Federated Clothing Trades (Cth) v Archer [1919] HCA 34; (1919) 27 CLR 207 (20 June 1919)

The Federated Clothing Trades of the Commonwealth of Australia Claimant; and Archer and Others Respondents.

I agree with my learned brother Gavan Duffy that an "industrial dispute" within the meaning of sec. 51 (XXXV.) of the Constitution must have reference to matters directly affecting employees in the performance of their duties. I have expressed my opinion to that effect in Federated Municipal and Shire Council Employees' Union of Australia v. Melbourne Corporation[1], and I answer the questions accordingly in the terms stated in his judgment.

I add that the matters which under those answers are within sec. 51 (XXXV.) of the Constitution are also in my opinion within the terms of the Commonwealth Conciliation and Arbitration Act 1904-1915.

In the Badge Case[2] we stated with considerable detail our understanding of the expression "industrial matter." If that case is rightly decided, its principle covers this. Its correctness was not challenged, but further consideration has confirmed the views we there expressed. Instances of a "badge" dispute can be found recorded in English official reports (see, e.g., House of Commons Papers 1895, vol. xcii., p. 382, Appendix i., p. 172; 1898, vol. lxxxviii., p. 605, and 1910, vol. xxi., pp. 12-13 and 15).

The series of facts and the train of reasoning which led us to our conclusions in the Municipalities' Case[3], just determined, lead us also almost inevitably to hold that the claims here are "industrial matters." By that we mean, of course, only that they are within the ambit of the constitutional power and the language of the Act, and so within the power of the arbitrator if he sees fit to grant them. We do not say, and have no right to offer any opinion, whether they are, or any of them are, reasonable or right to grant. Adhering to our considered views as stated in the Badge Case[4], and particularly for this purpose at p. 704, they come within the arbitral jurisdiction. It must not be forgotten that that jurisdiction is limited not merely by the Constitution but also by the Act. The Act marks the limits within the legislative power to which Parliament has thought fit to go. And one limit is that no industrial disputes are within the Act except such as may be made the subject of an award. We have a special reason for referring to that. It will have been observed that among the recognized causes of "trade disputes" or "industrial disputes" or "labour disputes," as they are variously termed in the Report of 1894, are causes which employers are utterly unable by any concession on their part to avert or terminate. No award against them could possibly end that dispute. And the Commonwealth power of arbitration must be exercised by award "so as to settle" the dispute. But "conciliation" may not be so limited. We have not to decide it now. It may possibly be—we observe only to guard against misapprehension—that the constitutional power of conciliation may, on fuller examination than it has yet received, be found to extend to cases where persuasive reasoning, as distinguished from compulsive order, may induce industrial combatants to come to terms and end or avert a public danger even though the cause of quarrel is not one to be granted by either disputant.

Limiting ourselves, however, to the Act as it stands, an "industrial matter," that is, one that can be made the subject of an award, must be one that the party of whom it is demanded can accede to. Granting that, the claims are within the reason of the matter, and within the precedents or their analogy.

First, to quote some instances in the tailoring industry:— House of Commons Papers 1895, vol. xcii., pp. 306-307: Clothiers' operatives (females), London N., had a dispute, the cause being the refusal of the employer to negotiate with union officials upon certain questions of prices in his shops—40 women affected; employer agreed. House of Commons Papers 1895, vol. xcii., pp. 304-307:—Item 300, Leeds tailors and pressers, against introduction of piece-work; successful. Item 306, Bradford tailors, for abolition of the outworking system; successful. Item 320, Rochdale tailors, against introduction of factory system; unsuccessful. House of Commons Papers 1898, vol. lxxxviii., pp. 602-603: Aberdeen tailors disputed with employer, the cause being objection to garments being sent out to be made; employer agreed; 17 men directly affected. Then other trades:— House of Commons Papers 1897, vol. lxxxiv., pp. 424-425: Item 849, Edinburgh cordwainers, against jobbing work being done in factories at lower rates than in employers' own shops—73 men concerned; result—agreement signed between parties and a representative of the Board of Trade acting under the Conciliation Act. House of Commons Papers 1898, vol. lxxxviii., pp. 578-581: Birmingham trades (several), to compel employers to join trade alliance; result—in some cases employer joined, in others not. House of Commons Papers 1902, vol. xcvii., pp. 332-333: To compel about 50 non-unionists to join the South Wales Miners' Federation; they joined—2,500 miners at Merthyr, 850 at Pontypridd and others. House of Commons Papers 1910, vol. xxi., 7th Report of Board of Trade of Proceedings under Conciliation Act of 1896, at pp. 10-11: Dublin carters, dock labourers, &c., to get recognition of trade union officials; the Board of Trade undertook the task. At p. 35: Similarly as to the railway servants of the United Kingdom. At pp. 12-13 and 15: Londonderry carters and the railway servants of the United Kingdom had a "badge" dispute; the Board of Trade acted in both, the President of the Board of Trade being the conciliator in the second.

