Western Australian Timber Workers' Industrial Union of Workers (South West Land Division) v Western Australian Sawmillers' Association [1929] HCA 26; (1929) 43 CLR 185 (16 October 1929)

The Western Australian Timber Workers' Industrial Union of Workers (South West Land Division) Applicant; against The Western Australian Sawmillers' Association and Others Respondents.

Fullagar, for the applicant, the Western Australian Timber Workers' Industrial Union of Workers (South West Land Division).

Ham K.C. (with him Fullagar), for the Court of Arbitration of Western Australia.

The first question stated in the case should be answered in the affirmative. Ince Bros. and Cambridge Manufacturing Co. Pty. Ltd. v. Federated Clothing &c. Union[1] and Amalgamated Engineering Union v. Alderdice Pty. Ltd.[2] are decisive authorities upon the question—except, perhaps, as to the order of 9th May 1929 restraining the Court of Arbitration of Western Australia from dealing with any dispute coming before it so far as such dispute, or any part thereof, or any matter involved therein, is provided for in the awards of the Commonwealth Court of Conciliation and Arbitration dated 18th December 1928 and 23rd January 1929. This order purports to have been made under the powers conferred by sec. 20 of the Commonwealth Conciliation and Arbitration Act in protection and maintenance of awards made by the Commonwealth Court of Conciliation and Arbitration. The order is, however, so connected with the disputes in which those awards were made that it falls within the case founding the jurisdiction of this Court under sec. 21AA.

The second question stated in the case should be answered in the negative. The order of 9th May 1929 therein referred to purports to join the Western Australian Timber Workers' Industrial Union of Workers (South West Land Division) as a respondent party to the proceedings the subject of the award of 23rd January 1929, and as a party to the award, and to bind it by the award. This Western Australian Union is registered as an industrial union under the Industrial Arbitration Act of Western Australia, and is not registered as an organization under the Commonwealth Conciliation and Arbitration Act. The Union, upon registration, became, for the purposes of the Industrial Arbitration Act of Western Australia, a body corporate, having a perpetual succession and a common seal, and the members thereof for the time being are subject to the jurisdiction of the Court of Arbitration constituted under the Western Australian Act, and to all the provisions of that Act. But, in its corporate capacity, this Union was never a party to the disputes before the Commonwealth Court of Conciliation and Arbitration, and took no part in those disputes. True, most of its members—but not all—had been members of a Federal organization, and appear as members of that organization—and perhaps individually—to have been parties to and taken part in the disputes before the Commonwealth Court of Conciliation and Arbitration. But neither the Commonwealth Act nor the Western Australian Act gives this Industrial Union, registered under the Western Australian Act, any capacity, power or authority to represent and bind its members in proceedings under the Commonwealth Conciliation and Arbitration Act.

The third question should also be answered in the negative. The Commonwealth Conciliation and Arbitration Act itself, in sec. 29, provides upon what bodies and persons the awards of the Commonwealth Conciliation and Arbitration Court shall be binding. The award of 23rd January 1929 goes far beyond the limits so provided: it reserves power to join as parties to the proceedings and the award, the Western Australian Timber Workers' Union of Workers (South West Land Division), or any other organization or association containing persons who at any time since 6th April 1925 were members of the organizations parties to the proceedings therein or parties to any of the disputes therein. (See Award, "Parties," cl. 1, and "Reservations," cl. 39.) Ultimately, on 9th May 1929, as we have seen, the Commonwealth Court of Conciliation and Arbitration did join the Western Australian Timber Workers' Union of Workers (South West Land Division) as a party to the proceedings, and bound it by the award. Again, the award (cl. 1) purports to bind all persons members of organizations parties to the proceedings who were such on 6th April 1925, or became such thereafter, whether they or any one of them have or has ceased to be such or not. The provision of sec. 61 of the Commonwealth Conciliation and Arbitration Act that during the pendency of any dispute or matter before the Court no resignation of or discharge from the membership of any organization shall have effect, did not, even before its repeal by the Act 1928 No. 18, sec. 50, warrant the terms of the award. The terms of the injunction are wide enough to prohibit the Court of Arbitration of Western Australia from dealing with matters in relation to persons and bodies not lawfully bound by the award, and the Commonwealth Court of Conciliation and Arbitration had no jurisdiction or authority to make such an order.

