R v Commonwealth Conciliation & Arbitration Commission; Ex parte Printing Industry Employees' Union [1964] HCA 17; (1964) 109 CLR 544 (20 March 1964)

HIGH COURT OF AUSTRALIA

REG. v. COMMONWEALTH CONCILIATION AND ARBITRATION COMMISSION; Ex parte PRINTING INDUSTRY EMPLOYEES' UNION [1964] HCA 17; (1964) 109 CLR 544

Industrial Arbitration (Cth)

High Court of Australia
Kitto(1), Taylor(2), Menzies(3), Windeyer(4) and Owen(5) JJ.

CATCHWORDS

Industrial Arbitration (Cth) - Industrial dispute - Ambit - Log of claims served by unions on employers' organizations - Long service leave claimed - Claims rejected - Log of claims by employers concerning long service leave - Claims rejected by employees - Withdrawal by unions of claims for long service leave - Employees entitled to long service leave under State legislation - Whether industrial dispute on question of long service leave - The Constitution (63 & 64 Vict. c. 12), s. 51 (xxxv.) - Conciliation and Arbitration Act 1904-1961 (Cth), ss. 4, 23, 39.

HEARING

Melbourne, 1964, February 26-28;
Sydney, 1964, March 20. 20:3:1964
PROHIBITION.

DECISION

March 20.
The following written judgments were delivered:-
KITTO J. In my opinion the order nisi should be discharged. I do not wish to Owen. (at p550)

TAYLOR J. I agree with my brothers Menzies and Owen that the failure to accede to the employers' logs of claims served upon the respective employees' organizations in May and July 1957 gave rise to an industrial dispute, which is still subsisting, and I have nothing to add to their observations. (at p550)

MENZIES J. It appears to me that because the employer organizations, which were party to the dispute which was settled in part by the Graphic Arts (Interim) Award 1957, had in October 1954 served the unions concerned with a log making provision for annual leave as "the only leave to which the employees shall be entitled because of any period of service or employment" and this had not been conceded, there existed a dispute about long service leave which the unions could not bring to an end by withdrawing claims which they had earlier made for such leave. Accordingly, notwithstanding the unions' withdrawal in July 1958 of their unconceded claims for long service leave, there is still in existence a dispute about such leave arising from non-acceptance of the employers' original claim and re-defined by the service by the employers in July 1957 of a further claim - not conceded - that conditions of employment should be altered by the provision of long service leave upon the terms therein set out. (at p550)

2. So far as the dispute between the parties to the Metal Trades Award is concerned, I consider that non-acceptance by the unions of the claim made by the employer organisations in May 1957 that "the wages terms conditions and rights of and arising out of employment under which the employees of their members are at present working should be altered to prescribe the provisions for and in relation to long service leave set out in the accompanying log of claims for all such employees in the States of New South Wales, Victoria, Queensland, South Australia and Tasmania" did give rise to an industrial dispute which the Commission has power to determine. The withdrawal on 3rd July 1957 by the Electrical Trades Union of Australia of its original claim for long service leave - which it is common ground did occur - cannot affect the continued existence of the dispute arising from nonacceptance of the employers' log of May 1957. It is not necessary to consider here whether a demand for an award and nothing but an award of the Commission, without changing existing conditions of employment, could form the basis of an industrial dispute because, as has already been seen, the claim of the employer organisations was for an alteration in existing conditions of employment - and this could certainly give rise to an industrial dispute. Disregard by the unions of that claim did, in my opinion, result in an industrial dispute about long service leave. (at p551)

