Australian Timber Workers' Union v Sydney & Suburban Timber Merchants' Association [1935] HCA 55; (1935) 53 CLR 665 (18 July 1935)

Australian Timber Workers' Union and Another Applicants; and The Sydney and Suburban Timber Merchants' Association and Others Respondents.

The application is made for the purpose of obtaining a declaration that an order made under sec. 20 of the Commonwealth Conciliation and Arbitration Act 1904-1934 by his Honor Judge Drake-Brockman is invalid.

The meaning and effect of this section in its previous and in its present form were examined in this Court in R. v. Commonwealth Court of Conciliation and Arbitration; Ex parte Engineers, &c. (State) Conciliation Committee[1] and in Western Australian Timber Workers' Industrial Union of Workers (South West Land Division) v. Western Australian Sawmillers' Association[2]. The section does not give judicial power to the Commonwealth Court of Conciliation and Arbitration, or the conciliation commissioner. The power it gives is not to restrain a State tribunal which exceeds the lawful jurisdiction or authority it possesses by disregarding the restraints which arise under Federal law. It assumes that the exercise or intended exercise of authority by the State tribunal is lawful but, because of the effect produced upon an inter-State dispute, the section empowers the Commonwealth Court or commissioner to forbid the State tribunal to deal with the dispute. Upon such an order being made in pursuance of the power so given, sec. 20 itself makes it unlawful for the State tribunal to proceed in the dispute. Until the order is made, the State tribunal retains authority over the matter and when the order is made, its inability to proceed arises from the direct operation of the section, which takes effect on the making of an order in accordance with its provisions. But unless the order is made so as to satisfy the conditions which bring the prohibition of the section into operation, the authority of the State tribunal remains unaffected, and in that sense the order is invalid.

The first condition prescribed by sec. 20 is that it should appear to the Court of Conciliation and Arbitration or the conciliation commissioner, as the case may be, that a State industrial authority is dealing or about to deal with an industrial dispute, with part of an industrial dispute, with a matter provided for in an award of the Court or the commissioner, or with a matter which is the subject of proceedings before the Court or the commissioner. Thus, before the Court of Conciliation and Arbitration is authorized to make an order restraining a State tribunal, one or other of four things must be made to appear to the Court. Each of these four things relates to an industrial dispute, which means, under the definition in sec. 4, an industrial dispute extending beyond the limits of any one State. That dispute may be awaiting the award of the Commonwealth Court of Conciliation and Arbitration, or it may have been settled by an award of that Court. It is the latter case which is referred to by so much of sec. 20 as relates to a matter provided for in an award. But the dispute must be one of which the Federal Court has taken cognizance[3]. "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's taking cognizance of a dispute" (per Dixon J.[4]). Some difficulty arises from the distinction made in the section between dealing with an industrial dispute and with part of an industrial dispute. The power of State industrial authorities does not necessarily depend upon the existence of a dispute. Such an authority is commonly empowered to make a general industrial regulation irrespective of a dispute. By the exercise of that power, however, it is possible for the authority to determine a dispute or in some other way directly affect it. Accordingly this Court held that if the State authority "claims the power to deal with persons and subject matters within the ambit of that dispute and proceeds to exercise that power, then ... it is dealing with that dispute" (per Gavan Duffy, Rich and Starke JJ.[5]). But it must be in rare cases only that a State tribunal can cover an entire inter-State dispute. It is held that a State industrial authority deals with an inter-State dispute when it applies to that integral part of it that extends into the State the tribunal's power of conciliation and arbitration so as to determine, as between the parties concerned and within the State, their mutual legal rights respecting the industrial matters in contest (per Isaacs J.[6]). The expression "part of an industrial dispute" therefore does not appear to be directed to the distinction between so much of an industrial dispute as lies within a State and so much as extends beyond it. It appears to be directed to a division of an inter-State dispute into parts by reference to subject matter or classes of disputants. The third of the things, one or other of which must be made to appear, is that the State tribunal is dealing with or about to deal with a matter provided for in an award. An award provides for a matter by imposing upon the parties bound by the material part of the award an industrial regulation involving rights and duties in reference to some particular subject. Possibly it provides for a matter also when it denies to a claimant relief of this character. But the provision of an award necessarily applies to definite parties ascertainable under sec. 29. The expression "a matter which is provided for in an award" involves not merely a subject of regulation but objects, viz., the parties bound by an award. In the same way, a matter which is the subject of proceedings before the Court is necessarily the subject of dispute between the disputants, and, again, this expression connotes parties as well as a subject for decision. Each of the four things must be specific and not generic. The State tribunal must be dealing with or about to deal with a specific dispute, a specific part of one, or a specific matter or matters[7]. If one of these four things appears, a Court may make an order restraining the State industrial authority. A discretion is given to the Court, which goes not only to the question whether an order should be made at all, but also to the extent of the restraint and to terms and conditions limiting the restraint. But if the Court determines to make an order, it is the same specific dispute, or specific part thereof, or specific matter, that must be the subject of the restraint. "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 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" (per Isaacs J.[8]). A specific description of the thing with which the State industrial authority is restrained from dealing must be given in the order so that the section may operate upon it. By the section the State industrial authority is commanded, in accordance with that order, to cease to proceed in the dispute, or part thereof, or in that matter. If the dispute, or part thereof, or matter, is defined with sufficient precision to satisfy the condition upon which the operation of the section depends, the duty of the State tribunal to cease arises, but that duty is limited to proceeding in the dispute or part or matter defined. In all other respects it may exercise its authority. But, once again, the dispute or the matter is a conception involving not only a subject but parties. At the root of the decision of this Court in the Western Australian Timber Workers' Case[9] lies the principle that under sec. 20 the State industrial authority cannot be restrained from performing its functions in relation to persons who are not parties to the industrial dispute of which the Commonwealth Court of Conciliation and Arbitration has cognizance and are not bound or liable to be bound by an award made or to be made in that dispute. This was fully recognized in a judgment delivered in that Court shortly after the decision of this Court in the Western Australian Timber Workers' Case[10]. In H. V. McKay Pty. Ltd. v. Court of Arbitration of Western Australia[11], his Honor Chief Judge Dethridge said:—"The Court's power of having cognizance of a dispute is limited not only to the subject matter of a justiciable dispute, but also to the persons or bodies properly made parties to the dispute. It cannot restrain a State authority in respect of any other subject matter or persons or bodies." Again, "It follows that I cannot make an order restraining the Western Australian Court except as to persons or bodies properly made parties to the present disputes, and that I can make no such order as to duties and rights in respect of employees not members of a body properly made such a party."