The first question, in my opinion, on the now adopted construction of sec. 21AA, should be answered in the affirmative. On that construction, all the conditions predicated by that section are satisfied. There are (1) "an alleged industrial dispute" submitted to the Court; (2) a proper applicant, namely, an association which is de facto a respondent; (3) a question of law arising in the submission, (4) in relation to an order of the Court. I find it hard to assign any reason for the opposite view which does not do violence to the main words of the section. Perhaps the easiest way to approach the difficulty is to note the word "arising." Given the "alleged industrial dispute" connoting the parties to the dispute; given the submission of the dispute to the Court, then if any award or order whatever of the Court is the cause of a question of law "arising," that is, affecting the dispute submitted or its settlement, then that award or order of the Court, whatever it may be, answers the description in the section. For instance, in Amalgamated Engineering Union v. Alderdice Pty. Ltd.[3] the awards made in the Federated Gas Employees' Union dispute[4] were at the root of the question of law arising on the Amalgamated Engineering Union's dispute. The words should have their literal meaning (see Knox C.J. in Ince's Case[5]), and the section is a summary and inexpensive substitute for prohibition. (See per Starke J. in the same case at p. 480.) Clearly on prohibition the validity of orders B and C could be tested at the instance of the present applicant. Awards and orders that touch only entirely unconnected interests, or have totally disparate operation, do not answer the description in the section. That, however, is not by reason of their inherent classification, but for the very obvious reason that there cannot in that case be said to be any question of law "arising" in relation to the award or order of the Court. Plainly, both the orders B and C give rise to very serious questions of law with reference to the Timber Workers' "alleged industrial dispute": the first, as to the right to join the State Union as a party, and the second, the State Union being joined, as to whether by reason of the Timber Workers' "alleged industrial dispute," the restraining order is validly made.

The second question concerns both the "jurisdiction" and the "authority" of the Arbitration Court to make order B. "Authority" is probably something beyond "jurisdiction." I do not, however, find it necessary to consider more than jurisdiction. The Arbitration Court has undoubtedly power under sec. 38, sub-sec. (p), to direct parties to be joined. But, apart from any other objection that may exist in the present case, there is one fundamental reason why the Court had no jurisdiction to make order B. It is that such an order cannot be made so as to enlarge the limits of the industrial dispute regarding which it is made, by introducing persons as parties who are not and never were personally or by representation parties to the dispute. The Act, following the Constitution, conditions all arbitral action on the "industrial dispute," which is ex vi termini limited both by the disputants and the subject matter. The Court by order B did what, if successful, would enlarge the area of the dispute by adding a disputant. This is not only in violation of the jurisdiction granted by the statute, but also beyond the limits of the relevant constitutional provision.

