair position relatively to himself. Consequently, if any parties are primâ facie properly and voluntarily present, and particularly if they have so continued during the hearing while their claims were pressed, it is as important that the Court should be satisfied of the propriety of their attempted withdrawal as of their original inclusion. It is not ordinary human nature for employees to decline spontaneously the possibility of better conditions, nor is it an ordinary characteristic of British seamen voluntarily and suddenly to abandon their fellow seamen in a common struggle. The bald letter of renunciation of 20th September 1913, coming from the possession of the employers, without explanation, or verification of its substance, is not, I think, entitled in the circumstances to any weight whatever.

On the whole, then, not only have the applicants failed in my opinion to clearly establish the absence of a dispute, so far as Tasmania is concerned, but the facts satisfactorily lead me to the contrary conclusion.

The third objection relates to what is left of the port trade. I share the opinion of the rest of the Court that this should, both as to the law and the facts involved, be reserved for further consideration, and therefore I say nothing with respect to it.

There remains only the seventh objection. As to that, we have again to look at the actual nature of an industrial dispute, not according to some ideal symmetrical legal conception, but as such a thing exists in actual life. In a complex industrial structure, such as the shipping trade, it is impossible to segregate, as a matter of law, either the organizations of capital or the organizations of labour, and, still less, the internal subdivisions of specialized industry, either on the side of capital or on that of labour, which perform their respective functions in satisfying the public requirements. The industrial conditions of the various employees co-operating in the industry, necessarily, by reason of the mutual co-operation, have some points of resemblance, and, by reason of the varying functions, have also some points of difference. But so long as the common nexus of the industry is established, these subordinate and incidental points of difference are not destructive of the integrity of a general dispute.

Here the dominating question was one common to all, namely, the minimum wage; and (reserving the question as to the participation of the port vessels) beyond all doubt the dispute as to this was one as to all the States concerned. Bass's Strait no more separates the marine services of Tasmania from those of the rest of the Commonwealth than the Australian Bight separates those of Western Australia. As to this the Commonwealth is indivisible. Another highly important item in dispute (subject to the same reservation) was universal to all claimants, namely, the conditions of discharge.

Other conditions claimed and awarded may or may not apply to all the port vessels, assuming them involved in the dispute; but they are common to all the States in respect of coasting and inter-State vessels. Either they apply also to the port vessels if these be included in the dispute, in which case the objection is groundless; or they do not, in which case the only question is whether claims applicable only to one set of employees in an industry can be lawfully joined with claims applicable to all. Unless that be answered in the affirmative, insuperable obstacles would stand in the way of all Commonwealth arbitrations, and even of State arbitrations as they at present stand, and would run counter to decisions of this Court, and to all the accepted notions of trade disputes and arbitration as they had existed up to 1900.

Reserving, then, for further consideration the facts as to Risby Brothers' port trade, the rule for prohibition should otherwise in my opinion, except as to the three respondents already specified, be discharged. As to them, it should be made absolute.

In order to succeed the applicants in this case must show that the Court of Conciliation and Arbitration had no jurisdiction to make an award against them because they were not parties to any existing dispute extending beyond the limits of any one State within the meaning of sec. 51 (XXXV.) of the Constitution.

It is now settled law that such a dispute may be constituted by bodies of disputants in more than one State although each of such bodies is engaged in business of such a nature as not to affect by competition or otherwise the business carried on in another State. If the various disputants in one interest join together and demand and insist on having common industrial conditions, and such conditions are definitely and finally refused by those from whom they are demanded, then such a dispute does in fact exist. We think that such a dispute does exist here, but we also think that Henry J. Condon, James Sheppard & Co. and the North Huon Steamship Co., having ceased to be employers in the shipping industry before the Court of Conciliation and Arbitration had cognizance of the dispute, cannot be made subject to the award. We are satisfied to accept the definite statements of the employees of James Rowe & Sons Ltd. and the Huon Channel & Peninsula Steamship Co. Ltd. that they were not in dispute with their employers; and so hold that neither they nor their employers are subject to the award. With respect to these applicants we think the prohibition should go. It was strongly urged before us that the dispute could not in law, and did not in fact, extend to employers whose business was conducted on steamers trading only within the port of Hobart. On that subject we desire to say nothing at present. Risby Brothers are, we understand, the only employers whose liability depends on a decision of these questions, and the judgment which is delivered to-day is not intended to affect them. None of the other applicants has satisfied us that he was not a party to the dispute which we think existed, and with respect to them the order for prohibition should be refused.

