R v Austin; Ex parte Farmers & Graziers Co-operative Co Ltd [1964] HCA 48; (1964) 112 CLR 619 (19 August 1964)

HIGH COURT OF AUSTRALIA

THE QUEEN v. AUSTIN; Ex parte FARMERS AND GRAZIERS CO-OPERATIVE CO. LTD. [1964] HCA 48; (1964) 112 CLR 619

Conciliation and Arbitration (Cth)

High Court of Australia
Barwick C.J.(1), McTiernan(2), Kitto(3), Taylor(4) and Owen(5) JJ.

CATCHWORDS

Conciliation and Arbitration (Cth) - Industrial dispute - Claim by employees for moneys payable during period of dismissal - Order by Commissioner - Jurisdiction - Order an attempted enforcement of legal rights - Whether any inter-State dispute.

HEARING

Sydney, 1964, July 28, 29; August 19. 19:8:1964
PROHIBITION.

DECISION

August 19.
The following written judgments were delivered:-
BARWICK C.J. This is an application for a writ of prohibition directed to Commission (the Commission) and the Federated Storemen and Packers' Union of Australia (the Union) to prohibit them from proceeding any further upon orders made by the Commissioner on 24th April by which the prosecutors were ordered to pay to certain of their employees whom they had dismissed on 19th November 1963 all wages and other payments payable under the terms of the Storemen and Packers' (Wool etc. Stores) Award 1960, Part 2, New South Wales (the Award) as if such employees had continued in employment with the prosecutors until the recommencement of work by such employees on 22nd November 1963, and by which it was ordered that the period from 19th November 1963 to 22nd November 1963 should count as service with the prosecutors for all purposes of the Award. (at p622)

2. The prosecutors are wool-selling brokers conducting wool stores in Sydney and are respondents bound by the Award. They are not all the persons in New South Wales bound by the Award, nor are they the only persons conducting wool stores in New South Wales, nor particularly in Sydney. (at p622)

3. The grounds on which the prosecutors say that the Commissioner had no authority to order the payment of the wages and to direct that the period between the dismissal of the employees and their re-engagement should count as service for all purposes of the award are: firstly, that relevant to the orders in question there was no industrial dispute and particularly no industrial dispute extending beyond the limits of any one State to be settled ; secondly, that the orders were not appropriate to any such dispute which might be found to exist ; thirdly, that the orders, so far as they directed payment of wages, were made in purported settlement of a legal claim which was justiciable in the courts and not capable of being dealt with by the Commissioner who, in attempting to make the orders which he did make, was attempting to exercise judicial power. (at p622)

4. It is necessary briefly to recount the principal circumstances leading up to the making of the orders and a variation of the Award concurrently made by the Commissioner. Elder Smith Goldsbrough Mort Limited (Elder's) is a wool broker conducting wool stores in Sydney and bound by the Award but it is not one of the prosecutors. In November 1963 demands had been made upon Elder's by the leaders of gangs employed by it at its wool stores in Sydney for additional wages and for a Christmas bonus. Immediately prior to 18th November 1963 Elder's informed the leaders of gangs in its employ that it would not accede to their claims. Thereupon the leaders held a stopwork meeting on Monday, 18th November, and decided that they would not act as leaders of gangs in Elder's wool stores in the future. Before Elder's became aware of this decision of the men, but presumably after Elder's knew of a proposed stopwork meeting, a notification purporting to be pursuant to the provisions of s. 28 of the Conciliation and Arbitration Act as amended, of a threatened stoppage on the part of storemen and packers, members of the Union, employed by Elder's under the terms of the Award, was given to the Deputy Industrial Registrar in Sydney of the Commission by the Employers' Federation of New South Wales of which Elder's was a member. (at p623)

5. On Tuesday, 19th November, at the commencement of work in Elder's No. 2 and No. 3 wool stores, the leaders of gangs refused to act in that capacity and said that they were available only for work as ordinary storemen and packers. Elder's thereupon dismissed them for refusing duty. The leaders of gangs who were at that time still working as such in Elder's No. 1 store were then asked to carry out the duties of leaders of gangs in the No. 2 and No. 3 stores in place of the men who had been dismissed. The leaders working in the No. 1 store refused to do this work and were thereupon dismissed for refusing duty. (at p623)

6. After the leaders of gangs had been dismissed for refusing duty, Elder's appointed some of its clerical staff to act as leaders of gangs, whereupon the ordinary storemen refused to work under the direction of the persons so appointed. Thereupon these storemen were dismissed for refusing duty. (at p623)