The third question is somewhat more complex. At first I was disposed to think sec. 20 of the Act, under which the restraining order was made, on its proper construction conferred true judicial power within the meaning of the Constitution. If that were so, some difficulties would arise which do not present themselves on the proper construction of the section as, after further consideration, I now regard it. One difficulty would be whether the function so conferred was constitutionally possible in view of the definition of a "matter" in In re Judiciary and Navigation Acts[6]. But, whatever those difficulties would be, the section, properly read, is clear of them. It creates no rights, and, apart from its legislative operation on the factum of a restraining order, it creates no duties. It enables the arbitral tribunal "if it appears"—that is, if it becomes apparent—to that tribunal that any State industrial tribunal is in fact dealing or about to deal (1) with an industrial dispute, that is, a Federal industrial dispute, or (2) with part of such a dispute, or (3) with a matter which is provided for in an award of the Court, or is the subject of proceedings before the Court, to make an order restraining the State Authority from dealing with "that dispute" or "any part thereof" or with "that matter." The law then takes up the factum and clothes it with legislative results. It says: "Thereupon the Authority shall, in accordance with that order, cease to proceed in the dispute or part thereof or in that matter." The legal duty of refraining is not referable to the restraining order, but to the legislative command. The sanction for disobedience is legislative and impersonal. It is not that any penalty ensues, but that action in contravention of an order shall to the extent of contravention be void. The section is thus found on analysis to be wholly unlike true judicial authority, and to be pure executive authority to which Parliament attaches its direct legislative consequences. It would be clear violation of the Constitution if the Federal Parliament declared that a State Authority duly constituted to deal with purely State disputes, and in fact confining itself to those, could be silenced, or its acts directly annulled by the Federal Parliament, merely because the Commonwealth Arbitration Court, in its effort to avert interference with its own arbitral jurisdiction, thought erroneously either that the State dispute was a Federal dispute, or that some matter would in the future be dealt with, and would turn out to be identical with a matter provided for in an award, or the subject of unfinished proceedings before the Court. Ut magis valeat quam pereat it should be construed unless sec. 20 said, intractably, that it should not be so construed. If it so "appears" to the Court, then in one sense the Court is authorized to act; just as if it "appears" to the Court that an industrial dispute exists it is authorized to make an award. But in each case the inescapable condition lies behind its action that the necessary facts do exist constitutionally justifying that action. They are examinable, and if they do not exist the arbitral action is unlawful. On this basis it remains to be considered whether order C was an order within the jurisdiction and authority of the Arbitration Court. Again it is not necessary to look beyond the word "jurisdiction." I am of opinion that for two reasons the order C was outside the Court's jurisdiction. The first is apparent from a face comparison of the section and the order. The terms of the section have been already stated. The important words for the present purpose are: "Order restraining the State Industrial Authority from dealing with that dispute or any part thereof, or with that matter." That is to say, the order must identify the thing which it appears to the Court the State Authority is dealing with, or is about to deal with, and with which it is to be told not to deal. It is not to be an order restraining the State Authority from dealing with Federal disputes generally, or with the matter of a Federal award generally, leaving the State Authority to conjecture what it is that is forbidden and will be valueless. That would not be fair either to the State Authority or to the numerous parties before it, and, if a more reasonable construction is equally open, the latter should be adopted. The permissible action might mistakenly be refused, and forbidden action entered on because the State Authority wrongly guessed at the Court's intention. The State Authority is entitled, and those before it are entitled, under sec. 20, to be told with substantial precision just what "matter" before that Authority the Commonwealth Court declares shall not be done. In that case it might excise that "matter" and proceed with the rest. But as the only "matter" which the Commonwealth Court is authorized to forbid is one "which is provided for in an award of the Court" or "is the subject of proceedings before the Court," the State Authority or a party interested before it may on examination find that the "matter" specifically prohibited does not answer either condition, and may proceed accordingly to act or to test the question. Now, looking at order C, it radically departs from the structure of sec. 20. There is no prohibition as to "an industrial dispute" simpliciter, nor to any designated part of it, nor of any recognizable or identifiable "matter." The words "so far as such dispute or any part thereof or any matter involved therein is provided for in" certain awards, are extremely vague and unenlightening. There is no statement in the order that it appears to the Court that the State Authority "is dealing or about to deal with" any specific "matter." The general recital that "this Court having informed its mind on the subject in such manner as it thought just" is not indicative of the result of such information. The indefinite and all-comprehensive terms of the restraining order are, in my opinion, quite foreign to the order contemplated by sec. 20. To put it shortly, it throws on the State Authority the duty of forming an opinion as to the scope and effect of the Federal awards, and the recognition of the supposedly identical "matter" in the State tribunal which the section imposes on the Commonwealth tribunal before it issues its mandate. That is one reason why, in my opinion, order C was made without jurisdiction. The second reason is that, even if a specific "matter" were stated, and if on examination it were identical in point of subject matter with a provision in the Federal awards made respectively on 18th December 1928 and 23rd January 1929, the "matter" is clearly not one which is provided for in those awards, because not between the same parties.