The rule nisi in this case was granted on the following grounds:—1. That at the time of the filing of the plaints mentioned in the said award and at the date of the award no industrial dispute existed between the claimant association or any of its members and the applicants herein or any of them. 2. That no industrial dispute extending beyond the limits of a State and extending to the State of Tasmania existed between the claimant organization or any of its members and the applicants herein or any of them. 3. That as to the applicants herein the said award was beyond the jurisdiction of the said Commonwealth Court of Conciliation and Arbitration.

The history of the case has been referred to by my learned brothers in the judgments just delivered, and the fact has also been mentioned that a previous award made against the same respondents was set aside by the High Court in Allen Taylor's Case[13] on 13th December 1912.

Can a dispute, in the shipping industry, between the masters and navigating officers of vessels and their employers extend beyond the limits of one State, within the meaning of the Commonwealth Conciliation and Arbitration Act and the Constitution, if the different owners of the vessels in the different States at the time of the dispute confine the operations of their vessels to their own State?

If so, was there a dispute in this case, and did it in fact extend beyond the limits of one State?

A third question must also be considered after the decision of this Court on the special case submitted in this matter (see Newcastle & Hunter River Steamship Co.'s Case [No. 1][14]), namely: If there was not an actual dispute, was there in February 1913 a threatened, impending or probable dispute within the meaning of sec. 4 of the Commonwealth Conciliation and Arbitration Act 1904-1911?

As to the first question, it is clear from the judgment in Allen Taylor's Case[15] that it was not on the ground referred to in question 1 that the Court found there was not a dispute of which the Arbitration Court had cognizance. Referring to this question the Chief Justice, in Allen Taylor's Case[16], said:—"The objection most strenuously insisted upon was that intra-State shipping is a different industry from extra-State or inter-State shipping, so that there cannot be a single industrial dispute embracing both. I am unable to accept this contention. In the course of argument I instanced the case of two steamers belonging to the same owners lying in the port of Brisbane, one of which is about to sail for the Gulf of Carpentaria, a distance of nearly 2,000 miles wholly in Queensland waters, while the other is about to sail to Sydney and Melbourne, a distance of 1,000 miles through New South Wales and Victorian waters. It seems to me obvious that if the masters and officers of such ships made common cause with respect to a matter affecting them in the same manner there might well be a single dispute extending beyond the limits of any one State. But I express no opinion on the question whether, although a controversy between the claimants and the present applicants and one between them and the other respondents to the plaint might be a single dispute, the nature of the claims made would or would not have established that position, if the other necessary elements of a dispute were present."

That question was not decided by this Court, but this Court, by a majority, held in the Builders' Labourers' Case[17], in Sydney last month, that although the building industry was, in a sense, local to each State, an industrial dispute between the employers and the employees in that industry as to some common demand could, and did in that case, extend beyond the limits of one State, and did extend to Tasmania.

For the reasons given by me in my judgment in the Builders' Labourers' Case[18], I hold that a dispute in the shipping industry by the masters and navigating officers of vessels with their employers can extend beyond the limits of one State, although at the time the dispute arises or extends the vessels of the employers are not actually competing with each other for inter-State trade, and although the owners of the vessels in each State confine the operations of their vessels entirely to their respective States.

