R v Commonwealth Conciliation & Arbitration Commission; Ex parte Melbourne & Metropolitan Tramways Board [1966] HCA 32; (1966) 115 CLR 443 (18 May 1966)

HIGH COURT OF AUSTRALIA

THE QUEEN v. COMMONWEALTH CONCILIATION AND ARBITRATION COMMISSION; Ex parte
MELBOURNE AND METROPOLITAN TRAMWAYS BOARD [1966] HCA 32; (1966) 115 CLR 443

Conciliation and Arbitration (Cth)

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

CATCHWORDS

Conciliation and Arbitration (Cth) - Industrial dispute - Industrial matter - What constitutes - Relationship of employer and employee not directly involved - Demand that no two-man tram or bus service shall be converted to one-man operation - Conciliation and Arbitration Act 1904-1964 (Cth).

HEARING

Sydney, 1966, April 21, 22;
Melbourne, 1966, May 18. 18:5:1966
PROHIBITION.

DECISION

May 18.
The following written judgments were delivered: -
BARWICK C.J. This is an application to make absolute a rule nisi for trades union in connexion with an interim award made by the commissioner in purported settlement of what he had found to be an industrial dispute extending beyond the limits of one State. The Melbourne and Metropolitan Tramways Board (the prosecutor) in support of the application submits principally that there was no such industrial dispute. (at p446)

2. The relevant facts are few. The respondent, The Australian Tramway and Motor Omnibus Employees' Association (the union) had on an earlier occasion endeavoured to create an inter-State industrial dispute with transport authorities in more than one State with a view to obtaining an award to prevent these authorities requiring the union's members to work a tram or bus without the assistance of a conductor. This attempt led to proceedings in this Court which are reported[1965] HCA 50; , (1965) 113 CLR 228 Following these proceedings the union served on the prosecutor, the Commissioner for Government Transport, the Adelaide Municipal Tramways Trust, the Commissioner for Motor Transport of New South Wales, and the Metropolitan Transport Trust of Tasmania, the transport authorities with whom it had earlier attempted to create a dispute, a log of claims covered by a letter of demand, dated 7th January 1966. The letter of demand was in the following terms: "The Australian Executive of this Association met on the 21st September, 1965, and directed me to serve a letter of demand on employers in every State in which Awards of the Commonwealth Conciliation and Arbitration Act cover members of this Association for an Award covering the conditions of one-man bus operators. This decision of the Australian Executive followed resolutions carried by meetings of members of the above Association calling upon the Federal Officers to apply for an Award for one-man bus operators. The Australian Tramway and Motor Omnibus Employees' Association therefore demands of you that you agree to the wages and conditions set out in the log of claims enclosed with this letter and unless you comply with this demand within seven days of the date hereof, the Union will take appropriate steps under the Conciliation and Arbitration Act." The accompanying log of claims claimed wages and conditions for financial members of the union in respect of a single classification - "one-man bus operator". Whilst this description was not the subject of express definition, it is plain from the terms of the log of claims that it referred to bus drivers required to drive "one-man vehicles" (see cl. 2 of the log of claims). (at p447)

3. The log, having covered in great detail the conditions of work demanded for "one-man bus operator", concluded with cl. 28 in the following terms:

"28. One-Man Operation

1. No two-man tram or bus service shall be converted to one-man operation.
2. One-man operation shall be converted to two-man operation when the total

number of passengers carried in a shift, in any one day, exceeds 200." (at p447)

4. None of the said transport authorities acceded to the union's demands. Upon the notification by the union pursuant to s. 28 of the Conciliation and Arbitration Act 1904-1964 (the Act) of the existence of an industrial dispute, claimed to arise out of the service of the said letter of demand and log of claims, the commissioner, after hearing the parties, held on 3rd February 1966 that an industrial dispute within the meaning of the Act existed between the union and the above-named four transport authorities "concerning the demands made in the log of claims served on such employers" by the union on or about 7th January 1966. Thereafter, a further hearing took place before the commissioner, in which the union sought only an interim award in terms submitted by it. In the result, the commissioner acceded to the union's request and made an award in the following terms:

"Title

This award shall be known as 'The Australian Tramway and Omnibus Interim Award, 1966'.

Parties Bound

This award shall be binding upon The Australian Tramway and Motor Omnibus Employees' Association and members thereof and upon the Commissioner for Government Transport New South Wales, the Melbourne and Metropolitan Tramways Board and the Municipal Tramways Trust, Adelaide.