The "matter" assumedly prohibited would be as between the State Union and certain employers. The award is between the State organization and its members, and (assume) the same employers. The State Union, a distinct entity, is not and never was a party. The individual members of the State Union were not, on the facts in the case stated, ever bound by reason of any personal appearance or representation in the Court. It is at least consistent with the case that none of those individual members ever were personally in dispute in the Federal industrial disputes, but were in dispute by reason of their representation through the organization. But there is not a syllable in the case which attributes to them any personal appearance or representation in Court. It is consistent with the case stated that none of them was a member until after 4th August 1926, when the last but one of the disputes was referred to the Court. The hearing of the disputes resulting in the two awards specified in the order, began necessarily on the facts stated at earliest on 26th October 1928. At that date not a single member of the State Union was a member of the Federal organization, and therefore could not possibly be included among its "members" who at the hearing of the disputes are stated to have been represented before the Court, and consequently the individual members of the State Union were not personally bound by the Federal awards when made, either under sub-sec. (a) or sub-sec. (d) of sec. 29. The third question should, therefore, be answered in the negative.

Sub-sec. 1 of sec. 21AA of the Commonwealth Conciliation and Arbitration Act 1904-1928 provides that when an alleged industrial dispute is submitted to the Court, (a) in the case of a dispute submitted to the Court by plaint, the complainant or respondent organization or association, and (b) in any other case, any party to the proceeding or the Registrar, may apply to the High Court for a decision upon questions which the sub-section proceeds to describe. Sec. 19 prescribes the method by which the Court of Conciliation and Arbitration shall obtain cognizance of industrial disputes for the purpose of prevention and settlement; and, in my opinion, the words in sec. 21AA "when an alleged industrial dispute is submitted to the Court" mean when an alleged dispute has come within the cognizance of the Court pursuant to sec. 19.

Sec. 21AA thus begins by making cognizance of a dispute a condition precedent to the procedural right it gives and the jurisdiction it creates. It then specifies the persons who may invoke the jurisdiction, and next describes the questions which shall be determined in the exercise of that jurisdiction. The first of these is whether the alleged dispute exists or is threatened, impending, or probable and is inter-State. This clearly means the dispute of which the Court of Conciliation and Arbitration has cognizance pursuant to sec. 19. The next is any question of law arising in relation to the dispute, which again clearly means the dispute of which the Court has cognizance. Next is—any question of law relating "to the proceeding." The proceeding is, in my opinion, that which is begun by the Court taking cognizance of the dispute. Then is specified—any question relating "to any award or order of the Court." These words considered alone are perfectly general. But they can have no application save when pursuant to sec. 19 the Court takes cognizance of an alleged dispute for the purposes of prevention and settlement and when a party to the proceeding which thus begins, or the Registrar, invokes the High Court.

These are necessary conditions, and it seems obvious that the order or award meant must have some connection with the fact that the Court has taken cognizance and a proceeding has thus begun. When to this consideration is added the fact that the words "or to any order or award" are associated with and follow a description of other questions all of which relate to the dispute of which the Court has cognizance, it appears proper to conclude that the order or award intended must be one made as a consequence of the Court having obtained cognizance of the dispute and a proceeding having thus commenced. This meaning would, in its application, include more than perhaps might at first sight be thought. For the Act treats the cognizance of a dispute as the initial step in a proceeding which involves the general superintendence, direction and settlement of the dispute, and the supervision, enforcement and control of that settlement. For instance, all the powers given to the Court by sec. 38 are exercisable "as regards every industrial dispute of which it has cognizance."