7. Thereafter, and presumably on the same day, Elder's requested the prosecutors to undertake to work its wool in its stores, it being urgent that the wool be prepared for the sale floor, sales being scheduled to commence in Elder's stores within a week. Apparently the prosecutors agreed to do this and thereupon in turn directed their workmen employed under the Award to go to Elder's stores and to work the wool there. The workmen of the prosecutors in turn refused to obey this direction and progressively they were dismissed. By the end of 19th November all the storemen, including the leaders of gangs, in all the stores of Elder's and of the prosecutors in Sydney had been dismissed either because they had refused to act as leaders of gangs or to work under people who had been appointed as leaders of gangs, or had refused to work in Elder's stores. (at p623)

8. A further notification was given during November 19th to the Deputy Industrial Registrar by the Employers' Federation bringing under notice "an industrial situation that could lead to an extremely serious stoppage of work on the part of storemen and packers, members of the Union", and requesting that a compulsory conference be summoned in order to prevent extension of the dispute. These two notifications, that of November 18th, and that of November 19th, were respectively given file numbers, C. 579 and C. 580 of 1963 in the records of the Commission. (at p623)

9. Mr. Commissioner Austin, on 20th November, at a time appointed for consideration of the notifications numbered 579 and 580, heard in Sydney a representative of the members of the Sydney Wool selling Brokers' Association and a representative of the New South Wales Branch of the Union and was told of the facts of the matter. (at p624)

10. It would appear from what was said on behalf of the Union before the Commissioner on that day that the men who had been dismissed complained that, whilst they realized that they had been dismissed, they had not been "paid off" properly in that in addition to the moneys they had in fact been paid at the time of dismissal, they ought to have been paid money for long service leave and for a week's wages in lieu of notice. This latter item was claimed because the men asserted that they had not been guilty of misconduct in refusing to "transfer", as the Union advocate put it, "from the employ of one wool-selling broker to work in the store of Elder Smith where they already knew there was a dispute". After each of the parties had put before him their point of view the Commissioner adjourned and the parties conferred, with the result that work was resumed at Elder's and at the stores of the prosecutors on 22nd November. The claims of the leaders of the gangs in Elder's stores for additional wages and a Christmas bonus do not appear to have been conceded, but at the time of the resumption of work it was understood between the representative of the prosecutors and the representative of the Union that notwithstanding the resumption of work "there remained outstanding the dispute about payment of a week's leave (sic)". (at p624)

11. On 11th December the secretary of the New South Wales Branch of the Union, in purported pursuance of s. 28 of the Act, notified the Deputy Industrial Registrar in Sydney of a dispute between members of the Union and certain employers respondent to the Award. The notification recited the dismissal of four named persons by four of the prosecutors as their respective employers. It also recited the engagement-termination clause of the award - cl. 9 - and concluded "It is now claimed that these employees were not guilty of misconduct in refusing to transfer and therefore were and are entitled to payment of one week's wages in lieu of notice, plus payment for the balance of the week in which they were dismissed". This notification was given the file number C. 1377 in the records of the Commission. (at p624)

12. When the matter of the Union's notification No. C. 1377 came before the Commissioner in Sydney on 3rd January, it was adjourned until the parties were ready to proceed, the representative of the employers taking the opportunity, however, to point out to the Commissioner and to the Union representative that on the resumption of the hearing he would be submitting that the matter did not come within the Commissioner's competence because it really called for the exercise of judicial powers which were not vested in the Commission. (at p625)

13. The matter was taken up again by the Commissioner on 13th April, when there appeared before him a representative of the Union and a representative of the prosecutors and of Elder's (though Elder's were not in fact involved in the matter numbered C. 1377). The employers took the stand that there had been no strike in the prosecutors' stores, that their men had been properly and summarily dismissed for refusing duty, their refusal being misconduct within the meaning of the relevant clause of the Award, and that they were not entitled to a week's notice before dismissal or to payment on dismissal of one week's wages in lieu of such notice. It was submitted that the notification which was before the Commissioner was really a complaint of a breach of the Award in that the employers had failed to pay a week's wages in lieu of notice, a matter which could not be dealt with by the Commissioner. In this connexion the Commissioner's attention was called to this Court's decisions in Reg. v. Gough; Ex parte Cairns Meat Export Co. Pty. Ltd. as then reported [1962] HCA 56; (1962) 36 ALJR 249 (now [1962] HCA 56; (1962) 108 CLR 343) and Reg. v. Gallagher ; Ex parte Aberdare Collieries Pty. Ltd. as then appearing in (1963) 18 Industrial Information Bulletin 633 (now (1963) 37 ALJR 40) . (at p625)

