R v Galvin; Ex parte Metal Trades Employers' Association [1949] HCA 12; (1949) 77 CLR 432 (27 April 1949)

HIGH COURT OF AUSTRALIA

THE KING v. GALVIN; Ex parte METAL TRADES EMPLOYERS' ASSOCIATION [1949] HCA 12; (1949) 77 CLR 432

Industrial Law (Cth.)

High Court of Australia
Latham C.J.(1), Dixon(1), McTiernan(1), Williams(1) and Webb(1) JJ.

CATCHWORDS

Industrial Law (Cth.) - Standard hours of work - Alteration - Statutory power denied to conciliation commissioners - Award - Variation - Application to include daily tea-break - Jurisdiction of conciliation commissioner - "Industry" - "Standard" - Commonwealth Conciliation and Arbitration Act 1904-1947 (No. 13 of 1904 - No. 10 of 1947), ss. 4, 13, 16, 25.

HEARING

Sydney, 1949, March 30, 31; April 1, 27. 27:4:1949
ORDER NISI FOR PROHIBITION.

DECISION

April 27.
The following written judgment was delivered by: -
LATHAM C.J., DIXON, MCTIERNAN, WILLIAMS and WEBB JJ. This is the return of commissioner appointed under the Commonwealth Conciliation and Arbitration Act 1904-1947, and the Federated Ship Painters' and Dockers' Union of Australia. The respondent union has made an application by summons to the respondent conciliation commissioner for a variation of an existing award binding the union by adding to it a provision that a break for fifteen minutes be allowed employees for a rest period for tea, such break to be allowed two hours after the usual starting time. The Commonwealth Conciliation and Arbitration Act 1904-1947 contains the following provisions: - "13. A Conciliation Commissioner shall not be empowered to make an order or award altering: - (a) the standard hours of work in an industry; . . ." "25. The Court may, for the purpose of preventing or settling an industrial dispute, make an order or award altering: - (a) the standard hours of work in an industry; . . ." Thus Parliament has very clearly expressed its intention that any alteration of standard hours should be made, if at all, by the court (consisting of not less than three judges - s. 24) and not by a conciliation commissioner. (at p442)

2. The prosecutor contends that the order sought by the summons issued on behalf of the union would alter the standard hours of work in the industry to which the members of the respondent union belong and that therefore the conciliation commissioner has no jurisdiction to make such an order upon the summons. If the conciliation commissioner has no jurisdiction to make such an order, then this Court has jurisdiction, by virtue of s. 75 (v.) of the Constitution, to prohibit further proceedings upon the summons. A conciliation commissioner is an officer of the Commonwealth within the meaning of that provision. (at p442)

3. The relevant award was made by his Honour Judge Beeby on 21st March 1940. It provided in clause 4 as follows: - "The ordinary weekly working hours shall be 44, to be worked in a five or five and one-half day week to suit the convenience of the employer. The daily working hours shall be: - New South Wales and Victoria (excepting that in Sydney the present method of working the 44 hours at Morts Dock shall continue) - For a five day week, from 7.30 a.m. to 5 p.m. For a five and a half day week, Monday to Friday inclusive 8 a.m. to 5 p.m., Saturday 8 a.m. to noon, or in accordance with the usual custom of the establishment at which the men are employed." Provisions for other starting and finishing times were made in respect of South Australia and Queensland. Clause 5 related to meal hours and provided that in all ports the time for breakfast should be the hour preceding the usual starting time, and that the breakfast-break should not be taken when men were required to commence work at 7 a.m. or after, and preceding the usual starting time. Provision was also made for an interval of time for dinner, an hour, fifty-five minutes and forty-five minutes in different places, and another interval of time for supper, an hour. The award provided that for work during meal hours double time should be paid. Clause 6 provided as follows: - "(a) When practicable accommodation shall be provided for men to change their clothing, five minutes shall be allowed the men to clean their hands at each break, and suitable material provided for the purpose . . . (b) Men engaged in cleaning out oil tanks or bilges, when the work is of an exceptionally dirty nature, shall be allowed a reasonable time to cleanse themselves, and shall be provided with hot water for that purpose." (at p443)

4. Clause 14 provided that employees should not be entitled to travelling time from the place of engagement to the usual place of work, but that where men were required by the employer to travel they should be paid for actual travelling time. In Sydney men required to travel between Mort's Dock and Woolwich Dock were allowed a quarter of an hour each way. In Melbourne it was provided that no travelling time should be allowed to men called upon to work on either side of the River Yarra within stated places, but that for all travelling time on the River Yarra outside the area so defined and to certain other places men should be allowed twenty minutes' travelling time each way. Thirty minutes' travelling time was allowed where men worked at Yarraville, Spotswood or Williamstown. This provision for travelling time meant that men would be paid in respect of the period of travelling. It was not suggested that this provision meant that the working hours were to be reduced by the amount of travelling time. Such a provision does not relate to hours of work. (at p443)