The question must now be answered whether sub-sec. 1 of sec. 21AA, so interpreted, applies to an order made by the Court of Conciliation and Arbitration as under sec. 20. Sec. 20 confers power upon the Court to restrain a State Industrial Authority from dealing with a dispute or a matter provided for in an award of the Court. Is such an order made in consequence of an alleged industrial dispute coming within the Court's cognizance? Or does sec. 20 enable the Court to restrain the State Authority from dealing with a dispute whether it has come within its cognizance or not? Sec. 20 does not mention cognizance, and if its terms alone were attended to, it might be thought to enable the Federal Court to restrain the State Authority before the Federal Court obtained cognizance. But at the same time it must be noticed that upon its terms, as interpreted by the definitions in sec. 4, there must be, or appear to be, a definite industrial dispute extending beyond the limits of any one State, and the State Authority must appear to be about to deal with that dispute or a part of it, or there must be, or appear to be, an award or proceeding of the Federal Court (which could only be after cognizance had been taken) and the State Authority must appear to be about to deal with a matter for which the award provides or which is the subject of such proceeding. Sec. 18 gives the Court power "to prevent and settle, pursuant to this Act, all industrial disputes." Sec. 19 begins: "The Court shall have cognizance ... of the following industrial disputes." Secs. 23 and 24 impose on it the task of settling disputes of which it has cognizance, and enable it to make an award in those disputes only. Sec. 38, which equips the Court with its procedural and general powers, relates only to disputes of which it has cognizance. These provisions show that "cognizance" was considered to be a necessary condition of the exercise of the Court's power of dealing with a dispute. Cognizance is distinguished from jurisdiction. By it the dispute is brought within the contemplation or notice of the Court and becomes a matter requiring the exercise of its powers. In such a scheme, it would be incongruous to find that an ancillary power could be exercised whether a dispute had come, or ever was to come, within the Court's contemplation or notice so as to become a matter for settlement. It would be strange to find this brought about in the very section which follows the provision which sets out the disputes of which the Court takes cognizance. The validity of sec. 20 has been supported upon the ground that it is ancillary or conducive to the unhampered exercise of the Court's jurisdiction to settle disputes (R. v. Commonwealth Court of Conciliation and Arbitration; Ex parte Engineers &c. (State) Conciliation Committee[7]). Yet, if it includes disputes of which the Court neither has, nor is to take, cognizance, the power to restrain would extend to disputes over which the jurisdiction to settle them neither is, nor is to be, exercised. Further, if it includes disputes not within the Court's cognizance, then the Court, in acting under sec. 20, cannot avail itself of the ordinary procedural powers of a Court conferred by sec. 38 "as regards every industrial dispute." Then sec. 20 is inserted in a division of the Act headed "Cognizance of disputes and ordinary procedure." These considerations combine to show that the general words "industrial dispute" ought not to be understood to include disputes outside the Court's cognizance. It follows that sec. 20 authorizes orders restraining a State Authority when, and only when, the Court has taken cognizance of a dispute in relation to which the order is required. Upon this construction sec. 20 confers a power the exercise of which is consequential upon the Court taking cognizance of a dispute, and an order which the Court purports to make under this section falls within sec. 21AA (1).

The first question in this case stated asks whether three matters, of which an order made as under sec. 20 is one, are within sec. 21AA. The interpretation of sec. 21AA which prevailed in Ince Bros. and Cambridge Manufacturing Co. Pty. Ltd. v. Federated Clothing and Allied Trades Union[8], and was applied in Amalgamated Engineering Union v. Alderdice Pty. Ltd.[9], makes it clear that the two remaining matters are within that section.

The second question in the summons asks whether the Court of Conciliation and Arbitration had jurisdiction to make an order reopening its award and joining the Western Australian Timber Workers' Industrial Union of Workers (South West Land Division) as a respondent and ordering that this body be bound by the award, and that those persons, who were members on a specified day, be bound thereby. I think that it had not jurisdiction to make this order because sec. 29 exhaustively states the descriptions of persons bound by the award and the body referred to is a corporation aggregate which does not, and whose members in that capacity do not, come within any of those descriptions. The facts show affirmatively that many of its members are not bound and they do not show that any of its members are necessarily bound in any capacity. I think the Court of Conciliation and Arbitration had no jurisdiction to make this order, and the second question in the special case should be answered No.

