R v Kirby; Ex parte Transport Workers' Union of Australia [1954] HCA 19; (1954) 91 CLR 159 (23 April 1954)

HIGH COURT OF AUSTRALIA

THE QUEEN v. KIRBY AND ORS.; Ex parte THE TRANSPORT WORKERS' UNION OF AUSTRALIA [1954] HCA 19; (1954) 91 CLR 159

Industrial Arbitration (Cth.)

High Court of Australia
Dixon C.J.(1), Webb(1), Fullagar(1), Kitto(1) and Taylor(1) JJ.

CATCHWORDS

Industrial Arbitration (Cth.) - Inter-State industrial dispute - Ambit - Award - Agreement certified by conciliation commissioner - Application to Court to vary - Admission of absence of inter-State industrial dispute prior to certification - Conclusiveness - Validity of award - Prohibition - In respect of enforcement of agreement - Not merely in respect of order varying - Parties - Delay, etc., in objecting to validity of award - Conciliation and Arbitration Act 1904-1947 (No. 13 of 1904 - No. 52 of 1947), ss. 16 (1), 37, 48, 49.

HEARING

Melbourne, 1954, February 22;
Sydney, 1954, April 23. 23:4:1954
ORDER NISI for Prohibition.

DECISION

April 23.
THE COURT delivered the following written judgment:-
This is an application to make absolute a rule nisi for prohibition Arbitration and to the Transport Commission (Tasmania) prohibiting them and each of them from further proceeding with or upon an order of the court purporting to vary an agreement made on 24th October 1947 between the respondent commission and the prosecutor union and duly certified pursuant to the provisions of s. 37 of the Conciliation and Arbitration Act 1904-1947. (at p170)

2. The evidence before us shows that in November 1946 the union caused a log of claims relating to wages and working conditions to be served upon a number of employers in Tasmania and Victoria. This log, so far as it is relevant to the present case, claimed, by cl. 3, that: "The minimum weekly wage to be paid to the following classes of employees shall be - in addition to the basic rate -" certain specified amounts for the classifications respectively set forth. Apparently the claims of the union were not conceded and in April 1947 the matter of the dispute came before a conciliation commissioner and a submission was made on behalf of the Victorian employers concerned that there was not in existence in Victoria any dispute between members of the union and such employers or alternatively that, if any such dispute did exist, it was one proper to be dealt with by the State industrial authority of Victoria. The course which the conciliation commissioner took at this stage was to refer the "dispute" to the court. But before any other step in relation to this aspect of the matter was taken the union and the Tasmanian Road Transport Association, representing a number of employers in Tasmania, conferred and on 24th October 1947 the former entered into an agreement with the latter prescribing new rates of pay and conditions of employment. This agreement recited that the union had "submitted certain claims to the said Association" and that representatives of the union and of the association had met in conference and had agreed to a settlement of all matters in dispute between them as thereinafter set forth. On 8th December 1947 this agreement was, pursuant to s. 37 of the Act, certified by a conciliation commissioner. (at p170)

3. The respondent commission was not a member of the association, nor, it is said, was it a party to the earlier proceedings before the conciliation commissioner but on 24th October 1947 the commission entered into an independent agreement with the union and this agreement was also certified by a conciliation commissioner on 8th December 1947. This agreement was, for the purposes of this case, in precisely similar terms to the first mentioned agreement and contained a recital that the union had submitted "certain claims to the said commission" and that representatives of the union and of the commission had met in conference and had agreed to a settlement of all matters in dispute between them as thereinafter set forth. Clause 2 of the agreement, which it is convenient at this stage to set out, is in the following terms: "The basic wage payable shall be the amount of the basic wage for Hobart as determined by the Commonwealth Court of Conciliation and Arbitration and as varied from quarter to quarter in accordance with the fluctuations (if any) of the Court's retail price index numbers (second series)". (at p171)

4. Subsequently to the certification of these agreements the submissions previously made by the Victorian employers were argued before a conciliation commissioner and on 28th January 1948 he dismissed the union's claim so far as those employers were concerned. In doing so, he pointed out that although at the time when the union's log was served a few members of the union were employed in Victoria by employers in the transport industry, practically every one of those particular employees had resigned from the union or had applied for a clearance from that organization or had joined the Motor Transport and Chauffeurs' Association of Australia. Thereupon he proceeded: "It appears that at the extreme outside there are, now when the matter comes on for hearing, considerably less than a dozen employees of the respondents who are members of the Transport Workers' Union and the probability upon the evidence is that there are only one or two, if any. The Transport Workers' Union contends with considerable force that the sole and only reason for this is because it has not got an award of the court to cover the working conditions of its members if employed by the respondents and consequently those employees who would join and are desirous of joining the union, do not do so but have in many cases resigned and joined the other organization which can offer the benefits of a state wages board determination. (at p171)