14. The Commissioner took time to consider the matters and made his orders and varied the Award on April 24th. In a reasoned judgment he said: - "The question to be decided now is: - Whether an order in settlement of disputes C. No. 579 of 1963 and C. No. 580 of 1963 and C. No. 1377 of 1963 should be made in favour of the claim submitted by the union or that I accept the submission of the respondents that the action taken by them conforms to rights they have under cl. 9 of the Wool Stores Award, or alternatively that the matter is one for the Commonwealth Industrial Court. (at p625)

15. I have given considerable attention to the submissions of the parties and circumstances related to disputes before the Commission from early November 1963 to the 17th January 1964, and have decided to finalize this claim by publishing an order based upon the dispute notifications herein mentioned. The issue is whether the employer required his employees to carry out a direction that was reasonable ; whether it was reasonable to direct them to take the place of other members of the union who had been dismissed by another firm in respect to an industrial issue. (at p626)

16. I have always regarded an engagement under the contract of employment clause of an award as being a contract binding the employee concerned and the particular employer in respect to premises of the employer. If that is not so it is not hard to imagine the industrial turmoil, even conditions much more serious, if the action by the Wool Selling Companies became a general condition in industry. If employers were to hastily make agreements to supply labour to an employer who has industrial trouble it would result in industrial turmoil of a major character. (at p626)

17. Repeating what I have already said, I have given this dispute considerable attention and have decided that my function under the Act is to prevent and settle industrial disputes, either threatened impending and probable or a situation likely to give rise to an industrial matter which extends or could extend beyond the limits of one State." (at p626)

18. He thought that whilst Elder's had acted properly in dismissing its leaders and storemen, the prosecutors had acted provocatively in directing their employees to "transfer to some other employer" and to perform the work of the employees of another wool-selling store who had been summarily dismissed as the result of an industrial dispute. He therefore considered that the employees of the prosecutors had been unreasonably dismissed and he proceeded: "I intend to settle this dispute by an order directing the abovenamed employers to pay the employees dismissed on 19th November 1963, the wages they would have received during and up until the time they resumed their employment, and a provision whereby an employee shall not be required to perform work for any other employer than the employer who has engaged him. The order will operate as on and from 19th November 1963." (at p626)

19. The validity of so much of the order of the Commissioner as expressly varied the award retrospectively by importing a proviso into the termination of engagement clause - cl. 9, as on and from 19th November 1963, is not challenged in the present proceedings but the prosecutors do not concede its validity. The retrospective variation of the Award was expressed by the Commissioner as follows: "Provided that the refusal of a weekly hand to transfer his employment to another employer shall not constitute misconduct under the terms of this subclause." The employers point out, as I think, rightly, that as expressed the variation does not achieve anything. There had not been, and under the terms of the Award there could not lawfully have been, a direction by the prosecutors to their employees that they become the employees of some other person. Whilst I can quite understand the scope for misunderstanding of, and for industrial resentment at, the course taken by the prosecutors, what they did was not to require a change in the identity of the employer but to require their employees as part of their continuing employment with the prosecutors to work the wool in Elder's stores, the prosecutors having contracted with Elder's so to do. (at p627)

20. It is plain enough from the facts of the case that what remained in dispute between the prosecutors and the Union after resumption of work on November 22nd was whether or not the employees of the prosecutors were entitled, as a matter of legal right, under the terms of the Award and in the circumstances, to payment of some sum of money because they had been summarily dismissed. The terms of the notification which became No. C.1377 in the records of the Commission, pursue this claim though extending the money sum from one week's wages to what in substance was eight days' wages. In reality the claim was for damages for wrongful dismissal - wrongful because in breach of the Award. (at p627)

21. That the assertion and denial of this claim did not constitute an industrial dispute within the meaning of the Commonwealth Conciliation and Arbitration Act cannot be doubted, and it is beyond question that the Commissioner had no jurisdiction to determine the legal claim to wages or for wrongful dismissal or for breach of the Award in whatever form the claim of legal right may have been cast. (at p627)

22. But it was said that apart from the claim for wages there was a dispute as to whether the employers ought under the Award to have the right to do what the prosecutors did in this instance in directing their employees to work in Elder's stores, and that that dispute was likely as at 19th November 1963 and also as at 24th April 1964, to extend into other States. (at p627)