The third question is, whether an order made by the Court of Conciliation and Arbitration as under sec. 20 was within its jurisdiction? The operative part of the order is as follows: "This Court doth order that the said Court of Arbitration of Western Australia and the members thereof be and the said Court and the members thereof respectively are hereby restrained from dealing with any industrial dispute coming before it or them on a submission by the above-named Union or otherwise so far as such dispute or any part thereof or any matter involved therein is provided for in awards of the Commonwealth Court of Conciliation and Arbitration that is to say the awards of the last mentioned Court dated 18th day of December 1928 and 23rd day of January 1929 respectively and made in the industrial disputes"—then four disputes are mentioned. This order cannot be justified under so much of sec. 20 as enables the Court, if it appears to it that a State Authority is dealing, or about to deal, with an industrial dispute or with part of an industrial dispute, to restrain it from dealing with that dispute or any part thereof. For it purports to restrain it from dealing with any dispute, and not merely a particular one, and, moreover, the disputes forbidden to it are not necessarily inter-State. The order must be justified, if at all, under so much of sec. 20 as enables the Court, if it appears to it that a State Authority is about to deal with a matter which is provided for in an award of the Court to restrain it from dealing with that matter. The order does not recite what were the matters with which it appeared to the Court the State Authority was about to deal, but it forbids the State Authority to deal with any matter provided for in the awards. This means that to satisfy the terms of the section it must have appeared to the Federal Court that the State Court was about to deal with all the matters provided for in these awards. Having regard, however, to the facts stated in the special case, it is not impossible that this did in fact appear to be the case. What does the order mean by "the matters provided for in the awards"? I think it must be understood to mean those matters in respect of which the document or documents constituting the award purport to regulate the rights and duties of the persons whom those documents are expressed to govern. Cl. 2 of the award is expressed to govern persons who on a given date were, or afterwards became, members of the organization whether they cease to be members or not, irrespective of them being personally in dispute, and irrespective of the time when their membership began or may begin or ends. This is not warranted by sec. 29 or any other provision of the Act, and is void. In addition the documents constituting the award and intended to be referred to included the order, the subject of the second question in this special case, and this order was made without jurisdiction.

It follows, in my opinion, that the order made as under sec. 20 restrains the State Court from dealing with matters provided for in the award in respect of persons to which cl. 2 and the supplementary order ineffectually attempt to extend its operation and therefore with matters not lawfully provided for in the award. I do not think sec. 20 enables the Court to restrain a State Authority from dealing with matters which are not lawfully provided for in the award.

No reliance was placed upon sec. 31 and no argument was made as to its effect upon this matter. In these circumstances it would be undesirable to investigate the question whether that section, consistently with decided cases and with the Constitution, can operate to protect this order if made without jurisdiction.

Solicitors for the applicant and the Court of Arbitration of Western Australia, Lawson & Jardine, Melbourne, by E. S. Dunhill.

Solicitors for the respondent, Gillott, Moir & Ahern, Melbourne, by P. L. Williamson & Co.

[1] [1924] HCA 33; (1924) 34 C.L.R. 457.

[2] [1928] HCA 38; (1928) 41 C.L.R. 402.

[3] [1928] HCA 38; (1928) 41 C.L.R. 402.

[4] [1919] HCA 24; (1919) 27 C.L.R. 72.

[5] (1924) 34 C.L.R., at p. 462.

[6] [1921] HCA 20; (1921) 29 C.L.R. 257, at p. 266.

[7] [1926] HCA 51; (1926) 38 C.L.R. 563.

[8] [1924] HCA 33; (1924) 34 C.L.R. 457.

[9] [1928] HCA 38; (1928) 41 C.L.R. 402.

High Court of Australia

Western Australian Timber Workers' Industrial Union of Workers (South West Land Division) v Western Australian Sawmillers' Association [1929] HCA 26; (1929) 43 CLR 185 (16 October 1929)

HIGH COURT OF AUSTRALIA