The only claim now under consideration as to which any further observation need be made is the first, because it is the least obvious. But apart from the principle that it is a claim which the employer clearly has it in his power to grant, the reasonableness of it being for the arbitrator's consideration, it is clearly one which may conceivably affect the employees' wages. For instance, a customer gives an order for a garment to be made specially. Order garments are dearer to the customer, on the hypothesis that they mean higher wages. Suppose he is supplied with a garment not really specially made to measure, but given out to a sub-manufacturer and in fact paid for at lower working rates, the customer is defrauded, but also the workers are prejudiced. If the garment has the seller's name, the customer is satisfied; if it has the name of the actual manufacturer, the customer is put on his guard, and the employees are to that extent protected. It is clear that the claim is not necessarily unreasonable. It all depends on the circumstances.

It may be added, though it is scarcely necessary, that Clancy's Case[5] cannot be regarded as having any application to the Commonwealth Act.

For the reasons which I have stated in the Municipalities' Case[6], I think it impossible to give, and undesirable to attempt to give, a complete definition, applicable for all time to come, of the words "industrial disputes" contained in sec. 51 (XXXV.) of the Constitution. The Courts have always refused to define fraud. The varieties of fraud increase with the complexity of civilization—crescit in orbe dolus; and so also the varieties of industrial disputes. It was suggested here by Mr. Starke that an industrial dispute must be about some matter which it is within the capacity of the parties to grant or refuse; and it is said that this definition would exclude from the class of "industrial disputes" a dispute such as that which I dealt with, in compulsory conference, in Waterside Workers' Federation of Australia v. Commonwealth Steamship Owners' Association; Ex parte Victorian Stevedoring &c. Co.[7]. In that case the men refused to "sling" flour for export to Java until the price of bread should be reduced from 8d. to 6d. per loaf. This reduction, of course, was out of the power of the employers; but the men were induced at the conference to leave the subject of the price of bread to the Government and Parliament. If the definition do not fit such a case, so much the worse for the definition; it would be extraordinary if the Court of Conciliation and the President were to be treated as helpless in such a case. Yet the definition would fit well enough if we bear in mind that the employed classes can grant or refuse as well as employers—they can grant or refuse their work. I do not see why an award cannot be made forbidding a union and its members to refuse work on specified grounds—even in the case of a sympathetic strike. In a converse case (the case of the Amalgamated Society of Engineers and The Commonwealth[8]) I decided that the Commonwealth Government should not refuse to give employment on the ground that the Society and its members would not sign an agreement binding them to accept piece-work rates. I cannot think that these disputes were not both "industrial disputes" within the Constitution. Both were between actual or possible employers and employees, as to the taking or giving of employment, or as to the conditions of employment; and both stood in the way of the supply of the commodities or services which the country needed.

So far as the Constitution is concerned, therefore, I am of opinion that all the matters, the subject of debate in this case are "industrial disputes." I do not think that there is anything in the actual decision of Clancy's Case[9] which conflicts with this view. That was a decision under the New South Wales Act, and as to the definition of "industrial matters" therein contained; and it turned on the fact that the industrial agreement purported to regulate the hours of a butcher's shop even after all the employees had left. What the shopkeeper or his wife or daughter might do after the employees had left was not a matter affecting the employment.

But it may be that our Act covers a more limited area than the Constitution. Under sec. 4, an industrial dispute includes "any dispute as to industrial matters"; but it also "means an industrial dispute extending beyond the limits of any one State"; and as the phraseology of the Constitution is used here without qualification, I am inclined to think that the Act was intended to cover as wide a ground as the Constitution under which it became law. But, if this view be not accepted, what is the meaning of "any dispute as to industrial matters"? "Industrial matters" are defined, and very comprehensively. Claim 71 asks that the officer of the union shall have power to inspect the workroom on due notice, with right of access to the wages book or time-sheet; that the employer shall keep a time-book showing the hours worked and the wages paid; and that the union be permitted to post notices on a board—as I understand, union notices of meetings, &c. In effect, the claim is that if the employer use the services of any member he shall not only observe certain conditions of labour, but that he shall enable the union to which the employee belongs to see that any agreement or award is being obeyed; and that the union, being an organization of employees devised for their mutual protection under the encouragement of the Act (sec. 2 (VI.)) shall be enabled to carry out its functions effectively. To me, these claims seem to be claims as to matters "relating to the rights or duties of employers or employees," and to "the terms and conditions of employment"; as well as to "matters pertaining to the relations of employers and employees," and "questions of what is fair and right in relation to any industrial matter."