It appears to me that the contention that an industrial dispute cannot extend beyond the limits of one State because industries carried on solely in one State are under the control of the State and the federal Parliament cannot legislate so as to interfere in any way with the State industries, is not sound. It is true generally speaking, but once the power of the Commonwealth Parliament under the Constitution to legislate is clear, State control is subject to that power. The Commonwealth Parliament has unqualified power under sec. 51 (XXXV.) to pass laws with respect to the prevention and settlement by conciliation and arbitration of inter-State disputes; and that power is effective, even if the laws affect State shipping or other State industries when effect is given to them. The question whether the dispute does or does not extend does not depend on which Government has control of different parts of the industry affected, the Commonwealth or the State; or whether the employers carry on business in one State only; or on the fact that the industry is in a sense local, such as building, mining, shearing, &c. It is the persons engaged in the industry who dispute, and cause a dispute to extend, without the slightest consideration to State boundaries.

As to the question whether there was a dispute at all between the masters and officers and their employers, the respondents, I venture to add some remarks to those contained in the judgments just delivered by my learned colleagues, because it appears that I differ from my learned brothers who, with me, form the majority in this case, as to what constitutes an inter-State dispute cognizable by the Arbitration Court.

The fact that the High Court held in Allen Taylor's Case[19] that there was not at that time (13th December 1912) any dispute between the claimants and the respondents was urged as a reason why there was not at the time the matter was referred to the Arbitration Court on 24th February 1913 any dispute. A reference to that decision, and what took place from 13th December 1912 up to 24th February 1913, and since, must, I think, dispose of that contention, and also prove that there was a dispute on 24th February 1913, and at the date of the award (sec. 38 (b)).

In Allen Taylor's Case[20] the learned Chief Justice decided upon the facts then before the Court in that case, that the applicants were not at the time of the filing of the plaint parties to an industrial dispute extending beyond the limits of one State. In his judgment he gave the reasons why he arrived at that conclusion.

The following were amongst the reasons mentioned by the learned Chief Justice:—

(1)

"The time limited" (by the demands), "fifteen days, during which the 83 addressees of the letter scattered throughout the Commonwealth were to enter into an industrial agreement or convene a conference was of course absurdly inadequate. The letter can only be regarded as an ultimatum, and the suggestion of a conference as illusory"[21]. That cannot be said in this case, because not only was there the original demand referred to in the judgment but also a demand in January 1913, and a second request for a conference; and a compulsory conference was actually held on 24th February 1913 at which all the parties were present or represented.

(2)

"But the letter was also, upon the evidence, the first notification of any dissatisfaction on the part of the masters and officers employed by the applicants with the existing conditions of their service"[22]. That cannot be said in this case, because not only had the employers the notice referred to in that judgment, but a further written notice of dissatisfaction and demand in January 1913, and a further verbal notice of dissatisfaction and demand at the conference in February 1913.

(3)

"It is conceded that the demand was genuine, in the sense that it was made with the authority of the members of the Guild. The question is whether, on the expiration of fifteen days without assent to this peremptory demand, an industrial dispute extending beyond the limits of any one State came automatically into existence, of which the Commonwealth Court of Conciliation and Arbitration had cognizance"[23]. That cannot be said in this case, for the question is whether after two written notices of dissatisfaction—two written formal demands for altered conditions—and a compulsory conference at which dissatisfaction was expressed and the demands refused, coupled with the other facts proved in the case, especially persistence in the demand (to which I intend to refer), there came into existence a dispute of which the Court had cognizance.

The learned Chief Justice added[24]:—"In my opinion some real opportunity of discussion of an industrial claim between the parties concerned must be afforded before it can develop into an industrial dispute within the meaning of that provision. If peace is desired, it is at least possible that friendly discussion may prevent either its creation or its extension." Surely in this case there was some real opportunity of discussion, especially at the conference between the parties, to prevent its creation into an actual dispute or to crystallize it into a dispute. The learned President found that there was in this case at the date of that conference an actual dispute between the claimant organization and the respondents.

Was there an intention to insist upon the demand and persistency in the demand—or was it only a claim not intended to be insisted upon, as suggested in Allen Taylor's Case[25]—up to the time the first plaint was filed?

