R v Commonwealth Conciliation & Arbitration Commission; Ex parte Australian Foremen Stevedores' Association [1958] HCA 59; (1958) 100 CLR 627 (19 December 1958)

HIGH COURT OF AUSTRALIA

THE QUEEN v. THE COMMONWEALTH CONCILIATION AND ARBITRATION COMMISSION; Ex parte THE AUSTRALIAN FOREMEN STEVEDORES' ASSOCIATION [1958] HCA 59; (1958) 100 CLR 627

Industrial Law (Cth.)

High Court of Australia
Dixon C.J.(1), McTiernan(2), Fullagar(1), Taylor(1) and Windeyer(1) JJ.

CATCHWORDS

Industrial Law (Cth.) - Commonwealth Conciliation and Arbitration Commission - Employee organisation - Waterside workers - Registration - Suspension - Inquiry Judicial power - Subsequent amendment of statute - Appeal - Right - Consideration of appeal by commission - Prohibition - Conciliation and Arbitration Act 1904-1956 (Cth.) - Stevedoring Industry Act 1954-1956, ss. 7 (1), 10, 14, 29, 36, 37, 38 - Stevedoring Industry Act 1956-1957, s. 37 - Stevedoring Industry Act 1957, s. 5.

HEARING

Sydney, 1958, November 12-14; December 19. 19:12:1958
PROHIBITION.

DECISION

December 19.
The following written judgments were delivered:-
DIXON C.J., FULLAGAR, TAYLOR AND WINDEYER JJ. This is the return of an order Arbitration Commission and to George Buchan and a number of other individuals who are members of the Waterside Workers' Federation. The prosecutors are the Australian Foremen Stevedores' Association, which is an organisation registered under the Conciliation and Arbitration Act 1904-1956 (Cth.), and two individual members of that association. It is sought to prohibit the commission from entertaining what purport to be appeals by Buchan and the other individual respondents against suspensions by the Australian Stevedoring Industry Authority of their registration as waterside workers in the port of Sydney under the Stevedoring Industry Act 1954-1956. The substantial ground of the application is that there was not at any material time any effective suspension against which an appeal could be brought by any of the individual respondents. There is a second ground taken by the order nisi, but that may be put on one side for the time being. (at p635)

2. It is convenient to begin by referring to the relevant provisions of the Stevedoring Industry Act. That Act makes provision for the registration of employers and waterside workers in Australian ports, and prohibits the employment of unregistered persons as waterside workers. Section 36(1) provides that where, after such inquiry as it thinks fit, the Stevedoring Industry Authority constituted under s. 10 of the Act is satisfied that a registered waterside worker . . . (c) has acted in a manner whereby the expeditious safe or efficient performance of stevedoring operations has been prejudiced or interfered with . . . the Authority may cancel or suspend the registration of the waterside worker. Sub-sections (2), (3) and (4) of s. 36 are in the following terms:- "(2) The suspension of the registration of a waterside worker at a port under the last preceding sub-section has effect until the expiration of such period, or of such number of working days at the port, as the Authority directs. (3) For the purposes of the last preceding sub-section, 'working day', in relation to a port, does not include a day declared by the Authority, in writing, to be a day on which there has been a concerted failure by all or any of the waterside workers registered at the port to comply with a provision of this Act, an order or direction of the Authority under this Act or an award of the Commission. (4) The Authority may, before holding an inquiry under this section in respect of a waterside worker, suspend the registration of the waterside worker and may at any time revoke that suspension." The term "working day" is defined by s. 7(1) as meaning in relation to any port a day other than Saturday or Sunday or a day which is a holiday for waterside workers at that port. Sub-section (3) thus restricts the meaning of the term for the purposes of s. 36. (at p635)

