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Hillman v Commonwealth [1924] HCA 62; (1924) 35 CLR 260 (17 December 1924)

HIGH COURT OF AUSTRALIA

H C of A

28 Augest 1924

Starke J.

Piddington K.C. and Collins, for the appellant.

Bavin A.-G. for N.S.W. and A. L. Campbell, for the respondent.

Starke J

. delivered the following written judgment:—

This is an action brought by Henry Hillman, on behalf of himself and all other members of the Amalgamated Engineering Union (Australian Section) employed at the Cockatoo dockyard, for a declaration that their ordinary hours of duty should not, since 11th November 1922, have exceeded 44 hours per week without payment of overtime. The Cockatoo dockyard has, since that date, worked a 48 hours' week, and the real object of the action is to establish a right to overtime in respect of the additional 4 hours.

The claim arises out of an award of the Commonwealth Court of Conciliation and Arbitration made in June 1921. Clause 3 of that award provided: "The ordinary hours of duty shall not (without payment of overtime) exceed 8 hours on each of the five days in the week between 7 a.m. and 5 p.m. and 4 hours on Saturday between 7 a.m. and noon." An admission was made in the case as follows: "6. The said award at the date of the making thereof was made to bind a number of respondents including the Naval Board, the Minister for Navy and the Minister for Defence. The said award at the date of its making did not bind any Department of the Commonwealth or any Minister thereof except in so far as the said Commonwealth was bound by virtue of the said award being binding on the said Naval Board, the said Minister for Navy and the said Minister for Defence." I accept this admission, but the terms of the award have rather puzzled me. Clause 16 provides that the award is binding on the following respondents:—"F—As to items appearing in the said log" (that is, the general log of wages and conditions of employment prepared by the Union and annexed to the award) "numbered clause 1; items" (enumerated) "and with respect to each and every item in clauses 2 to 25 inclusive— ... Naval Board, Minister for Navy, Minister for Defence ..." This means, I suppose, that the award, and not the log, is binding in respect of the subjects mentioned in the log. But I take the admission as also based on sec. 29 of the Act. In September 1922 the award of June 1921 was varied as follows: "3a. On and after midnight 23rd September 1922 clause 3 and sub-clause (b) of clause 4 shall not apply to any of the respondents bound by this award except to the following respondents ... who have not applied for a variation of the award ... Naval Board, Minister for Navy, Minister for Defence." And clause 3b, except as to the respondents already mentioned, prescribed, in lieu of clause 3, that the ordinary hours of duty should not (without payment for the overtime), exceed 8 hours 45 minutes on each of the five days in the week between 7 a.m. and 5 p.m. and 4 hours 15 minutes on Saturday between 7 a.m. and noon. In May 1923 a further variation was made as follows:—"That ... the order of variation of hours made by this Court on 22nd September 1922 is hereby varied by striking out of new clause 3a of the said award the following names of further respondents who have since the 22nd day of September 1922 applied for variation of the original award, namely, Minister for Defence, Minister for Navy, Naval Board. Nothing in this variation shall in any way affect the position of any of the three last-named respondents or the Department of Defence so far as the employees at the Cockatoo or Williamstown docks are concerned."

The plaintiff contends, and I think rightly, that this proviso excepts the Cockatoo and Williamstown dockyards from the operation of the variation order of May 1923, and he next claims that work carried on at the Cockatoo dockyard must consequently be subject to the provisions of the award of June 1921. The opinion of the President of the Arbitration Court was apparently to the contrary, when in May 1923 he varied the award of June 1921. He said:—"The Union's representatives claimed that no application to vary the award should be entertained by the Court because the Department of Defence, the applicant, was committing breaches of the award by not observing the 44 hours at Cockatoo Island and Williamstown dockyards. It appears however that both these dockyards are under the Prime Minister's Department, and that a special tribunal has been appointed to deal with all the disputes in connection with the Cockatoo Island and Williamstown dockyards. Neither the Prime Minister's Department nor the Commonwealth nor the shipping tribunal are respondents bound by the award, although they agreed to adopt the recognized standard hours under the awards of this Court. Any variation the Court makes in this application cannot therefore legally alter the hours of work of an employer not bound by the award, namely, the employers of members working at the dockyards named ... It is clear on the admitted facts that the employers of men working at the docks named are not legally bound by the award the Department of Defence asks the Court to vary. No breach of the award so far as the docks in question are concerned has been committed." This opinion does not bind this Court, which must determine the matter for itself, giving due consideration, however, to, and deriving what assistance it can from, the opinion of the learned President.

The June award creates difficulties on its face. It does not purport to bind the King in right of the Commonwealth or the Commonwealth itself, who or which employed the plaintiff and those whom he represents until the establishment of the Australian Commonwealth Shipping Board. Naturally the Commonwealth relies on the form of the award as decisive in its favour. But the matter cannot, I think, be disposed of so easily. The award, according to the admission, binds the Ministers for Navy and for Defence, who were the King's responsible Ministers of State controlling the Departments of the Navy and Defence respectively, and also the Naval Board, which was a body constituted under the Naval Defence Act and Regulations, and charged, subject to the control of the Minister, with the administration of all matters relating to the naval forces. Now, the Cockatoo dockyard belonged at the time of the award to the King in right of the Commonwealth, and, though the supreme executive power is vested in the Sovereign, still in practice the King acts on the advice of his Ministers, and the executive business of the State is carried on by the various Government Departments in accordance with legislative provisions or the political policy of the day. The administration of the Cockatoo dockyard was in the hands of the Naval Board, subject to the control of the Minister for the Navy. So I take the award to mean that, so far as the Minister for the Navy or the Naval Board controlled or administered the activities carried on at Cockatoo dockyard as the executive officers of the King, they should observe the award. It is only as executive officers of the King that the Ministers or the Board are bound. They are bound, I take it, as the representatives of the King. The award fastens upon the officers who actually control the dockyard in the name of the King rather than upon the nominal controller—the King himself. But the award does not purport to, and does not in point of law, bind the King or the Commonwealth generally: it only binds them so far as an activity covered by the award is administered or controlled by the named executive body or officers—the Naval Board, the Minister for Navy or the Minister for Defence. If the activity passes from the administration and control of the named executive officers of State or the named administrative body to other officers of State or other administrative bodies, then, subject to any special provision of the Arbitration Act, the award ceases to operate or at all events does not bind those officers or bodies or the Commonwealth in their administration or control of the dockyard. This brings me to the history of the administration and control of the Cockatoo dockyard.