3. In my opinion the order nisi should be discharged. (at p551)

WINDEYER J. The legal mechanics used by organizations of employers and employees who seek from the Commonwealth Conciliation and Arbitration Commission awards governing conditions of employment are a familiar part of Australian industrial law and of the regulation of Australian industry. The jurisdiction of the Commission must, of course, have, as its constitutional basis, an industrial dispute, existing or impending. This requirement, and the requirement that the dispute extend beyond the limits of any one State, can be satisfied by a "paper dispute" deliberately created. But the Constitution puts limits to artificiality. I referred to this in the Professional Engineers' Case [1959] HCA 47; (1959) 107 CLR 208, at p 268 . There must be a real, not merely a fictitous, dispute; and it must be an industrial dispute. That there is such a dispute may be evidenced by the fact that a log of claims put forward by one side is not acceded to by the other. But it does not follow that merely because a particular claim in a log of claims is not formally contested, or as a matter of tactics is withdrawn, a dispute is at an end. Whether or not there be a dispute is a question of fact. And that fact is not necessarily to be determined simply by construing, in terms of offer and counter-offer, written claims and correspondence. Nor is it to be determined simply by examining competing logs as if one were searching for an issue defined by pleadings. In the present case, however, there is not need to look beyond the documents and it is well to remember what the Chief Justice said in Reg. v. Kelly; Ex parte Australian Railways Union [1953] HCA 96; (1953) 89 CLR 461 : "It is perhaps wise to limit the answer to the particular case. For in questions concerning the artificial conceptions which have promoted the growth of the jurisdiction of the Arbitration Court strange and unexpected combinations of fact are apt to present themselves" (1953) 89 CLR, at p 476 . The facts are fully set out in the judgment of my brother Owen, which I have had the opportunity of reading. I agree in his conclusions. (at p551)

2. It is, I think, abundantly clear that there was, at all relevant times, a dispute between employers' and employees' organizations as to conditions of employment, including the leave to which employees should be entitled. The employees, who had at first wished for the inclusion of provisions for long service leave in an award, ceased to ask for this when State legislation dealt with the subject. Thereupon the employers, who had earlier opposed any provision for long service leave in the award, changed their ground and wished to have provisions for it included, thinking it better, from their point of view, to have the matter regulated by Commonwealth than by State law. But a change of front by the disputants did not put an end to the dispute. The dispute was, and is, as to long service leave among other conditions of employment. In particular it is as to whether that subject should be regulated by the Commonwealth award governing the conditions of employment generally. We would, I consider, be deserting reality for mere legalisms if we were to hold that there was not a real dispute. In my opinion the dispute is clearly about an industrial matter within the definition in the Conciliation and Arbitration Act, and is an industrial dispute within the meaning of the Constitution. (at p552)

3. The order nisi should therefore be discharged. (at p552)

OWEN J. This is an application by a number of unions of employees to make absolute an order nisi for prohibition directed to the Commonwealth Conciliation and Arbitration Commission and various employer organizations prohibiting the further hearing and determination of applications which are now before the Commission for the variation of two awards by making provision for long service leave for employees on the terms and conditions set out in the applications. The order nisi was granted upon the ground that no industrial dispute on the subject of long service leave exists between the employers and unions. The awards which are sought to be varied are the Graphic Arts (Interim) Award 1957 and the Metal Trades Award 1952 and the same question arises in each instance, namely whether an industrial dispute exists, but in each case the facts differ to some extent and it is convenient to deal first with those relating to the Graphic Arts Award. They are set out in detail in a judgment delivered by Gallagher J., a member of the Commission, which is reported (1959) 92 CAR, at p 556 , and for present purposes may be stated as follows: (at p552)