5. The Transport Workers' Union strongly presses its claim to an award as a means of obtaining members. It contends that its desire is to embrace in its union all employees engaged upon transport and that if an award is made it will have no difficulty in enrolling many of the men now employed by the respondents as members of the Transport Workers' Union. However much one may sympathise with the officials of that union in this view, it is not a matter, in my opinion, which can unduly influence me in deciding the objections to an award put before me by the respondents. One of my duties under the Act is to promote goodwill in industry and to encourage the continued and amicable operation of orders and awards. It is my duty to do all in my power to prevent disputes and to settle disputes once they have arisen". (at p172)

6. After a careful review of the evidence given before him the conciliation commissioner expressed himself as not being satisfied. that in fact any dispute at all existed or was threatened between members of the union and any of the Victorian employers concerned. He did not, however, affirmatively find that no dispute did exist but went on to say that, even if he were of the opinion that a dispute did exist, he would consider it to be his duty in the public interest and in the interests of industrial peace to allow the working conditions in the industry in Victoria to continue to be dealt with by the State industrial authority. (at p172)

7. We have referred to the decision of the conciliation commissioner in some detail because his observations became of some importance in the course of the application in which the order now attacked was made. This application, instituted by the respondent commission, sought a variation of the agreement of 24th October 1947 by the deletion of cl. 2 and the insertion in its place of the following clause: "An adult male employee in the Transport Commission shall be paid at the rate of 40s. 4d. per day as a basic wage (non-adjustable) being the amount which the court declares to be just and reasonable without regard to any circumstance pertaining to the work upon which or the industry in which he is employed, for work done after the 20th October 1953". (at p172)

8. Upon the application coming on for hearing, counsel for the union contended that the court had no jurisdiction to vary the agreement because at the time it was made and certified no dispute existed between the union and the commission and, alternatively, that if a dispute existed, it was not a dispute or part of any dispute which extended beyond the limits of any one State. Upon these contentions being raised the representative of the commission sought and obtained an opportunity of securing instructions and upon the resumption of the hearing he informed the court that he accepted the position "that before the agreement was made and certified no dispute existed which extended beyond the limits of any one State". Nevertheless, the court was of the opinion that it was precluded by s. 16 (1) of the Act from questioning "whether the dispute as a result of which the conciliation commissioner certified the agreement was of an interstate character or not, and so consider whether or not its certification was within the conciliation commissioner's power". Accordingly the court held that it was "bound to regard it as certified following upon the existence of a dispute which extended beyond the limits of any one State", and further observed that "such being the nature of the original dispute we should regard it as continuing and the power of this court to vary it as being present". (at p173)

9. A further independent submission that the variation was outside the ambit of any original dispute was also made, the basis of the submission being that a claim to be paid a marginal rate or rates in addition to the basic rate was not a claim for payment of or the prescription of a basic wage. In our opinion this last submission should be rejected. The original claim was for payment not only of marginal rates in addition to established and certain basic rates but was a claim to be paid a basic rate and in addition certain specified marginal rates. It does not appear that any basic rate had already been established in this industry and, in our view, it would have been well within the jurisdiction of the court, in making an award in settlement of an industrial dispute as to the matters specified in the log of claims, to provide that the basic wage payable should be the amount of the basic wage for Hobart as determined by the court and as varied from quarter to quarter. It is not without significance that the parties themselves considered that cl. 2 of the agreement, framed as hereinbefore set out, was an appropriate provision to make in settlement of their so-called dispute as to wages. The truth is that the log purported to be a "log of wages and working conditions" and that cl. 3 thereof purported to make a claim with respect to "wages" generally and not merely and with respect to "marginal rates". (at p173)

10. The real difficulty in the matter is occasioned by the intimation made to the arbitration court by the representative of the commission for if there was no dispute or no dispute extending beyond the limits of any one State in settlement of which the agreement was made, it is difficult to see how for any purpose the agreement could have acquired any of the attributes of an award by a purported certification under s. 37 of the Act. The difficulty is not overcome by the provisions of s. 16 (1) for that section, however far its operation may extend, cannot operate to render inviolate and so clothe with validity an award or order the making of which, having regard to the limits of the relevant constitutional power, could not in the first instance have been authorized by the legislature. (at p174)