At the time of the award it was administered as part of the Department of the Navy by the Naval Board, subject to the control of His Majesty's Minister of State for the Navy. About June 1921 the administration of the dockyard was transferred to the Prime Minister's Department and placed by Order in Council under the direction of a Board of Control. This was an administrative act, and not, so far as I know, based upon any statutory authority. The change in administration was due to a change of policy in connection with the dockyard. It was now to be carried on as a commercial undertaking in open competition with private firms, instead of being, as formerly, used substantially for naval purposes. The tradesmen, of course, performed the same functions as before—coppersmiths did work appropriate to coppersmiths, and blacksmiths that appropriate to blacksmiths. In September 1923 the Commonwealth Shipping Act (No. 3 of 1923) was proclaimed. This Act incorporated the Australian Commonwealth Shipping Board, and vested in it Cockatoo Island and the dockyard thereon, also the management of the works and establishments on the island. The Board is largely removed from political control, but it is nevertheless an organ of the Commonwealth for carrying on the operations specified in the Act. The administration and control of the Cockatoo dockyard therefore, in June 1921, passed from the Naval Board, the Minister for Navy, and the Minister for Defence so far as he administered naval and military matters, and became vested in the Prime Minister or the Board of Control which was constituted under the Order in Council of June 1921. Neither the Prime Minister nor the Board of Control was bound by the award. Later, the Cockatoo dockyard and the management of the works and establishments on Cockatoo Island were vested in the Australian Commonwealth Shipping Board, which is also not bound by the award, and which, I apprehend, is the present employer of the plaintiff.

So far as the award is concerned, the plaintiff fails, in my opinion, to establish his case.

But some reliance is placed, I suppose, upon the Arbitration Act 1904-1921, sec. 29: "The award of the Court shall be binding on ... (ba) in the case of employers, any successor, or any assignee or transmittee of the business of a party to the dispute or of a party bound by the award, including any corporation which has acquired or taken over the business of such a party." I see no reason to doubt the identity of the business. It was carried on in the same place, by the same staff, doing substantially the same kind of work. But there is, in my opinion, no successor, assignee or transmittee of the business of a party to the dispute or of a party bound by the award. Cockatoo dockyard and the business there carried on are and always have been, in substance, the property of the King in right of the Commonwealth, or else of the Commonwealth itself, under whatever control the business has been placed or in whatever body it has been vested. And the party to the dispute who is bound by the award is and has always been the King or the Commonwealth, in respect of the activities carried on by him or it under the administration and control of the Naval Board, the Minister for Navy, or the Minister for Defence. Consequently sec. 29 of the Arbitration Act does not, in my judgment, aid the plaintiff in this action.

The Commonwealth also relied upon an agreement of February 1921 as an answer to this action. But if the award of June 1921 covered the operations carried on at Cockatoo dockyard since 11th November 1922, then I cannot see how that agreement dispenses with, or could dispense with, the due observance of the award.

I am also unable to agree with another contention put forward by the Commonwealth: that this action is not maintainable because its subject matter has been referred to a Special Tribunal constituted under the Industrial Peace Act 1920. This Special Tribunal has not made any award or determination in the matter, and so long as the award of the Arbitration Court stands, I cannot see that a reference to a Special Tribunal can affect the rights of persons entitled to the benefit of the award. It may possibly afford ground for staying an action in some circumstances, but certainly not in the circumstances of this case, for the Special Tribunal apparently refuses to proceed unless the rights of the parties under the award are first determined.

The result is that I agree with the President of the Arbitration Court in thinking that the award of June 1921 did not bind His Majesty or the Commonwealth in respect of their operations at the Cockatoo dockyard after the administration and control of those operations had been transferred to the Prime Minister's Department in June 1921, and, a fortiori, after control had been transferred to the Australian Commonwealth Shipping Board.

An application was made to me to add the Australian Commonwealth Shipping Board as a party to this action, but I refused it, for the reasons already appearing and also as a matter of discretion. This is not an action in which any indulgence should be shown to the plaintiffs. They should be given their rights according to law on the pleadings as they stand, and no more. The dockyard has been, to a large extent, carried on to keep the workmen in employment. But, not satisfied with this generous treatment on the part of the Commonwealth, the plaintiffs insist upon a claim for overtime, which, if valid, can only be ascribed, in my opinion, to a misunderstanding by the Arbitration Court in May 1923, of the effect and operation of the award of June 1921. But, as I agree with the opinion of the learned President given in May 1923, this action will be dismissed with costs.

Action dismissed with costs.

Appeal dismissed with costs.

Solicitors for the appellant, Sullivan Brothers.

Solicitor for the respondent, Gordon H. Castle, Crown Solicitor for the Commonwealth.