One-Man Operation

Notwithstanding anything contained in the awards known as 'The New South Wales Government Omnibus Traffic Employees Award, 1963'; 'The Tramways Employees (Melbourne) Interim Award, 1958'; 'The South Australian Tramway and Omnibus Award, 1963'; and 'The Tramways and Motor Omnibus Employees Traffic Margins Award, 1965':

1. No respondent employer shall require an employee being a financial member of The Australian Tramway and Motor Omnibus Employees' Association to operate by himself a tramcar or omnibus service on a route on which on or before the date of this award tramcars or omnibuses had been operated by two employees. Provided that this award shall not affect the right of the respondent employers to require such an employee to operate by himself a tramcar or omnibus at a time and in a locality where an omnibus or tramcar was so operated before the date of this award.

2. (a) No employer respondent shall engage in any lock-out or do any act or thing in the nature of a lock-out on account of any provision in this award.
(b) No employer respondent to this award shall in any way, directly or indirectly, be a party to or concerned in any ban, limitation or restriction upon the performance or offering of work in accordance with the awards referred to herein and this award.
(c) A respondent shall be deemed to commit a new and separate breach of the above sub-clause on each and every day on which it is directly or indirectly a party to such ban, limitation or restriction. (d) Until further order this clause shall apply only to the Melbourne and Metropolitan Tramways Board.

And the Commission doth hereby further order that clause I of this award shall take effect on and from the twenty-fourth day of March, 1966; clause 2 shall take effect on and from the fourth day of April, 1966, and the award shall remain in force for a period of three months." (at p449)

5. From the evidence before the Court, it appears that all the routes of the bus transport system conducted by the prosecutor, with the exception of two, are served by one-man buses, these being of smaller passenger capacity than two-man buses, and being specially equipped to be operated by one man, i.e. by a driver without the assistance of a conductor. It would appear that at times, such as the peak hours of traffic, a conductor is engaged on these buses, at least on some of the said routes. The two exceptional routes which are operated by two-man buses are spoken of in the evidence as the Bullen - Garden City route and the Fishermen's Bend - City route. The depots from which these routes were worked were the Port Melbourne and North Fitzroy depots of the prosecutor. (at p449)

6. Between 2nd and 9th days of December 1965, following upon its earlier decision of 12th February 1965, the prosecutor decided that as from 27th December 1965 the services on these two routes should be converted to one-man bus services. Prior to 27th December the prosecutor took all the necessary steps to effectuate its decision, including the withdrawal from the said depots of two-man buses and their replacement in the depots by a sufficient number of one-man buses to run the said services. (at p449)

7. On 15th December members of the union employed by the prosecutor at its said depots held a stop work meeting and on 21st December 1965 all members of the union employed by the prosecutor as bus drivers or conductors on the said two routes went on strike and were still on strike at the date of the making of the interim award. (at p450)

8. There is, in my opinion, no evidence whatever before the Court of the existence of any relevant dispute between the union and the transport authorities in more than one State unless it be found in the service of the union's written demand with its accompanying log of claims and the failure of the transport authorities to accede to it. (at p450)

9. The interim award is in purported settlement of a dispute said thus to arise and relates to cl. 28 of the log of claims. Any dispute therefore which may exist as to other parts of the log of claims is not available to support that award. The initial question for decision is whether the demand of the union contained in its letter of 7th May and cl. 28 of the log of claims, upon the failure of the transport authorities to agree to it, gave rise to an industrial dispute extending beyond the limits of one State. (at p450)

10. In the former case between these parties, I pointed out certain requirements of a written demand if it is to form part of the proof of the existence of an industrial dispute: see p. 239 of the report. Though there has been a good deal of discussion upon the hearing of this application as to the meaning of the union's letter and cl. 28 of the log, I do not regard their terms as ambiguous so as to fail to convey with the requiste certainty what is demanded. But the question remains whether what is demanded is an industrial demand within the meaning of the Act; is it a demand for something which is or directly concerns an industrial matter within the Act. If it is not, then clearly no relevant dispute arises upon a failure or refusal to accede to it. (at p450)

11. To create an industrial dispute, the relationship of employer and employee must be directly involved in the demand. Demands which in themselves do not do so will not be industrial in the relevant sense, however much the relationship of employer and employee may be indirectly affected by the result of acceptance or refusal of the demand: see Clancy v. Butchers' Shop Employes Union [1904] HCA 9; (1904) 1 CLR 181, at pp 202, 203, 206-207; R. v. Kelly; Ex parte State of Victoria [1950] HCA 7; (1950) 81 CLR 64, at pp 84, 85; Reg v Findlay; Ex parte Commonwealth Steamship Owners' Association, per Dixon C.J. [1953] HCA 81; (1954) 90 CLR 621, at pp 629-630 (at p450)

12. It is, I think, plain that in terms the subject matter of the demand in cl. 28 of the log is a "service", a transport service. Such a service is a complex involving a route, transport vehicles, a frequency or timetable and staff to operate both mechanical and clerical aspects. All the elements are integrated purposefully to serve, or provide a service for, the public. It is such a complex which, in my opinion, is the subject of the union's demand. Claude 28 postulates that such a service may be of at least two different kinds. It requires the maintenance of an existing service: that it be not converted or changed in kind. (at p451)