3. Section 37, as it stood in November 1957, purported to give to a waterside worker whose registration had been cancelled or suspended under s. 36 a right of "appeal" to the Commonwealth Industrial Court. In that month, as will be seen, the authority pronounced the "suspensions" which are now in question, and the respondent Buchan gave, within the time allowed by s. 37, notice of appeal to the Commonwealth Industrial Court. Thereupon the Waterside Workers' Federation applied to the High Court for a writ of prohibition on the ground that the power conferred by s. 37 was not judicial power and could not therefore be validly conferred on the Commonwealth Industrial Court: Attorney-General of the Commonwealth of Australia v. The Queen (1957) AC 288; (1957) 95 CLR 529 . The order nisi for prohibition was made absolute on 20th December 1957: see Reg. v. Spicer; Ex parte Waterside Workers' Federation. On 18th January 1958 s. 5 of the Stevedoring Industry Act 1957, which had received the Royal Assent on 12th December 1957, was proclaimed to come into operation. That section repealed the old s. 37 and substituted a new section, which gave a right of appeal from the authority to the Conciliation and Arbitration Commission, and, in cases where notice of appeal to the Commonwealth Industrial Court had been given, extended the time for appealing to fourteen days after the commencement of the new section. Notices of appeal to the commission against the suspensions pronounced in November 1957 were given on 4th February 1958. It is to prevent the commission from dealing with these "appeals" that a writ of prohibition is now sought. (at p636)

4. The "suspensions" in question had their origin in a dispute between the two individual prosecutors, O'Brien and Sykes (who are foremen stevedores employed by the Central Wharf Stevedoring Co.), and a man named Krespi. Krespi alleged that he had been assaulted by O'Brien and Sykes, and thereafter certain waterside workers, including the individual respondents, refused to work on certain ships to which they had been rostered to work under O'Brien and Sykes. On 14th November 1957 the local representative of the Stevedoring Industry Authority, acting under a delegation in pursuance of s. 14 of the Act, purported to suspend the registration of the individual respondents for two working days. There were in fact from 14th November to 4th December inclusive no "working days" in the port of Sydney within the meaning of s. 36. This was because every day in that period except Saturdays and Sundays was a day declared by the local representative of the authority in writing to be a day on which there had been a concerted failure by waterside workers in the port of Sydney to comply with an award of the Commonwealth Conciliation and Arbitration Commission: see s. 36(3). No such declaration was made on 5th December (which was a Thursday), and, although no stevedoring work was in fact performed in the port on that day by any member of the Waterside Workers' Federation, it would appear that that day was a "working day" within the meaning of s. 36. It would appear also that during that day negotiations were proceeding, and that an understanding was reached between the local representative of the authority and the union that, if the waterside workers "lifted the ban" on the foremen concerned, the "suspensions" would be "cancelled". Mr. White says in his second affidavit that the suspensions were, in accordance with this understanding, "cancelled on the 5th December 1957 at approximately 4.0 p.m.". There is no evidence that this "cancellation" consisted of anything more than an oral intimation that the suspensions were or would be "cancelled". In the press pick-up notice published in the Sydney Morning Herald and the Daily Telegraph of 6th December 1957 the following announcement appeared:- "The suspensions imposed on men involved in the foremen dispute and the sling load dispute on the undermentioned vessels have been cancelled, and all men are now rostered for work". The names of six vessels followed. An announcement in the same terms was made in the radio pick-up notice of the same day. (at p637)

5. The position of all the individual respondents is, for all material purposes, the same, and it will make for simplicity if we deal expressly only with the case of Buchan. (at p637)

6. Now, if the registration of Buchan as a waterside worker was ever effectively suspended under s. 36, it would seem clear that the authority had no power to cancel the suspension either in the sense of revoking it so as to make it void ab initio or in the sense of cutting short its operation. The power given to the authority by s. 36 is to cancel or suspend registration. A power to cancel either a cancellation or a suspension could not be held to exist unless it were given by express words or by clear implication. No such power is given expressly, and every indication of intention that can be found in the Act is clearly against the giving of such a power by implication. The Act itself prescribes or indicates what are to be the consequences of a cancellation or suspension, and those consequences must attach finally on an exercise by the authority of its powers under s. 36. The effect of a suspension is, by virtue of s. 38, that the waterside worker is deemed not to be registered, and a cancellation is clearly intended (subject, of course, to the right of appeal) to be final unless the person affected applies for re-registration under s. 29, in which case he must satisfy the authority as to certain specified matters. The special power to "suspend" and "revoke suspension", which is given by s. 36(4), is given only pending the holding of an inquiry. (at p637)