The evidence shows that there was the original demand; the refusal to concede the demand or confer; the plaint followed that refusal; the organization persisted in the demand before the Arbitration Court; the organization persisted in it before the High Court in supporting the award. After the hearing of the rules nisi for prohibition in the High Court in December 1912, meetings of members of the organization were called in all the States in question, and resolutions were passed by members of the federation in each State to make a new demand and to insist upon it to the extent of withdrawing all the men in all the respondents' ships in all the States if the demand was not complied with. The members in all the States in question followed that up by authorizing in writing a new joint demand and request for conference to be made by the organization. They authorized the organization to press for a settlement of the demand in conference or in the Court. When the demand was refused, the organization asked for and obtained from the President of the Court a compulsory conference of representatives of employers and employees. The demand was pressed at the conference and refused. The matter was then referred by the President to the Court for Arbitration. The organization appeared and undertook to the President not to call the men out of the respondents' ships to enforce the demands until the High Court dealt with a special case he proposed to refer to that Court. The organization pressed for the demand before the Arbitration Court. The organization pressed for the demand before the High Court on the special case submitted by the President in August last. The organization pressed for the demands at the Arbitration Court in September and October last, after the special case in the High Court, when an award was made.

I do not see how any greater evidence of persistency in the demand, and an intention to insist upon it could be given—except by an unlawful strike while the matter was pending in the Arbitration or High Court.

On the facts before the Court I hold there was a dispute in this case about a common demand that all the members (except those mentioned later on) wanted for themselves and for all the members of the organization, which they persisted in and intended to insist upon.

Did the dispute as a fact extend beyond the limits of one State? It appears to me that the evidence before the Court on this occasion shows that the dispute was one that extended beyond the limits of one State. I find a difficulty to discover any evidence of a purely State dispute at all. It commenced in December 1912 as a dispute extending to the three States. After 13th December 1912 there was only one federal registered organization to deal with employers about the matters in question on behalf of all the members in all the three States, and only one dispute, namely, one extending to three States.

Federal registered organizations of employees are the only bodies authorized by the Commonwealth Conciliation and Arbitration Act to file plaints in the Commonwealth Court of Conciliation and Arbitration.

All the members in the three States as members of one federal organization, and not as members of three State Unions, authorized the federal organization to make the demand on all the employers in the three States for the redress of the same grievances (not for different ones in different States) and for the same common demand (wages and conditions); and all the members of the one organization wanted the same things for themselves and for the members in each of the States.

The federal organization, authorized by its members in the three States, made the same joint demand as one demand on all the employers for all its members; asked for a settlement of the claims of its members, and notified the employers, at the same time, of the dissatisfaction of the employees with existing wages and conditions and of their intention to insist upon the demand.

The representatives of the federal organization and of the employers in the three States were summoned to attend and met in conference in February 1913 to settle an actual or probable inter-State dispute, and failed to do so. The demands were refused by all the employers in all the States, and no settlement of the dispute was effected.

All the essentials of an industrial dispute extending beyond the limits of one State appear to me to have been proved in this case at the time the dispute was referred to the Court by the learned President of the Arbitration Court, namely, on 24th February 1913, and at the date of the award.

The learned President did on pages 8-9 of the award make the statement quoted by the learned Chief Justice concluding with the words following:—"But the respondents who got the order for prohibition are clearly in this dispute. They merely exercised their legal right by applying for the prohibition, but there is no doubt that their action kindled the indignation of the Guild members, and evoked the resolutions to quit the vessels."

If the President had only found that fact, and on the evidence before this Court I found the same fact only, I agree that no dispute would have been proved.