2. In August 1954 The Printing Industry Employees' Union of Australia, one of the applicants for the rule and which I will call the first union, served upon the Printing and Allied Trades Employers' Federation of Australia and The Federation of Master Photo-Engravers of Australia a log of claims for wages and working conditions, including a claim for long service leave. In September 1954 The Amalgamated Printing Trades Employees' Union of Australia, another of the applicants for the rule and which I will call the second union, served upon the same organizations of employers a log of claims relating to wages and working conditions, including a claim for long service leave upon conditions somewhat similar to those claimed in the log served by the first union. In October 1954 the two employer organizations mentioned above and a third employer organization, The Photo-Engraving Employers' Federation of Australia, served upon the first and second unions and upon another union of employees called The Federated Photo-Engravers, Photo-Lithographers and Photogravure Employees' Association of Australia, which I will call the third union, a joint log relating to wages and working conditions. It proposed that provision should be made for annual leave but that this should "be the only leave to which employees shall be entitled because of any period of service or employment". None of the claims set out in these logs was conceded by the organizations upon which they were served and it is admitted that as a result an industrial dispute within the meaning of the Conciliation and Arbitration Act came into existence between the unions and the employers. In July 1957 and before the dispute came on for hearing, the two employer organizations and a third one, The Victorian Chamber of Manufactures, which had not been served with the union logs, served upon the three unions a joint log claiming to vary the earlier joint log of October 1954 by making provision for long service leave upon terms less favourable to the employees than had been claimed by the first and second unions in the logs of August and September 1954. The letter accompanying this claim for a variation stated that "failing acceptance of the accompanying log within fourteen days of the service upon your organization, it is intended to submit the industrial dispute in the industry to which such log relates for settlement in accordance with the Commonwealth Conciliation and Arbitration Act". The claim for this variation was not acceded to by the unions within the fourteen days specified or at all. Thereafter the claims and counter-claims set out in these various logs were considered by Mr. Commissioner Kelly and in February 1958 he made an interim award for the Printing Industry. The award stated, in cl. 57, that certain matters, including the claims relating to long service leave, were "reserved for further consideration", and this no doubt was done because the power to make an award providing for long service leave is exercisable only by the Commission in Presidential Session (s. 33(1)(c)). On 7th July 1958, the Industrial Registrar notified the parties concerned that the dispute concerning long service leave would be heard by the Commission in Presidential Session on 29th July 1958 and, following this notification, the first and second unions on or about 25th July 1958 notified the two employer organizations upon which the union logs of 1954 had been served that the claims for long service leave contained in those logs were "absolutely entirely and unreservedly" withdrawn. On 29th July 1958 the matter came before the Commission in Presidential Session and counsel for the unions submitted that, as a result of the withdrawal by the unions of their claims for long service leave, an industrial dispute on that subject no longer existed and that the Commission had therefore no jurisdiction to deal with the matter: Reg. v. Blackburn; Ex parte Transport Workers' Union of Australia (1953) 88 CLR 125 . The objection was overruled and the Commission proceeded to consider a further submission made by counsel for the unions, based upon s. 41(1)(d)(iii) of the Conciliation and Arbitration Act, that the making of an award prescribing long service leave was not necessary or desirable in the public interest. After consideration the Commission reached the conclusion that it "should not discuss the matter but should refrain, until further order, from determining the disputes so far as they concern long service leave". In June 1963 and as the result of a further application made by the three employer organizations, the Commission in Presidential Session decided that it should no longer refrain from hearing and determining the matter of long service leave and, in August and September 1963, that question came on for hearing and judgment was reserved. Thereupon application was made to this Court by the unions for the order nisi for prohibition which it is now sought to make absolute. (at p554)

3. On these facts, it seems to me to be clear that there is an industrial dispute existing between the various parties on the issue of long service leave and the terms and conditions upon which it should be granted. When the unions, in July 1958, withdrew their claims relating to such leave which had been put forward in their logs in 1954, there still remained on foot the claim made by the three employer organizations in their log of July 1957, a claim to which the unions concerned had not acceded. It is plain enough that in 1954 the unions were maintaining a claim for long service leave upon terms and conditions to be settled either by an industrial agreement or, in default of agreement, by an award. The employers, on the other hand, were rejecting that claim and, in turn, contending that no leave other than annual leave should be granted. Later, and as a result of the provisions for long service leave made by legislation in the various States, the parties reversed their attitudes. The employers desired to avoid the obligations imposed by the State laws by having the matter dealt with either by an industrial agreement having the force of a Federal award or, in default of agreement, by an award while the unions' attitude was that they wanted the conditions of long service leave to be governed by the State laws on the subject which, from their point of view, were more favourable than were the conditions put forward by the employers. The withdrawal by the unions of their claims in 1958 left outstanding the claims by the three employer organizations in 1957 that long service leave should be granted upon the terms and conditions set out in the joint log put forward by them in July of that year, and the unions were opposed to that claim. (at p555)

4. Counsel for the applicants submitted, however, that a finding should not be made that an industrial dispute now exists on the subject of long service leave. There was, he said, only one dispute on that matter. Its ambit was defined by the logs put forward by the unions in August and September 1954 and the log put forward by two of the employer organizations in October of the same year, as varied by the log put forward by those two organizations and The Victorian Chamber of Manufactures in July 1957. When the unions withdrew their claims against the organizations other than The Victorian Chamber of Manufactures for long service leave in July 1958 whatever industrial dispute on the matter previously existed came to an end. The employers' claim in July 1957 that long service leave should be granted on the terms specified by them was to be regarded as no more than a statement of what the employers were prepared to grant if the unions persisted with their earlier claims. Since they had not done so, the dispute was at an end. But this submission cannot be accepted. The conclusion is clear that the employers' claim that long service leave should be allowed upon the terms specified by them was not made conditionally upon the unions' claims being pressed. It was made for the purpose of obtaining an industrial agreement having the force of an award or, in default of agreement, an award under the Act which would supersede the State laws on the subject, and it is equally clear that the stand taken by the unions was that the more favourable terms and conditions for which the laws of the States provided should continue to apply and that they were not therefore prepared to accept the terms and conditions proposed by the employers. That a dispute about an industrial matter then arose and still exists seems to me to be indisputable. (at p556)