As for the third matter—a claim for an order forbidding work outside the shop or factory, or else for high rates on a piece-work basis, the work to be confined to members of the union—this seems to me, whether the claim is just or unjust either in whole or in part, to come easily within the definition. Even on the narrowest view of "industrial matters" it is of vital importance to the members of the union that an employer shall not have facilities for evading the award rates and conditions, or for resorting to the individual bargaining which homework often involves, or for getting women and girls who have other aids to support to accept work at low prices. The claim comes also under the words "all matters pertaining to the employment, preferential employment, ... or non-employment of any particular persons."

The matter as to which I have felt some doubt is claim 67. We have to consider first the meaning of the claim, and then its purpose. Reading the claim, as my brother Isaacs suggests, with the general words of the plaint as they appear before the specific claims, I take it to mean that every respondent shall cause to be affixed to every garment which he purports to have made, to order or otherwise, the name of the actual manufacturer. But what is the purpose? How does it affect employment? A manufacturer bound by an award gets an order which he gives out to a sub-contractor not bound by the award, and thus evades the obligations of the award as to wages, &c.; but not necessarily any obligations to members of this union. A country tailor sends a chart order to a city tailor, and pretends to the customer that he himself has made the garment. But in each case the label would ordinarily be seen by the customer only—if he see it at all; and he might give the matter no more thought. To some extent, however, the provision for a label would tend to deter respondents from pretending to manufacture garments which they have not manufactured; and would thereby tend to prevent the substitution of underpaid workers for workers protected by the award. In this aspect, the claim is on the same lines as a claim for preference, which is clearly an industrial matter. But on broad grounds also, it seems to me an industrial matter, a matter relating to conditions of employment, when the members of the union say "we shall not work for you unless your name appears on the garments which you make and the name of the sub-contractor on the garments which he makes." On the whole, I concur in the view that claim 67 also involves an industrial matter.

In my opinion, the dispute as to all the matters in par. 4 is a dispute as to industrial matters; and it is an industrial dispute within the Constitution and within the Act.

In the Municipalities' Case[10] I came to the conclusion that an "industrial dispute" within the meaning of sec. 51 (XXXV.) of the Constitution must have reference to matters directly affecting employees in the performance of their duties. Applying this test in the present case, I answer:—(1) The dispute as to the first matter set forth in par. 6 of the case stated is not a dispute within the meaning of the Constitution. (2) The dispute as to the second matter set forth in par. 6 of the case stated is not a dispute within the meaning of the Constitution except as to item 71 (c). As to that item, it is such a dispute so far as it applies to parties to the dispute but not otherwise. (3) The dispute as to the third matter set forth in par. 6 of the case stated is not such a dispute as to items 74 and 74 (b), but is such a dispute as to item 74 (a) so far as it applies to parties to the dispute and not otherwise. Those items which are within the Constitution are also, in my opinion, within the Commonwealth Conciliation and Arbitration Act 1904-1915.

For the reasons given by me in the Badge Case[11], I hold that all the matters referred to in the case submitted, so far as they are matters which are in the control of, and can be enforced by, the respondents in connection with their industry, are matters about which an industrial dispute within the meaning of the Constitution and the Act can arise. Whether an award should or should not be made in respect of them, and the conditions upon which they should be granted, if granted, are matters for the Arbitration Court to decide. The answers to the questions should be: Question 1, Yes; Question 2 (a), Yes; Question 2 (b), Yes.

[1] 26 C.L.R., 508.

[2] [1913] HCA 53; 17 C.L.R., 680.

[3] 26 C.L.R., 508.

[4] [1913] HCA 53; 17 C.L.R., 680.

[5] [1904] HCA 9; 1 C.L.R., 181.

[6] 26 C.L.R., 508.

[7] 10 C.A.R., 2.

[8] 12 C.A.R., 386.

[9] [1904] HCA 9; 1 C.L.R., 181.

[10] 26 C.L.R., 508.

[11] [1913] HCA 53; 17 C.L.R., 680.

High Court of Australia

Federated Clothing Trades (Cth) v Archer [1919] HCA 34; (1919) 27 CLR 207 (20 June 1919)

HIGH COURT OF AUSTRALIA