7. It is, of course, perfectly consistent with what has been said that the authority should have power, after deciding to cancel or suspend but before the cancellation or suspension has actually taken effect, to revoke its decision and substitute some other decision. But it follows from what has been said that, if there was in the first place a legally effective suspension of Buchan's registration, it operated in law (although the authority purported to "cancel" it) on 5th and 6th December, which were "working days" within the meaning of s. 36, and Buchan has a right of appeal to the commission. That right should be held to subsist, notwithstanding that the period of suspension expired on 6th December 1957, because Buchan must be taken to have an interest in establishing that the suspension was wrongly imposed in the first place. If, on the other hand, there was never any legally effective suspension of Buchan's registration, there can be no right of appeal. There is in that case no subject matter for the exercise of jurisdiction by the commission, and the order nisi for prohibition must be made absolute. The jurisdiction of the commission depends on the existence of a suspension - that is to say, a suspension which is operative and effective in law, and the existence of such a suspension is not a matter which can be conclusively determined by the commission. If there is such a suspension, the commission can be compelled by mandamus to entertain an appeal. If there is not such a suspension, it can be prohibited from entertaining an appeal. The real question in the case is, therefore, whether there was ever any legally effective suspension of Buchan's registration, and it is necessary to consider exactly what was done in the matter. All the relevant facts are before the Court. (at p638)

8. It appears that Mr. J.A. Murphy, the local representative of the authority, on 12th November 1957 held an inquiry, at which were present a representative of the Waterside Workers' Federation, a representative of the employers, Captain Stringer (who is described as "supervisor") and certain waterside workers members of gangs 311 and 346. The inquiry was in relation to the conduct of members of those gangs in refusing to work on the ship Shansi under foremen Sykes and O'Brien. Shorthand notes of the proceedings were taken and later transcribed. The transcript records that at the end of the inquiry the local representative said:- "I am satisfied that the men by their failure to commence work and complete an engagement as a waterside worker, they interfered with the expeditious performance of stevedoring operations, and their registrations are suspended under ss. 36(1)(c) and 36(1)(e)(ii) of the Stevedoring Industry Act 1956 for two working days. If this vessel is worked tonight by members of the Sydney Branch then the penalty imposed will be reconsidered." At the foot of the transcript appears the signature "J. Murphy" followed by the words "Act. Local Representative, Delegate A.S.I.A., 13th November 1957". (at p638)

9. On 14th November 1957 the local representative held a further inquiry, at which were present a representative of the employers, Captain Stringer, and certain waterside workers members of gangs 303 and 338. The inquiry was in relation to the conduct of members of those gangs in refusing to work on the ship Shansi under foremen Sykes and O'Brien. The transcript of the shorthand notes of the proceedings records that at the end of the inquiry the local representative said:- "As a result of the men's refusal to commence work and complete this engagement I consider the men acted in a manner whereby the expeditious performance of stevedoring operations was interfered with and their Registrations are suspended under cl. 36(1)(c) and 36(1)(e)(ii) for two working days." The transcript appears to be signed by "J.A. Murphy", and the signature is followed by the words "Local Representative, Delegate A.S.I.A., 14th November 1957". Nothing further was done in relation to the "suspensions" until the local representative on 5th December (which was the first working day after 13th November) made, as has been seen, some informal intimation that the suspensions were "cancelled", and on 6th December announced in the press and by radio that they had been "cancelled". (at p639)

