Federated Millers & Mill Employees' Association of Australasia v Butcher [1932] HCA 16; (1932) 47 CLR 246 (12 May 1932)

The Federated Millers and Mill Employees' Association of Australasia Applicant; and Butcher and Others Respondents.

This is a summons under sec. 21AA of the Commonwealth Conciliation and Arbitration Act 1904-1930 seeking a decision upon the validity of an order of the Commonwealth Court of Conciliation and Arbitration by which a variation was made reducing the minimum wage prescribed by an award. The order is attacked on behalf of the employees' organization upon the ground that it operates to reduce the amounts of the prescribed wages below the amounts in dispute between the parties to the industrial disputes settled by the original award. This award was expressed to be made in the matter of three industrial disputes of which the Arbitration Court had taken cognizance. The employees' organization on or about 16th April 1926 served upon the employers a log of demands for wages and conditions. It specified the rates of wages sought for various classes of work in the industry, and it demanded a working week of forty-four hours. None of these demands was conceded by the employers within the time fixed by the organization for a reply, namely, fourteen days from 16th April 1926, or at all. The organization treated the employers' failure to accede to the demands as equivalent to a refusal or as sufficient otherwise to raise a dispute, and on 27th May 1926 filed a plaint in the Court of Conciliation and Arbitration claiming the wages and conditions set out in the log. The first of the three disputes of which the Arbitration Court took cognizance is that submitted by this plaint. It is not contended that a dispute had not arisen before the filing of the plaint as a result of the employers' failure to concede the demands of the organization. If matters had stopped there, it could not be disputed, in view of the decisions of this Court, that the ambit of the industrial dispute as to wages had no downward limit. The Court of Conciliation and Arbitration might, in the settlement of such a dispute by its award or any variation of its award, prescribe minimum wages of any amount not in excess of the sums fixed by the log of demands served by the organization. But on 25th and 26th June 1926 respectively, two logs of demands were served upon the employees' organization on behalf of employers One of these logs was prepared by one association of employers, and the other by another association. Each specified minimum rates of wages and each sought a working week of forty-eight hours. Failure to concede these demands was treated as raising two more industrial disputes. They were referred into the Court of Conciliation and Arbitration under sec. 19 (d) of the Act, and they are the two other supposed disputes in respect of which the original award was made. It may be doubted whether separate disputes actually arose out of these logs. They appear to relate to the same subject matter as the original dispute, and might be considered as formal statements of what the employers desired from the Court. Indeed, the heading under which the demands are set out is "List of wages and conditions proposed and authorized as the basis of an award by the respondents." The contention of the employees' organization now is that these logs operated to restrict the ambit of the existing dispute, and, in respect of wages, to confine it to the difference between the amounts stated in the log of the employees' organization and the amount stated in the employers' log. The original award made as in settlement of the three disputes prescribed rates within these limits. But the order of variation complained of reduced the rates so prescribed by ten per cent. The award contained the usual provision for the alteration of rates of pay automatically in accordance with variations in the cost of living, except as to a fixed sum forming part of the rates and not based upon the calculation for the cost of living. It is said on behalf of the employees' organization that, when the reduction of ten per cent is applied to these provisions, the rates of wage which result are lower than those proposed by the employers' logs as adjusted to the prevailing cost of living. This consequence is denied on the part of the employers, but it may be assumed for the purposes of our decision. There are two answers to the contention that the ambit of the original dispute was restricted by reason of the subsequent service of the employers' logs.

The first answer is that when the Court of Conciliation and Arbitration takes cognizance of an industrial dispute defined in extent and subject matter no subsequent expressions by the parties of their readiness to concede parts of demands and no communication of terms and conditions to which they are willing to submit can operate to limit the jurisdiction of the Court. Sec. 24 of the Act proceeds upon the view that an industrial dispute of which the Court has cognizance being a matter of public concern, is to be settled by or under the supervision of the Court either by means of an award or an agreement certified by a Judge or a Conciliation Commissioner. The employers' logs are no more than communications of the employers' desires in respect of the regulation of the industrial relations between the parties. The subjects included in the rival proposals may not be identical, but they cover the same field. There is nothing in the nature of a withdrawal by one party from the industrial dispute or a retractation of his demands or refusals. Indeed, within eight days before the service of their log the employers had filed answers to the plaint disputing each and every claim therein. The jurisdiction of the Court to settle the dispute thus pending before it was not diminished by the subsequent disclosure of the amounts which the employers were in fact prepared to pay as wages.