5. It was further submitted on behalf of the applicants that the employers' purpose in serving the joint log in 1957 was to obtain a Federal award prescribing the terms and conditions upon which long service leave was to be enjoyed in order to avoid the effect of the legislation in the States and the unions' failure or omission to accede to the employers' claim could not and did not create a dispute on an industrial matter. In support of this submission reliance was placed upon a passage in the judgment of Fullagar J. in Reg. v. Graziers' Association of N.S.W.; Ex parte Australian Workers' Union [1956] HCA 31; (1956) 96 CLR 317 , in which his Honour said: "The only real disagreement between the parties, if any can be said to have existed, lay in this, that the employers wanted, and the union did not want, the rates of pay of non-unionists to be governed by a federal award. And that is not a disagreement about an 'industrial matter'" (1956) 96 CLR, at p 337 . Counsel's argument proceeded upon the basis that this statement meant that a dispute between employers and employees as to whether the conditions governing an industry should or should not be laid down by a Federal award could not constitute a dispute about an industrial matter. But when the facts of that case are examined I think it is apparent that the passage quoted was not intended to convey that meaning. The facts were that a demand had been made upon a union by employer organizations that certain minimum rates of pay and conditions of employment should apply to all employees, that is to say to those who were members of the union and those who were not. There was in existence a State award covering both unionists and non-unionists and the purpose of the employers was to obtain a Federal award and thus supersede the State award which provided for higher rates of pay than were proposed in the employers' demand. The union did not accede to the demand. A Conciliation Commissioner purporting to act under the Conciliation and Arbitration Act made an interim award which covered non-unionists as well as employees who were members of the union, and an application for a writ of prohibition was successfully made to this Court to prohibit further proceedings on the interim award but only in so far as it related to employees who were not members of the union. The Court held that since the union represented only its own members, its mere failure to accede to the employers' demand concerning non-unionists afforded no evidence of the existence of an industrial dispute as to the rates of pay and conditions of employment to be prescribed for such persons. Accordingly the Conciliation Commissioner had no jurisdiction to make an award governing the rates of pay and conditions for those who were not members of the union. The fact "that the employers wanted, and the union did not want, the rates of pay of non-unionists to be governed by a federal award" did not constitute an industrial dispute since there could be no such dispute without at least two disputants and this element was lacking. (at p557)

6. I turn then to the relevant facts relating to the Metal Trades Award. In August 1950 The Metal Trades Employers' Association, The Motor Traders' Association of New South Wales (Incorporated), The Victorian Chamber of Manufactures and The Metal Industries Association of South Australia (Incorporated), all of whom are respondents to these proceedings, served upon a number of the present applicants a log of claims which made no reference to the subject of long service leave. A number of counter-logs by the unions concerned were served on the employer organizations but, with one exception, these contained no provision for long service leave. In the case, however, of a log served by The Electrical Trades Union of Australia a claim was made for what was described as "continuous service leave" which was in fact a demand for long service leave upon terms and conditions set out in the log. The employer organizations did not accede to the union's claim. Later, in May 1957, the employer organizations served a further log upon the unions, including The Electrical Trades Union of Australia, which made provision for long service leave upon terms less favourable than those claimed earlier by the latter union. The unions did not accede to the claims made in the employers' log. The evidence before us does not show that the claim for long service leave put forward by The Electrical Trades Union of Australia was later withdrawn but the parties have informed us that this was the fact and that the withdrawal took place in July 1957. The employers' claim, however, remained and it came on for hearing before the Commission in Presidential Session at the same time as it heard the claim for a variation of the Graphic Arts Award. Here again it is plain that the purpose of the employers' demand was to obtain an agreement having the force of an award or an award which would have the effect of superseding the provisions of State legislation on the subject of long service leave. But, as in the Graphic Arts matter, I think it is clear that an industrial dispute exists in relation to long service leave and the fact that the purpose of the employer organizations was as I have stated does not justify the conclusion that no such dispute exists. (at p558)

7. The order nisi should be discharged. (at p558)

ORDER

Order nisi discharged with costs.