Long v Chubbs Australian Co Ltd [1935] HCA 11; (1935) 53 CLR 143 (22 March 1935)

Long Informant, Appellant; and Chubbs Australian Company Limited Defendant, Respondent.

This appeal is brought under sec. 39 (2) (b) of the Judiciary Act 1903-1933 directly to this Court from a decision of a Court of Petty Sessions exercising Federal jurisdiction.

By the decision appealed from an information under sec. 44 (1) of the Commonwealth Conciliation and Arbitration Act 1904-1930 was dismissed. The information, which was laid by an officer of an employee's organization bound by an award of the Commonwealth Court of Conciliation and Arbitration, alleged that the respondent, an employer, committed a breach of the award. The breach charged was that the respondent engaged a minor in an occupation, specified in the clause in the award relating to apprenticeship, otherwise than under a contract of apprenticeship framed in conformity with the award. The clause in question provides that minors shall not be engaged in given occupations except under contracts of apprenticeship framed in conformity with the award. It fixes the proportion of apprentices to tradesmen which an employer may take. It provides for the period of apprenticeship, for the rates of wages to be paid to apprentices in successive years of service, for hours and overtime and for some less important conditions. Some of the contents of the contract of apprenticeship are prescribed, and certain things are forbidden. For instance, the employer may not put the apprentice to piece-work; he may not exact a premium. There are provisions, too, relating to the teaching of apprentices.

The respondent admittedly did engage a minor in a manner contrary to the clause. But its defence to the information was that the clause is invalid because it was beyond the jurisdiction of the Commonwealth Court of Conciliation and Arbitration to include it in the award. And upon this ground the information was dismissed. The contention is not based upon the character of the industrial dispute; it is not suggested that the clause travelled outside the limits of the claims from which that dispute arose. On the contrary, it inferentially appears that in fact the dispute included the subject matter or matters with which the apprenticeship clause deals. The contention is that because the clause relates to apprentices who are not members of the employee's organization, therefore, dispute or no dispute, it is beyond the jurisdiction of the Court of Conciliation and Arbitration to award it.

Now the Commonwealth Conciliation and Arbitration Act 1904-1930 appears specifically to contemplate the very thing which is complained of as outside the scope of the Court's powers. The definition of "industrial matters" includes "the employment ... or non-employment ... of persons of any particular age ... or being or not being members of any organization association or body." "Industrial dispute" is defined to mean an industrial dispute extending beyond the limits of any one State, and to include any dispute as to industrial matters. Sec. 25C requires the Court to take into consideration any scheme of apprenticeship provided by or under State law when the Court determines any industrial dispute in which the rates of pay or conditions of employment applying to apprentices in any industry are in question. The employment of apprentices in industry, their relation to tradesmen, and the use of apprentices by employers to the prejudice, real or supposed, of other labour has, as is well known, been a common source of industrial conflict. The reason for this lies in the fact that tradesmen have a material interest which is very real in the conditions of juvenile labour and of juvenile training in the industry in which they work. The effect which conditions of that description may produce upon the working conditions of adults in the industry is direct and substantial. We think that this circumstance removes the objection upon which the respondent relies. Apprentices are, of course, recruited from boys, and more often than not before they have become members of an industrial organization. The object of the clause is not to confer advantages on apprentices, although, no doubt, in framing it their interests have not been forgotten. Its object is to benefit the members of the organization by preventing what were considered abuses from which consequential disadvantages to them would arise. The only rights given by the clause are given to the organization and to its members. The only duties imposed are imposed upon employers from whom the organization demanded that they should deal with all apprentices in a manner similar or analogous to that prescribed by the award. The rights and duties, therefore, created by this clause are, we think, confined to the disputants. It is true that when, in compliance with the award, an employer and an apprentice enter into a contract of apprenticeship, mutual rights and duties will arise between them. But these rights and duties will rest entirely in contract. They will not spring from the award. The case of apprenticeship appears to us to resemble in principle that of preference to unionists of which in Amalgamated Engineering Union v. Alderdice Pty. Ltd.; In re Metropolitan Gas Co.[1], Gavan Duffy J., as he then was, and Starke J. said that the power of the Court to grant it "is a power to prescribe the rights and duties of the actual disputants as between themselves, though it may also be detrimental to the interests of others." The only difference is that the regulation of apprenticeship is, or may be thought to be, beneficial to the others, the apprentices. The ground of attack upon it in this case alleges that it confers benefits upon non-disputants to which they would obtain a legal right under the award.

We think the passage we have quoted impliedly concedes that, where the material interests of one set of disputants are directly affected by the relations which the other set habitually enters into with strangers to the dispute, an award may regulate their entry into these relations, at any rate if it assumes to do no more than confer rights and impose duties upon the disputants and, in the case of organizations, their present and future members.

In view of the course of the argument, it appears desirable to repeat the observations upon the decision made by Rich and Dixon JJ. in Amalgamated Clothing and Allied Trades Union v. D. E. Arnall & Sons; In re American Dry Cleaning Co.[2]:—"In that case, however, the Court was composed of six Justices and three of them, Isaacs J., Higgins J. and Powers J., although giving the same answer to the question asked by the special case did so for other reasons, and two of the Justices, Isaacs J. and Higgins J., expressly dissented from the reasons of Knox C.J., Gavan Duffy J. and Starke J. In these circumstances these reasons cannot be said to be the ratio decidendi of the order made by the Court."

Arnall's Case[3] itself is somewhat nearer to the present because it concerned improvers. But we do not think that we are called upon to consider that decision, because we think that in any view apprenticeship is a matter with which the Court of Conciliation and Arbitration may deal. It is desirable, however, to point out that the decision of that case is by three Justices in a Court of six. For Isaacs J., as he then was, dissented and Rich and Dixon JJ. considered it futile to go into the question in view of the opinion already expressed in Alderdice's Case[4] by Knox C.J., Gavan Duffy J. and Starke J. which, as they adhered to it, would in any event prevail in Arnall's Case[5]. Upon the question whether in the Full Court such a decision has more than a persuasive authority we refer to the judgments of Rich and Dixon JJ. in Tasmania v. Victoria[6].

We have not thought it necessary to discuss every term of the clause impugned, because the respondent disobeyed the clause in its entirety, and no particular provision which the clause contains has been made the subject of a separate or independent attack.

We think the appeal should be allowed with costs, and the information remitted to the magistrate to be dealt with according to law.

Appeal allowed with costs. Order appealed from set aside. Information remitted to the magistrate.

[1] (1928) 41 C.L.R., at p. 435.

[2] (1929) 43 C.L.R., at pp. 51, 52.

[3] [1929] HCA 35; (1929) 43 C.L.R. 29.

[4] [1928] HCA 38; (1928) 41 C.L.R. 402.

[5] [1929] HCA 35; (1929) 43 C.L.R. 29.

[6] [1935] HCA 4; (1935) 52 C.L.R. 157.

High Court of Australia

Long v Chubbs Australian Co Ltd [1935] HCA 11; (1935) 53 CLR 143 (22 March 1935)

HIGH COURT OF AUSTRALIA