The second answer to the contention on behalf of the employees' organization is that the employers' logs did not contain or imply any statement of their readiness to pay in any circumstances the specified wages. The demand for a working week of forty-eight hours was an inseparable part of their proposal. It is not proper to treat a demand for hours as equivalent to a money sum expressed in wages. Hours of work involve working conditions which may and often do affect other matters as well as wages. The proposal for specified amounts of minimum wages and for a forty-eight hour week are interdependent. Accordingly the statement of the amount of wages which they were prepared to pay cannot be treated as a concession pro tanto by the employers of demands based upon a forty-four hour week.

For these reasons the ambit of the dispute was not limited and the order of variation was validly made.

The second question in the summons should be answered as follows: The Full Court of the Commonwealth Court of Conciliation and Arbitration had jurisdiction to make the order of 30th March 1931.

This was a summons under sec. 21AA of the Commonwealth Conciliation and Arbitration Act 1904-1930. All the questions raised by the summons should be answered in the affirmative. And I so decide because, in my opinion, the logs or claims served by the employers and employees respectively, and not acceded to by the persons or bodies upon whom they were served, raised separate and independent disputes or controversies and not one dispute. The order made by the Arbitration Court reducing wages by ten per cent is then within the ambit of the dispute raised by the employees' claim (Federated Engine-Drivers' and Firemen's Association of Australasia v. A1 Amalgamated[1]). The Insurance Staffs' Case[2] is distinguishable on the facts; but I should have thought, since that case, that the extent of an industrial dispute is ascertained not by reference to curial proceedings, but rather by reference to extrinsic facts.

In order to sustain the attack made by the applicants upon the order of the Arbitration Court directing a ten per cent reduction of wages, it must first be shown that the employers' logs dated June 25th and June 26th, 1926, respectively, are to be taken as a final expression of willingness to pay the wages therein specified.

But although the logs were accompanied by letters requesting the employees' organization to agree to the terms and conditions "contained" in the logs, the logs described their own contents as a "list of wages and conditions proposed and authorized as the basis of an award." Moreover, the last provision, dealing with the date of the operation of the proposed award, treated the award to be made in relation to the logs as being "subject to the adjustments and necessary variations." This is certainly a reference to the adjustment clause (No. 5 of the logs), but the use of the word "variations" also points to Court action which may alter the wages suggested for reasons other than changes in the cost of living. If so, the specified rates cannot be regarded as fully definitive of the employers' attitude in relation to the wages payable from time to time in the industry.

For this reason we are of opinion that the case is covered in principle by the recent decision of this Court in the Graziers' Case[3], and that the Arbitration Court had jurisdiction to make the order challenged.

We express no opinion upon the question whether the jurisdiction of the Arbitration Court can be affected by action of the parties to a dispute after the Court has duly acquired cognizance thereof and the dispute answers the description contained in the Constitution and the statute. That the parties to a dispute can in fact by appropriate action restrict its area or ambit, is clear enough. But whether the Court is, as a consequence of such actual restriction of the ambit of a dispute, prevented from making an order which it could lawfully have made at an earlier moment of time, is a different question. The answer to it is not contained in the decisions, and it is not necessary to decide the point in this case.

Question 2 answered in the affirmative. In view of answer to question 2 it is not necessary to answer questions 1 and 3. No order as to costs.

Solicitors for the respondents, Moule Hamilton & Derham, Melbourne, by Dawson, Waldron, Edwards & Nicholls.

[1] [1924] HCA 64; (1924) 35 C.L.R. 349.

[2] [1931] HCA 35; (1931) 45 C.L.R. 409.

[3] [1932] HCA 3; (1932) 47 C.L.R. 22.

High Court of Australia

Federated Millers & Mill Employees' Association of Australasia v Butcher [1932] HCA 16; (1932) 47 CLR 246 (12 May 1932)

HIGH COURT OF AUSTRALIA