The order made by his Honor Judge Drake-Brockman in the present case recites that it appears that the conciliation committee which it restrains is about to deal with matters for which provision has been made in an award which it specifies and/or is about to deal with matters the subject of an actual, threatened, pending or probable dispute between the Timber Merchants and Sawmillers' Association and others and the Australian Timber Workers' Union and others. It orders that the conciliation committee should be restrained from dealing with any matter as aforesaid. It is unnecessary to enter upon the facts beyond stating that it is clear that many persons who would be affected by a determination or award of the conciliation committee in the proceedings restrained by the order are not bound by the Federal award referred to and are not parties to the industrial dispute. The order is quite general in its terms, which upon their natural meaning extend to the subject matters provided for in the award or in controversy in the dispute, not merely as between the parties to the dispute or award, but generally and irrespective of persons. Moreover the matters for which provision has been made in the award are not specified. The tribunal is left to collect them from a perusal of the award when and if it obtains it.

Upon the natural meaning of the language of the order, it extends beyond the authority conferred by sec. 20 and does not satisfy the conditions required to bring into operation the prohibition contained in that section. During the argument before this Court, the question whether the award should be artificially interpreted so as to restrain its meaning was discussed. If within the four corners of the document any sufficient reference could be found to the parties in dispute from which they could be identified by the State tribunal, it might be possible to construe the general expression "matters the subject of dispute" as referring thereto and as confined in its meaning to a dealing by the tribunal with such matters as between the disputants. The order, however, does not even identify either in its body or in its heading the dispute of which the Court of Conciliation and Arbitration has cognizance. Moreover, we know from the reasons of his Honor Judge Drake-Brockman that he did not intend his order so to be confined. Perhaps the order is an instrument within the meaning of sec. 9A of the Acts Interpretation Act 1904-1934. If so, under par. (b) of that section, the order should be read and construed so as not to exceed the authority given by sec. 20. But it is unnecessary to consider this question because it cannot affect the failure of the order to specify the matters which the State industrial authority is restrained from dealing with. The failure to state what matters, provided for in an award or the subject of the dispute, the State conciliation committee should not deal with is not an excess of the Court's authority under sec. 20. It is a non-compliance with an essential condition which must be fulfilled before the operation of the prohibition contained in sec. 20 is effective. The order is, therefore, invalid.

The applicant seeks from this Court an order that the respondent shall pay the costs of the present application. There is no definite practice not to allow costs upon a summons under sec. 21AA (per Rich J., Federated Engine-Drivers' and Firemen's Association of Australasia v. A1 Amalgamated[12]). The present case approximates in its character to ordinary litigation. The power of the Court of Conciliation and Arbitration under sec. 20 was argued before his Honor Judge Drake-Brockman, and the applicant resisted the order upon the same grounds as have been taken before this Court. The respondents pressed for the order and relied upon contentions of law which have failed. The decisions of this Court were cited. The proceeding is therefore analogous to an appeal upon questions fully argued in the Court below. In the circumstances, it seems proper to order that the respondents pay the costs of the application before this Court.

Declare that the order of the Commonwealth Court of Conciliation and Arbitration of 12th April 1935 in the summons mentioned is invalid and of no effect. Order that the respondents pay the costs of this application.

[1] [1926] HCA 51; (1926) 38 C.L.R. 563.

[2] [1929] HCA 26; (1929) 43 C.L.R. 185.

[3] (1929) 43 C.L.R., at pp. 204, 205.

[4] (1929) 43 C.L.R., at p. 205.

[5] (1926) 38 C.L.R., at p. 580.

[6] (1926) 38 C.L.R., at p. 571.

[7] (1929) 43 C.L.R., at pp. 200, 206.

[8] (1929) 43 C.L.R., at p. 201.

[9] [1929] HCA 26; (1929) 43 C.L.R. 185.

[10] [1929] HCA 26; (1929) 43 C.L.R. 185.

[11] (1929) 28 C.A.R. 333, at pp. 334, 337, 338.

[12] [1924] HCA 64; (1924) 35 C.L.R. 349, at p. 354.

High Court of Australia

Australian Timber Workers' Union v Sydney & Suburban Timber Merchants' Association [1935] HCA 55; (1935) 53 CLR 665 (18 July 1935)

HIGH COURT OF AUSTRALIA