5. On 8th September 1947 the Full Court of the Commonwealth Court of Conciliation and Arbitration varied clause 4 of the award by an order made as a result of what was described by the court as the Standard Hours Inquiry: see Print No. 7703 (1947). The proceedings were entitled "In the matter of applications by organizations of employees for variation of awards and agreements of the court re standard hours." The application was an application "for a reduction of the standard hours prescribed by awards from forty-four to forty per week." The court decided that the standard hours should be reduced and, in the case of the respondent union, made an order that the current award be varied by deleting clause 4 and inserting a new clause. The new clause provided as follows: - "Working Hours. 4. The ordinary weekly working hours shall be 40, to be worked in a five or five and one-half day week to suit the convenience of the employer." This clause also contains provisions relating to the daily working hours of the same character as had been included in the original clause 4. (at p444)

6. The prosecutors contend that clause 4 determines the standard hours in an industry in which the members of the respondent union are employed, and that any order for a tea-break would be an order altering the standard hours of work in the industry. (at p444)

7. It is contended on behalf of the respondent union in the first place that, even if such an order would alter standard hours, a conciliation commissioner may have jurisdiction to make such an order. This argument depends upon s. 16 of the Commonwealth Conciliation and Arbitration Act 1904-1947. Section 16 provides: - ". . . (2) A conciliation commissioner may, if he thinks fit, at any stage of a matter before him, and upon such terms as he thinks fit, refer any question of law arising in relation to that matter or any question as to whether he has jurisdiction under this Act in relation to that matter, for the opinion of the court. (3) The court shall hear and determine any question referred to it under this section. (4) Notwithstanding the reference of a question to the court under this section, the commissioner may make an order or award in a matter in which the question arose. (5) Upon the determination by the court of the question referred to it under this section: - (a) if the commissioner has not made an order or award in the matter in which the question arose, the commissioner may make an order or award not inconsistent with the opinion of the court; or (b) if the commissioner has made an order or award in the matter in which the question arose, the commissioner shall vary that order or award in such a way as will make it consistent with the opinion of the court." (at p444)

8. It is argued that these provisions enable a conciliation commissioner to proceed, where his jurisdiction is challenged, subject to a reference to the Arbitration Court of the question whether he has jurisdiction or not. That court will then make a binding determination of the question and upon this his jurisdiction will depend. If the decision is that he has no jurisdiction his provisional award must be altered by him to accord with the decision. If the decision is that he has jurisdiction, then under sub-s. (5) (a) he obtains jurisdiction by virtue of the decision. What ground, it was asked, is there for supposing that the conciliation commissioner will exercise the power the summons seeks to invoke without first proceeding to obtain the decision of the Arbitration Court upon the question whether he possesses jurisdiction? If he does refer the question to the Arbitration Court then his jurisdiction will depend on the decision of that court. The answer to this argument is to be found in a number of considerations. The commissioner is not bound to refer the question to the Arbitration Court. There already exists a pronouncement of that court in favour of his jurisdiction upon which he might well be expected to act without making a reference. What the summons asks him to do is to make an order which the prosecutors allege is outside his power. A person against whom a non-existent jurisdiction is invoked is not bound to wait until the tribunal decides for itself whether it has jurisdiction or obtains a decision of the question by a reference or case stated or the like. He may move at once for a prohibition. Section 13 imposes an absolute prohibition on the jurisdiction of the conciliation commissioner. Section 16 is not a grant of jurisdiction. It is merely a non obstante provision. It means only that the reference of a question to the court shall not prevent the commissioner from exercising such powers as are conferred upon him by the Act in relation to the making of an order or award. When a commissioner deals with a dispute there are many matters which may engage his consideration. He may be in doubt as to his jurisdiction to deal with a particular matter or to deal with some matter in a particular way. The object of s. 16 is to enable him to obtain the guidance of the Court of Arbitration upon the matter without impeding his consideration of other matters involved in the dispute which it is his function to prevent or settle. We are therefore not prepared to accept the proposition that s. 16 affords a bar to an application for a writ of prohibition prohibiting a commissioner from making an award upon a matter beyond the jurisdiction conferred upon him by other provisions in the Act. (at p445)

