R v Gough; Ex parte Cairns Meat Export Co Pty Ltd [1962] HCA 56; (1962) 108 CLR 343 (12 November 1962)

HIGH COURT OF AUSTRALIA

THE QUEEN v. GOUGH; Ex parte CAIRNS MEAT EXPORT CO. PTY. LTD. [1962] HCA 56; (1962) 108 CLR 343

Conciliation and Arbitration (Cth)

High Court of Australia
Dixon C.J.(1), McTiernan(2) and Taylor(3) JJ.

CATCHWORDS

Conciliation and Arbitration (Cth) - Award - Clause dealing with termination of employment - Dismissal of four employees for insufficient effort - Notification of situation &which could give rise to industrial dispute - Power or right of employer to dismiss - Order by Commissioner - Men to be offered re-engagement without break in the continuity of their service and with restoration of wages - Inter-State dispute - Whether order within power as variation of award - Prohibition - The Constitution (63 & 64 Vict. c. 12), s. 51 (xxxv.) - Conciliation and Arbitration Act 1904-1961 (Cth), s. 4 (1), "Industrial matters", par. (k), ss. 32, 40 (1), 41, 59 (2) - The Federal Meat Industry Award, 1959, cl. 6.

HEARING

Sydney, 1962, November 12. 12:11:1962
PROHIBITION.

DECISION

The following oral judgments were delivered:-
DIXON C.J. This is an order nisi for a writ of prohibition addressed to Mr. purported to make, of a nature which I shall describe. (at p347)

2. The prosecutor who applies for the writ of prohibition is the Cairns Meat Export Company Pty. Limited. (at p347)

3. The matter concerns some proceedings before the Commissioner which are said to arise out of the operation and administration of two awards, or perhaps I should say an award and an order of variation. The main award is called by a short title prescribed by the document itself, "The Federal Meat Industry Award 1959". That award was made by Mr. Commissioner Austin after a prolonged hearing of an industrial dispute, which Mr. Commissioner Austin appears to have heard between the early days of July and the early days of February 1959. He made the award on February 3rd 1960. A variation was made by Mr. Commissioner Austin about a year afterwards. To that I shall refer. (at p347)

4. The original award was entitled "In a dispute between the Australian Meat Industry Employees Union and the Meat and Allied Trades Federation of Australia" and vice versa, and the body that I have mentioned, the Meat and Allied Trades Federation of Australia, is apparently an employers' organization and one would guess was registered as such, but the award, that is, the Federal Meat Industry Award 1959, itself provided that the award should bind the Australian Meat Industry Employees Union and its branches and the Meat and Allied Trades Federation of Australia and its members; it went on specifically to mention a list of employers whose names were in this schedule and at the end of the schedule under Queensland is the name of the Cairns Meat Export Company Pty. Limited of Cairns, the prosecutor in this proceeding for prohibition. (at p347)

5. Now it appears that in the meat industry, at the time of the original award, certain procedures now in use had not then been introduced, and the purpose of the amendment made on 14th February 1961, the variation, was really to provide for the people engaged in specific tasks which were not specifically mentioned in the earlier document. The new procedures or method, so we are told, is called the "Can-Pak" method of slaughtering and depends on the use of a conveyor chain elevated above the floor of the slaughter area. "Can-Pak", perhaps in order to prevent misunderstanding I should say, has nothing to do with cans, but the "Can" in the expression is derived from Canada. We were so told at an early stage of the argument. The varied provision refers to things done at twenty-eight stations along the conveyor belt, I gather. Something is said in the variation about each of twenty-eight stations. Then you have a table divided into divisions of employees and what they do. (at p348)

6. That is of small relevance, but it makes clearer perhaps what I am about to say. (at p348)

7. There were four employees in the Cairns Meat Export Company who were engaged together in operations in a restricted area, I gather, and they were said to be performed in a "boning room". The material ultimately to form the "output" had to go through the boning room, and we are informed the amount of speed in the boning room rather controlled speed in the whole operation. (at p348)