I find, however, that on page 2 of the award the learned President said:—"Meetings of the Guild, held in Hobart, Adelaide, Port Pirie, and elsewhere, confirmed the resolutions which had been carried in Sydney; numerous letters were sent by individual masters and officers to their employers, demanding, in some cases, the award conditions, in others the new log; and the Guild went on in its own way, getting members to sign authorities for the presentation and enforcement of the new demands, in the hope that the extreme step of withdrawal of services would not be taken, so long as there remained any hope of relief from this Court." And on pages 2-3 of the said award he said:—"The conference was held on the 24th February, and was attended by leading ship-owners in the several States. I came to the conclusion at the conference, and from what passed there, that the dispute was actual, endangering the operations of the whole shipping industry on the Australian coast—except as to the inter-State ships, which are regulated by a federal agreement framed by me and accepted by the Guild and the inter-State employers in December 1910. No agreement having been reached, I referred the alleged dispute into Court (24th February 1913). The matter came before this Court on 29th March 1913, in Sydney." And on page 3 of the said award he said:—"I also obtained from the Guild an undertaking that the threatened withdrawal of services would not take place before the decision of the High Court or the 30th June, whichever should first come." And on page 4 of the said award he said:—"The parties have now had several days for investigating before me the question, is there a dispute, or is there not, a question which, I am told, I have no power to decide, but must investigate. The decision of the High Court says that I am justified in finding that there is an actual industrial dispute, and in proceeding to investigate the merits; but this decision rests on the assumption that the facts stated in the affidavits are true; and I have given the respondents full opportunity to cross-examine the Guild's witnesses, and to call evidence of their own." And on page 7 of the said award he said:—"In coming, as I do, to the conclusion that there is a dispute of real substance, I am influenced also by the nature of the grievances alleged, and by the demeanour and appearance of the witnesses under the previous plaint." And on page 8 of the said award he said:—"I am satisfied that, although it must be taken that there was no industrial dispute when I made the award on 25th April 1912, there was on the 24th February 1913 (the day of the reference into Court), and that there is still, an industrial dispute within the Constitution and the Act."

It has also been laid down by this Court that if the President does find there is a dispute, that does not settle the matter. This Court has to find on the facts before the President, and on the evidence submitted to this Court on a motion for prohibition, whether there was or was not a dispute, irrespective of what the President may or may not find or say.

On the facts in this case I hold that there was an industrial dispute extending beyond the limits of one State.

Further, the onus lies on the applicants to show that there was no jurisdiction, and they have not shown that there was not a dispute extending beyond the limits of one State. They apparently relied on three general defences as to all the respondents, and three special defences as to other respondents.

(1)

That there was no dispute at all. That I hold was disproved.

(2)

That if there was a dispute it was only a State dispute. That I hold was not shown.

(3)

That the shipowners were not in competition with any other persons outside Tasmania carrying on the business of shipping when the alleged dispute, if any, took place, and their shipping business has been (with one exception) wholly confined to the State of Tasmania. That ground I think is futile after the decision of the majority of this Court in the Builders' Labourers' Case[26], to which I have already referred.

(1)

That as to some of the respondents—namely, James Sheppard & Son, the North Huon Steamship Co., and Henry J. Condon—they ceased to do business before February 1913, and had not then, and have not now, in their employment any members of the claimant organization. I agree that the respondents referred to are not bound by the award.

(2)

That as to three of the respondents—James Rowe & Sons Ltd., Risby Brothers, and the Huon Channel & Peninsula Steamship Co. Ltd.—they owned small vessels plying only in the port of Hobart; they were not in dispute with their masters; and the claim made and the award are not applicable to them or binding on them. As to this defence the question is reserved for further consideration.

(3)

That as to some of the respondents the masters by a letter dated 20th September 1913 admitted that they were not in dispute with the respondents who employed them, and as there was no dispute the award was not binding on those respondents. As to these respondents I cannot see why the statements contained in that letter should not be accepted. The letter was not in evidence before the President. The letter has never been withdrawn, although signed last September, nor has any affidavit been tendered showing that it was unfairly obtained. I take it the 15 masters in question joined with the other members in a claim for more wages and better conditions, and they would have been pleased to receive what they claimed, but when the Court was reconstituted in September 1913 to investigate the question as to whether there was a real dispute or not, they volunteered at once to sign, and did sign, the letter in question admitting they were not in dispute. (They evidently did not intend to persist in the demand.) I do not think that unionists in these days, with a federal organization to support them, will be induced to sign a letter such as the one in question unless they wish to do so.