11. Apart from the intimation which was given to the court there would seem to be sufficient material upon which to conclude that a dispute of some kind did exist originally between the union and the commission. The agreement recites that the former had made claims on the commission and that having met in conference the parties had agreed to a settlement of all matters in dispute between them as thereinafter set forth. Whether or not the log of claims which was served upon the association was also served upon the commission does not appear but the recitals referred to acknowledge the existence of a dispute and that the terms of the agreement were designed to settle the matters in dispute. The terms of the commissioner's certificate made, it is not unreasonable to assume, at the request of and with the concurrence of the parties, lead to the same conclusion. But of what value are these indications when the representative of the respondent commission, after consideration, deliberately concedes for the purposes of the application before the arbitration court "that before the agreement was made and certified no dispute existed which extended beyond the limits of any one State". It may be that the concession is the result of a misapprehension as to the significance of the finding of the conciliation commissioner on 18th January 1948 that he was not satisfied that any dispute existed or was threatened between the members of the union and any of the Victorian employers concerned. This, of course, was a finding on the facts as disclosed to the commissioner at that time and, for the reasons appearing from his observations, throws no real light on whether a dispute extending into Victoria existed in October or December 1947. But whether the concession was made under a misapprehension or not it was, as we have said, deliberately made and should in this Court, as it was in the arbitration court, be treated as conclusive of the facts to which it refers. It is unfortunate that the concession is stated in the form of a conclusion and that the relevant facts upon which the conclusion was based were not stated or proved but in the absence of the precise facts this Court is left to do its best with the material before it. This being so, it must be assumed for the purposes of the case that at no relevant time was the commission a party to any dispute with the union extending beyond the limits of any one State. (at p174)

12. In these circumstances it is clear that the certification of the agreement in purported pursuance of s. 37 of the Act did not add anything to its efficacy. The agreement did not thereafter "have the same effect as" nor was it "deemed to be an award for all purposes" of the Act for the terms of the section are designed to produce such a result only upon certification of an original agreement made in settlement of a dispute as to industrial matters extending beyond the limits of any one State. (at p175)

13. To overcome the difficulty apparent upon the statement of this proposition the respondent commission relied upon the provisions of s. 16 (1) of the Act. But, though this section may have the effect of giving a practical operation to some awards or orders made without express legislative authority, it is, for the reason already given, incapable of protecting or preserving orders made not only in excess of the powers conferred by the Act, but also in excess of the capacity of the legislature to authorize the making of awards and orders in relation to industrial matters. Accordingly this case must be decided on the view that the agreement did not acquire the attributes of an award for any purpose, that it was not, pursuant to s. 48 of the Act, continued in force after the expiration of the specified period of its currency and that, in the circumstances, the court had no power, pursuant to s. 49, to make an award or order by way of variation of its terms. But it would be quite wrong for this Court to allow prohibition to go with respect only to the order of variation and thereby leave the parties apparently bound by the provisions of the agreement in its original form. For the objection to the jurisdiction of the court to vary the agreement is only consequential upon the submission that the agreement itself is in no sense an award and what must be restrained - if anything is to be restrained at all - is the enforcement of the agreement either in its original form or as the order complained of purported to vary it. The prosecutor, it may be said, cannot hope to succeed in destroying the order of variation by an argument that the original certification was without lawful authority and yet, apparently, maintain the original agreement in force as though it had been made in settlement of an industrial dispute within the meaning of the Act and thereafter certified pursuant to the provisions of s. 37. (at p175)

14. Some point was made by the respondent that prohibition should be refused on the ground that the prosecutor union had secured the certification of the agreement by a representation to the conciliation commissioner concerned, that it had been made in settlement of an industrial dispute; but we know of no principle which, in the circumstances of this case, would enable us to take this course. No doubt, at the time, the union believed this representation to be true and, indeed, at a later stage, endeavoured without success to maintain that certain Victorian employers were parties to the dispute which, as regards Tasmanian employers, had already been settled by agreement. Nor, do we think, is the court entitled to refuse prohibition as was suggested on the ground that the parties had for a long time acted in the belief that the agreement had properly been certified and that there had been considerable delay in raising objections to its validity as an award. (at p176)

15. For the reasons given we are of the opinion that prohibition should issue restraining the enforcement of the agreement either in its original form or as the order complained of purported to vary it. During the course of argument the suggestion was made that the Court might not feel free to take this course in proceedings to which the conciliation commissioner who purported to certify the agreement is not a party. We think that any such objection in the present case is disposed of by the observations of Starke J. in Waterside Workers' Federation of Australia v. Gilchrist, Watt & Sanderson Ltd. [1924] HCA 61; (1924) 34 CLR 482, at pp 552-553 concerning the basis upon which prohibition issues in respect of awards of the arbitration court. (at p176)

ORDER

Order absolute for a writ of prohibition prohibiting further proceedings upon the agreement made on 24th October 1947 and certified on 8th December 1947 and the order of variation thereof made on 23rd October 1953.