8. In the Cairns Meat Export Company Pty. Ltd. the management took exception to the rate of work of these four employees and they decided that they should be disciplined and dismissed. Now the original award had a clause which related to the tenure upon which employees held their employment. It was cl. 6 of the award (1959), and it was under the heading "Contract of Employment". (at p348)

9. The material part is par. (b) of cl. 6, and it said "employment, other than casual" - and these employees were not casual - "shall be terminated only by a week's notice on either side." And then some details are given as to how and when and for what period the notice must be given or have currency, and then the provision proceeds: "This shall not affect the right of an employer to dismiss an employee without notice for malingering, inefficiency, neglect of duty or misconduct, in which case wages shall be paid up to the time of dismissal only, or to deduct payment for any day on which an employee cannot be usefully employed because of any strike other than in the meat industry", and then there is a reference to breakdown of machinery and other circumstances which are not material. (at p348)

10. The question was at once raised whether the company had any right or power to dismiss these men. The company, of course, said "On our view of the facts, they are guilty of inefficiency, neglect of duty or misconduct, and therefore we have a right to dismiss them". That was disputed, and the question whether they could be so dealt with was brought, as an industrial dispute or something like it, before Mr. Commissioner Gough, who is the respondent to this order nisi. He heard some evidence and then he made what are described as two orders. They are not drawn up in a formal shape : they consist of reasons with a final direction. His view was that the action taken by the company should not be conceded to the company. (at p349)

11. The reasons which Mr. Commissioner Gough gave appear. He says that he is giving an immediate ruling with regard to three of the men. He did that on 26th September 1962, and I shall mention the men's names - Cleall, Sneddon, Fang Yuen. He says it was not established that insufficient effort was shown on 23rd July 1962, when they were dismissed on these grounds. He compares their rates of output and so on, and says "Whether or not a go-slow restriction was placed upon output at the meatworks on the day in question and in the previous working weeks is irrelevant to the position of these three men, because it has not been established that sufficient effort in their case was greater or lesser than their actual output, somewhat above the average of crop boners, on 23rd July 1962. Their dismissal was not therefore justified for the reason given so far as the evidence and argument presented in these proceedings is concerned. They should therefore be offered re-engagement as soon as possible without break in the continuity of their service and with restoration of wages calculated on the prescribed weekly rate foregone as a result of their dismissal up to such time as they obtained employment." (at p349)

12. Then he mentions the case of Mr. Clifford, which he said he would deal with separately. (at p349)

13. Then the Commissioner goes on, "I order accordingly." Now these words "I order accordingly" express his order. The word "accordingly" necessarily goes back to what I have read. But as I pointed out, we are not here dealing with an order drawn up in formal fashion expressed in formal language. A few days later the Commissioner gave his decision in the fourth case, the case of Clifford ; he deals with the facts of his case and what he treats as the merits of his case, and then he goes on to say that the other boners were no faster than he was, and it was said he was head of a go-slow operation in the eyes of the company ; he, the Commissioner, does not think so, - he does not think that is right. The Commissioner goes on to say that he orders accordingly, that is, for Clifford's reinstatement and restoration. (at p349)

14. Now, the grounds of the order nisi for prohibition challenge the Commissioner's power to make any such order, the power to make either of the two orders. (at p349)

15. The jurisdiction of the Commissioner is that of the Industrial Commission, and constitutionally that takes us back to the fact that the Commonwealth industrial power is limited to legislation with respect to conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State. That is the source of the power and the power of anybody acting under legislation cannot rise higher than its source. (at p350)

16. The question therefore is, was what was done by these two alleged orders anything in the nature of or incidental to or consequential upon the prevention or settlement of an industrial dispute extending beyond one State ? The original award, it is conceded, was founded on such a dispute. It was doubtless - I speak only as a matter of conjecture and general understanding of the character of these things - one created by the delivery of a log of demands or a failure to respond to it, that is to say, to admit the demands, consisting in a denial of the demands, a refusal to answer the log or a failure to do so. One may take it that the passages from the original award which I have read were within the ambit of that original dispute and would stand. There has not been any dispute that the amendment made on February 14th, 1961, arising out of the adoption of the Can-Pak method was also within the ambit, although, of course, again doing some guesswork, one may say that there was a lot of foresight displayed in expressing the demands widely enough to cover the Can-Pak method, if that be so. (at p350)