As to the respondents whose masters signed the letter in question of 20th September, I hold there was not any dispute with the masters who signed that letter. The respondents who are not bound because of the admissions contained in that letter are James Rowe & Sons and the Huon Channel & Peninsula Steamship Co. Ltd.

I agree that (1) as to the respondents whose masters and officers (if any) have all signed the letter of 20th September 1913, and (2) as to the three respondents who have ceased to employ members of the claimant organization, the order nisi should be made absolute. As to the one respondent left, Risby Brothers, whose vessels ply in the port of Hobart only, the question is reserved for further consideration. As to all the rest of the respondents I hold the application for prohibition should be refused.

In August last the majority of this Court in the Newcastle & Hunter River Steamship Co.'s Case [No. 1][27] held that in the case of a dispute being only threatened or impending or probable within the meaning of sec. 4 of the Act, the Arbitration Court had jurisdiction to arbitrate between the parties and to make a binding award. If I am wrong in holding that there was an actual dispute extending beyond the limits of one State, I do not think there can be any doubt on the facts proved in this case that there was a dispute threatened or impending or probable within the meaning of sec. 4 of the Arbitration Act, and in such a case this Court has decided that a binding award can be made.

On this ground also, I hold that, except as to the respondents mentioned, prohibition should not be granted.

Order nisi absolute for prohibition against enforcing the award as against the Huon Channel & Peninsula Steamship Co., James Rowe & Sons Ltd., James Sheppard & Co., North Huon Steamship Co. Ltd. and Henry J. Condon. As to the other applicants other than Risby Brothers order nisi discharged. As to the applicants Risby Brothers further consideration reserved.

[1] [1912] HCA 85; 15 C.L.R., 586.

[2] [1914] HCA 32; 18 C.L.R., 224.

[3] [1914] HCA 32; 18 C.L.R., 224.

[4] [1914] HCA 32; 18 C.L.R., 224.

[5] [1912] HCA 85; 15 C.L.R., 586.

[6] [1909] HCA 43; 8 C.L.R., 465, at p. 490.

[7] [1914] HCA 20; 18 C.L.R., 88.

[8] [1855] EngR 178; 15 C.B., 743.

[9] [1914] HCA 32; 18 C.L.R., 224.

[10] [1914] HCA 32; 18 C.L.R., 224.

[11] [1912] HCA 85; 15 C.L.R., 586.

[12] [1912] HCA 85; 15 C.L.R., 586.

[13] [1912] HCA 85; 15 C.L.R., 586.

[14] [1913] HCA 76; 16 C.L.R., 591.

[15] [1912] HCA 85; 15 C.L.R., 586.

[16] [1912] HCA 85; 15 C.L.R., 586, at pp. 601-602.

[17] [1914] HCA 32; 18 C.L.R., 224.

[18] [1914] HCA 32; 18 C.L.R., 224.

[19] [1912] HCA 85; 15 C.L.R., 586.

[20] [1912] HCA 85; 15 C.L.R., 586.

[21] [1912] HCA 85; 15 C.L.R., 586, at p. 598.

[22] [1912] HCA 85; 15 C.L.R., 586, at p. 598.

[23] [1912] HCA 85; 15 C.L.R., 586, at pp. 598-599.

[24] [1912] HCA 85; 15 C.L.R., 586, at p. 599.

[25] [1912] HCA 85; 15 C.L.R., 586.

[26] [1914] HCA 32; 18 C.L.R., 224.

[27] [1913] HCA 76; 16 C.L.R., 591.

High Court of Australia

R v Merchant Service Guild of Australasia [1914] HCA 36; (1914) 18 CLR 273 (9 June 1914)

HIGH COURT OF AUSTRALIA