23. I have examined closely the record of the discussions before the Commissioner and I can find no evidence of any such dispute. There was no assertion, express or implied, on behalf of the Union that the Award should be varied. The Union did assert that the conduct of the prosecutors in asking the men "to scab" on their fellow unionists was unreasonable and that a refusal to yield to such a request was not misconduct within the terms of the Award entitling the prosecutors to summarily dismiss the men. But this did not amount to an industrial dispute as to what ought to be the relevant terms of employment. It was a claim that the Award did not justify the prosecutors' conduct. (at p627)

24. Nor do I find in the material placed before the Court any warrant for the conclusion that any dispute between the Union and the prosecutors at this time was likely to spread inter-State. The Commissioner seems to have thought that if employers generally followed the course taken in this matter by the prosecutors widespread industrial unrest might ensue. But even if that view were correct, it did not justify the conclusion that the existing dispute was likely to extend inter-State. (at p628)

25. Counsel for the Union, in the alternative, sought to support the challenged orders by submitting that they were ancillary to or merely consequential upon the retrospective variation of the Award to which I have referred. He claimed that the original log of claims and its refusal had given rise in 1959 to an inter-State dispute wide enough in ambit to justify an award in the terms of the Commissioner's variation, and that therefore, without the intervention of any fresh or further inter-State dispute, the retrospective variation was valid. This meant, he said, that by reason of the proviso inserted by the variation retrospectively the summary dismissal of the men on November 19th was wrongful and that, had it not been for the challenged orders of the Commissioner, that dismissal would have given rise to a legal claim for a week's wages. But, so the argument ran, these orders constituted an ancillary and particular provision, also operating retrospectively, to cover the situation which had arisen in Sydney. As these orders gave the employees only three days' wages and not one week's wages, as it was said would have been their right under the varied Award, the Commissioner by these orders made a qualified variation of the Award applicable only to the prosecutors and their employees. (at p628)

26. However, this attempt to support the Commission's orders in my opinion fails for several reasons. Let it be assumed that the variation was within the ambit of the original dispute of 1959 - a matter by no means clear or certain. Yet the terms of the variation, though retrospective, did not relevantly alter the Award. The question whether or not the prosecutors were entitled summarily to dismiss their storemen employees must receive the same answer under the varied award as it would have received under the original award ; and in each case the question would be one as to legal right. If the answer should be that the employees were wrongly dismissed, the damages to which they would become entitled would depend on whether or not they remained unemployed for any, and if so, for what time. The Award gave the employer an alternative of summary dismissal with the payment of one week's pay, or dismissal upon one week's notice where misconduct did not exist, but this would not entitle a dismissed employee to a week's pay. He would be entitled only to the wages he in fact lost up to a maximum of one week's wages. (at p628)

27. An order for payment of three day's pay and for the granting of privileges under the Award as if the employment had not been terminated was not an industrial award ancillary to or consequential upon the retrospective variation. It was, in truth, an attempt to determine the legal rights of the dismissed employees which it was thought would flow from the operation of the retrospective award. Assuming power to vary the Award retrospectively in the manner expressed by the Commissioner, there was yet no jurisdiction in him to enforce the retrospective variation by an order for payment of wages and for the granting of other benefits of the Award thought to result from that retrospective variation. That the orders were made in respect of specific employers, the prosecutors, for the benefit of specific employees - all who had been dismissed by the prosecutors on 19th November - underlines the fact that the orders were made in an attempted enforcement of legal rights. The authorities to which the Commissioner was referred on 13th April, viz. Reg. v. Gough ; Ex parte Cairns Meat Export Co. Pty. Ltd. [1962] HCA 56; (1962) 108 CLR 343 and Reg. v. Gallagher ; Ex parte Aberdare Collieries Pty. Ltd. (1963) 37 ALJR 40 , clearly indicate his lack of jurisdiction to make the orders in question. (at p629)

28. In my opinion the order nisi should be made absolute. (at p629)

MCTIERNAN J. I agree in the reasons and the judgment of the Chief Justice. (at p629)

KITTO J. I am of the same opinion and have nothing to add. (at p629)

TAYLOR J. I agree. (at p629)

OWEN J. For the reasons given by the Chief Justice I agree that the order nisi should be made absolute. (at p629)

ORDER

Order Absolute.

Costs including costs of the order nisi to be paid by the respondent Union.