17. The question still remains as to how Mr. Commissioner Gough could bring his two informal orders within the conception of the settlement of an industrial dispute extending beyond the limits of one state or within any conception of what was even incidental thereto or consequential thereon. Mr. Byers, who has argued the case in support of the two orders with considerable ingenuity and resource, begins by saying, "Well, anyhow, the statutory definition of 'industrial dispute' depends on 'industrial matters', and one kind of 'industrial matter' is 'the right to dismiss or to refuse to employ, or the duty to reinstate in employment a particular person or class of persons'." Be it so. You still must have an industrial dispute about that matter extending beyond one State. (at p350)

18. It seems clear enough that, when Can-Pak came in and this particular question as to the dismissal of these four men arose, that was not a new industrial dispute extending beyond the limits of one State concerning them. However, it is sought to meet that view by saying, "Well, at all events, there is always a power to vary an award. Here was an award made in 1959, varied again in 1961 - made on", I should, to be very accurate, say, "February 3rd 1960, but about a 1959 proceeding ; and then varied, and here is a power to vary awards. And all that was being done was to vary the awards." I shall read the power about varying awards. It is s. 59 (2) of the Conciliation and Arbitration Act 1904-1961 : "The Commission may, if for any reason it considers it desirable to do so, and shall, if it considers it desirable for the purpose of removing ambiguity or uncertainty, vary any of the terms of an award." (at p351)

19. Of course, Mr. Commissioner Gough was the Commission for the purposes we have in hand, and of course, he could vary the award if he had a jurisdictional basis for it. But, again, you cannot bring the fountain higher than its source : you cannot do it by a mere variation ; the variation would have to be within the original dispute comprised in the original log. I would say for myself that I cannot see any trace in Mr. Commissioner Gough's reasons, or his directions, of a purported exercise of the power of variation. There is nothing there amounting to a variation of the award. The Commissioner went straight at it as if he was dealing with a new matter which had arisen before him and needed a new remedy. But if there were any attempt to vary the award, I cannot see that it would have been within the original dispute. It would have required great foresight to make a dispute about these events, events which occurred three years later or at least two and one half years later. But that argument amounted to a bold effort to find a ground to support the direction given by the Commissioner. (at p351)

20. If you go further and look at what Mr. Commissioner Gough did, it will be seen that he was dealing with four individuals ; he dealt with them in relation to something which affected them individually and their conduct. He was not laying down new terms of the old award, he was dealing specifically with what must be done with reference to four persons. Of course if the award had been broken, there are remedies to be taken before the Commonwealth Industrial Court to deal with the breach. But the parties were not before the Commonwealth Industrial Court, they were not putting the matter forward as a breach, although it is more or less conceded that it would have been a breach, if the employers were not justified in their view of the facts. Because they had dismissed men without the requisite notice and for that there must be grounds. If they were justified on their view of the facts, of course they were at liberty to do it. But the question then arises, in view of what I have said : how could these orders be supported ? My answer is that I do not think they could be supported at all. It was an ordinary case of a Commissioner finding what he thought was a trouble and dealing with it independently of any question of his real authority. His real authority was to settle any industrial dispute extending beyond any one State, but this matter was something which was not of that character and did not partake of that character and was not incidental to the settlement of a two-state industrial dispute, and I therefore think that the order nisi for a prohibition to prohibit these orders as void must be made absolute. (at p352)

McTIERNAN J. I agree with the Chief Justice and his reasons. I think that the reinstatement of an employee was not a subject within the ambit of a dispute. And further, I do not think that it is correct to regard these orders that were made as orders amending the existing award. They do not appear on their face to have that character, nor in my view is that the substance of either of these awards. It rather looks like a judgment for the plaintiff in an action for wrongful dismissal including an order for wages and an order that he be restored to his former employment. (at p352)

TAYLOR J. I agree with what has been said and I have no desire to add anything. (at p352)