10. Section 25(e) of the Act requires the authority to "establish and maintain a register of employers and a register of waterside workers" at each port, but the Act contains no detailed directions as to the form of the registers or the making of entries therein. It may have been contemplated that such matters would be the subject of regulations made under s. 60. It may have been thought that no such detailed directions were necessary. But, be these things as they may, the elementary necessities of the case require that a formal record shall be kept which contains the names and sufficient particulars of persons registered, and in which entries are made of all cancellations and re-registrations and suspensions. The very words "cancellation" and "suspension", like the word "registration" itself, denote the making of entries in a register. In fact the authority, as one would expect, maintains in book form a register of waterside workers in the port of Sydney. It also maintains a registration card in respect of each waterside worker registered in the port, and the registration cards are kept in a card index. No entry of any suspension of Buchan's registration was ever made either in the book register or on Buchan's registration card. Nor was any entry ever made either in the book register or on Buchan's registration card of any "cancellation" of any suspension of his registration. (at p639)

11. In these circumstances it seems impossible to hold that there was ever any legally effective suspension of Buchan's registration. The effect of what happened was simply this. On 14th November 1957 the local representative decided that Buchan's registration should be suspended for two working days. The decision, however, was never carried into effect, and there was in fact no working day in the port until 5th December. When the local representative on that day announced that Buchan's suspension was "cancelled", what was really being conveyed was an intimation that there was to be no suspension of Buchan's registration. In other words, the local representative was revoking his decision of 14th November, and there was no reason why he should not do so, because that decision had never been carried into effect. Actually the men were rostered for work and worked on 6th December: this would have been unlawful if any legally effective suspension had been in force. (at p640)

12. The view that there was never any effective suspension of Buchan's registration was the view taken by the authority itself. The intention of the local representative was made plain on 8th April 1958, when Buchan's appeal came before a Deputy President of the Conciliation and Arbitration Commission. Mr. R.L. Taylor Q.C., who appeared for the authority, said that the authority was not prepared to consent to the allowance of Buchan's appeal, because such a consent might be regarded as an admission that there was no justification for the original decision that Buchan's registration should be suspended. But he made it clear that the authority regarded the question raised by the appeal as "academic". He said:- "As far as the authority is concerned, the position is that these men never had been suspended . . . The suspension of the registration for two working days never became effective, and before it became effective the suspensions were lifted." Asked what was meant by "lifting the suspension", he said:- "It means in effect that they were not taken off the register for two working days." A little later he said:- "Their registration never has been affected. 'Suspension for a working day' really means that you go off the register in effect for the working day, and then you go back on again. That never happened to these men." (at p640)

13. For the above reasons there is no subject matter for appeal to the Conciliation and Arbitration Commission, and the order nisi for prohibition should therefore be made absolute. A second ground taken in the order nisi is:- "That the Commonwealth Conciliation and Arbitration Commission has no jurisdiction to inquire in the course of the said appeals into allegations that John Krespi was assaulted by the said Michael Thomas O'Brien and Edward John Sykes on the 11th day of October 1957 because the said allegations are not relevant to an appeal under s. 37 of the Stevedoring Industry Act 1956 - 1957." It is not necessary to consider this ground, but it is to be observed that on its face it does not appear to go to jurisdiction so as to afford ground for a writ of prohibition. (at p640)

McTIERNAN J. In my opinion this order nisi should be discharged. I think that it is incident to the powers conferred upon the Commonwealth Conciliation and Arbitration Commission by s. 37 to decide finally and conclusively whether or not the registration of a waterside worker was cancelled or suspended under s. 36. It seems to me that upon the proper construction of the Act, that should be presumed to be the intention of the legislature. It would follow, in my opinion, that no prohibition point is involved in the issue whether the registration of any of these waterside workers was suspended under s. 36. I think that it is not a question upon which the Court can, in these proceedings, properly express an opinion which is binding upon the Commonwealth Conciliation and Arbitration Commission. (See Parisienne Basket Shoes Pty. Ltd. v. Whyte [1938] HCA 7; (1938) 59 CLR 369, at pp 384, 391, 392 .) (at p641)