9. It is next argued for the respondent union that the occupation of the members of the union is not "an industry," so that even if an order for a tea-break would be an order altering standard hours of work it would not be an order altering standard hours of work "in an industry." The work of the members of the union is described in the award as "work done in connection with the docking, cleaning and painting of ships." It is true that they may be regarded as engaged in the industry of ship building or ship repairing, just as a carpenter who is employed in a boot factory may be regarded as employed in the industry of manufacturing boots. But such a man is none the less also employed in the industry constituted by the carpenter's craft. Similarly, ship painters and dockers are employed in an industry determined by the character of their occupation. Section 4 of the Act provides that "industry" includes, inter alia, "(b) any calling, service, employment, handicraft or industrial occupation or avocation of employees; and (c) a branch of an industry." There is nothing in the context or subject matter to displace the application of this definition to ss. 13 and 25. The industrial occupation of ship painters and dockers is therefore an industry under (b). Even if those engaged in that occupation are also engaged in the larger industry of ship-building or ship-repairing, the occupation of the members of the union is a "branch of an industry" within the meaning of par. (c) and is therefore an industry for the purposes of the Act. Thus there is no foundation for the contention that the award applying to ship painters and dockers is not an award which relates to hours in "an industry." (at p446)

10. Hours of work are determined for employers and employees in this industry by the award. It is contended for the respondent that provision for a tea-break relates to "conditions of employment" - to "amenities" - and not to hours of work. It is said that this view represents the uniform practice of the Arbitration Court. The uniform practice of that court could not relieve us of the duty of construing the statute and it could not alter the meaning of the language it employs. But, of course, as evidence of the construction which the Arbitration Court has placed upon the words, it would not be without persuasive force. Reference was made to various awards made by a single judge which provided for such breaks. It was not shown, however, that those awards brought about any alteration in relation to tea-breaks. There was nothing to show that they did not merely reproduce pre-existing standards which may have originally been established by practice or awards. The question, however, did come before the Arbitration Court in March 1948, when the Full Court held by a majority that a claim for a tea-break was not a claim for an alteration of standard hours of work in an industry. The decision was based upon a distinction between hours of work and conditions of work. But the fact that a particular provision may be described as relating to conditions of work does not show that it may not also be a provision which alters the standard hours in an industry. The categories of hours of work and conditions of work are not mutually exclusive. All the provisions relating to the terms upon which persons are employed may be accurately described as conditions of work. (at p446)

11. Where hours of work are determined by an award, the award specifies certain hours as working periods as distinct from non-working periods. During a non-working period, the employees are not subject to the control of the employer in relation to the work for doing which they are employed. An hour during which no work is to be done cannot be called an hour of work. So also a shorter period during which no work is to be done is not part of "hours of work." Thus a luncheon interval is not a period of work. If an award prescribed that working hours should be from 8 a.m. to 5 p.m. with one hour for lunch, there would be eight hours of work. If the award were altered so as to provide that the working hours should be from 8 a.m. to 5 p.m. with seventy-five minutes for lunch or with forty-five minutes only for lunch, the hours of work would be altered. No distinction can be drawn between such a case and the alteration of an award by providing a new tea-break of fifteen minutes or by abolishing an existing tea-break of fifteen minutes. In either case the hours of work would be altered. (at p447)

12. The relevant provision relates to "standard" hours of work in an industry. (at p447)

13. It was contended for the union that there were no standard hours in the industry because of such provisions as those in clause 6 for time to be allowed for cleaning &c. (at p447)

14. The word "standard" is used in several senses. The meaning of the word may vary in accordance with the context in which it is used. The primary idea which the word expresses is that of a measure of quantity or quality fixed or approved by some authority, e.g., standard foot, standard pound, standard of behaviour. In this case the word is applied to working hours in industry. When those hours are fixed by an award reference must be made to the terms of the award for the purpose of identifying the "standard hours." The legislature must be assumed to have been aware of the long-established practice in industrial tribunals of prescribing in awards what were to be the normal working hours in an industry subject to special provisions where such circumstances were deemed to warrant some remission in such working hours. The general provisions for normal hours must be regarded as fixing the standard hours of work. (at p447)

15. The question does not arise in this case whether a change of the time of starting or finishing work within the prescribed hours would be an alteration of standard hours. (at p447)

16. The provision for a tea-break of fifteen minutes would alter the length of the hours of work in each day prescribed in the award as the general rule for those engaged in the industry. It would therefore be an alteration of the standard hours of work in the industry and would be an alteration which a conciliation commissioner is not empowered to make. Accordingly the order nisi should be made absolute. The union's proper course is to make the application for a tea-break to the Court of Conciliation and Arbitration. (at p448)

ORDER

Order absolute. Costs of prosecutors to be paid by respondent union.