2. As I have said, I think that the better construction of the Act is that its intention is that the Conciliation and Arbitration Commission should decide whether or not a waterside worker who complains, by way of appeal, that his registration has been suspended, has been so dealt with. It seems to me that the question is one depending upon an examination of the relevant records of the Stevedoring Industry Authority, and essentially one more fit to be determined by the commission than by this Court. I can see no indication in the Act of a contrary intention. It seems to me to be clear upon the materials before this Court that the prosecutors, at any rate, alternatively, seek a writ of prohibition on the basis that the registrations of all these waterside workers were suspended under s. 36, and that the waterside workers themselves resist the present application on that basis. Indeed, counsel for the authority has not suggested that there was not an exercise of the power of suspension given by s. 36. What the prosecutors allege in denial of jurisdiction is that the suspensions were "lifted", that is to say, cancelled or revoked. The administrative action taken under s. 36, in order to suspend the registrations in question, and to "cancel" the suspenions, is detailed in the affidavit of Francis Ford White sworn on 28th August 1958. If it were a matter for this Court to decide whether or not decisions were made, pursuant to s. 36, suspending the registrations of these waterside workers respectively, I should, in view of the matters to which Mr. White deposes, have difficulty in deciding that the local representative of the authority did not decide to suspend such registrations. In this view the prosecutors have not discharged the onus of proving that the commission has no jurisdiction. That onus properly belongs to them. It is clear from this affidavit that the authority pronounced decisions to the effect that the registrations were respectively suspended. It seems to me, even if the point in question be a prohibition point, that the Court should not exercise its discretion to grant this remedy of prohibition to the prosecutors, on the basis that no suspensions under s. 36 did take place when they have not unequivocally affirmed that position. As I apprehend the argument, the ground upon which the prosecutors really contended that the commission has no jurisdiction to entertain the appeals, is that the suspensions were cancelled or obliterated and never resulted in loss by any of the waterside workers of his rights as such. (at p642)

3. The Act confers no express power upon the authority to revoke a suspension which it has made under s. 36. Once the suspension is made under that section, it takes effect according to the terms s. 36(2). I do not agree that the authority has then any locus poenitentiae. (at p642)

4. Notwithstanding Mr. Wootten's forceful and able argument, I find no room for an implication that the authority may revoke a suspension which it has made and promulgated under s. 36. The authority cannot by an attempt to revoke, interrupt the operation of the Act. It follows that if the commission should decide that the suspensions complained of by the respondents had taken effect under s. 36 - and it appears that the commission was proceeding on that basis - it would not be exceeding any jurisdiction with which it is vested by the Act to entertain the appeals in question. The materials before this Court show that the authority had resolved not to oppose the appeal of any of the respondents against the suspension of his registration. The commission has power under s. 37 to set aside the suspension of a registration against which it entertains an appeal. The respondents are entitled to look to the exercise of that power to undo all the effects of the suspension of their registrations. If the authority should maintain the attitude, which it appears to have manifested, of not opposing the appeal of any of these waterside workers, it would not appear likely that the commission would embark upon an inquiry into the allegations of assault against the individual respondents. Whether those allegations are so remote from any question upon which the appeal could reasonably turn as to be outside any jurisdiction conferred upon the commission by the Act, is a question which it is not possible to determine at this stage. However, if the commission were to proceed to investigate those allegations, I should not desire anything which I have said here to be taken as precluding me from regarding as res integra the question whether the commission would, in the circumstances, have jurisdiction to make findings adverse to the individual prosecutors that might prejudice them in the eyes of their employers. As I have said at the beginning of this judgment, the order nisi should, in my opinion, be discharged. (at p643)

ORDER

Order absolute for a writ of prohibition directed to the learned Presidential Member of the Commission constituting the Commonwealth Conciliation and Arbitration Commission for the purposes of Div. 4 of Pt. III of the Conciliation and Arbitration Act 1904 - 1957, and exercising or purporting to exercise authority under the provisions of s. 37 of the Stevedoring Industry Act 1956 - 1957, and prohibiting further proceedings upon the appeals or purported appeals of the respondents Buchan and others mentioned in Sched. A of the order nisi herein. No order as to costs.