13. Of course, if this demand were acceded to, industrial results may follow. Employees may not be required to work without conductor assistance on the vehicles used in the unconverted services for the reason that the two-man buses used to operate the services would, in general, be insusceptible or at least in a practical sense unsuitable for operation by a driver only. The vehicles retained in operation in the service would not, in general, permit of the employment of only one man to work them. But these consequences, in my opinion, do not make or characterize the nature of the demand itself. (at p451)

14. Counsel for the union submitted that the demand meant and would convey nothing more or less to the transport authorities to whom it was addressed than what is covered by cl. 1 of the interim award. He claimed that the demand, properly understood, merely required that whatever service arrangements the prosecutor and the other transport authorities inaugurated or maintained, no employee member of the union should be required to work a bus alone. He submitted, in substance, that the clause should be read, "the operation of a bus service shall not be changed from two-man operation to one-man operation"; and that so read it dealt only with what should be required of an employee in his employment. (at p451)

15. But, in my opinion, the clause is just not capable of being so read, and, as I shall mention later, even if so read, may not deal with what an employee shal do or be required to do in the work provided by the employer. The clause clearly demands that a service of a particular kind shall not be converted into a service of another kind. Such a demand does not deal, in my opinion, with a matter "pertaining to the relations of the employer and the employee" within the meaning of the Act, the quoted words of the definition of "industrial matters" in the Act setting the perimeter of the area which falls within the description of an industrial matter. Whilst it is a truism that both industrial disputes and awards made in their settlement may consequentially have an impact upon the management of an enterprise and upon otherwise unfettered managerial discretions, the management of the enterprise is not itself a subject matter of industrial dispute. What is sought to be done in this case is to make a demand which directly concerns only the management of the transport system. The subject matter of the demand is the management of the transport system. This, in my opinion, is not an industrial demand. (at p452)

16. In so reading the demand, I am not submitting it to any narrow or pedantic interpretation. It seems to me quite evident, bearing in mind the earlier proceedings between the parties that, being desirous of protecting its members from being required to operate a bus upon a transport service without the assistance of a conductor, the union sought on this occasion to achieve its objective by preventing the conversion of the service by the transport authority. Such an operation, as has been seen, would involve the removal of the existing vehicles and the furnishing of the depots with vehicles capable of one-man operation. Clause 28 precisely expresses that intention. It is not without significance that cl.28 is in a log of claims otherwise dealing with terms and conditions of employment of one-man bus operators. The demand is that, even if the prosecutor and the other transport authorities are willing to accord these conditions, none the less the specified transport services are not to be converted. There is a world of difference between a demand that no one-man buses shall be used to operate a service and a demand that a conductor as well as a driver shall always be employed upon buses constructed for one-man operation. It is clear to my mind that the union did not wish to make a demand of the latter kind and sought to avoid such a situation by making a demand which in substance was of the former kind. (at p452)

17. Accordingly, I am of opinion that the demand of the union, not being as to an industrial matter, did not give rise to an industrial dispute. It follows that there was no industrial dispute extending beyond the limits of one State and that the interim award is insupportable. (at p452)

18. I may add that I am far from satisfied that a demand that a service operated by two men shall not be changed to operation by one man directly involves "the relationship of employer and employee" within the meaning of the Act, however much the consequence of acceding to it or of refusing it may affect conditions under which an employee may be required to work in the employer's service. Such a demand to my mind is different in kind from a demand that an employee driver of a bus shall when working on a bus be assisted by a conductor. The former, it seems to me, deals only with the nature of the work which the employer shall provide, whilst the latter does deal with what an employee in doing work which is provided shall be required to do in his employment. (at p452)

19. There being no industrial dispute arising out of the demand contained in cl. 28 of the log, cl. 1 of the interim award cannot be sustained and, in my opinion, neither can any part of cl. 2 which, in my opinion, is no more than ancillary to cl. 1. (at p453)

20. It was submitted for the union that, though cl. 1 of the award fell, cl. 2 could stand in so far as it applied to the original awards which cl. 1 purported to operate to vary, or in part to supersede. This submission depended upon a construction of cl. 2 (b) which severed the clause so as to eliminate therefrom any reference to the interim award. But, in my opinion, the clause is insusceptible of any such construction. The reference in cl. 2 (b) to the earlier awards is not a reference to them as independent of the interim award. It is a reference to them as affected by the interim award. It is, in my opinion, impossible to remove from the clause the reference to "this award". Consequently, cl. 2 (b) must in whole fall with cl. 1 of the interim award. (at p453)

21. Being of the clear opinion that for these reasons the rule nisi should be made absolute, there is no need for me to discuss other substantial questions which arose in the course of the argument of this matter, such as the question whether in any case there was here in reality anything more than a purely local dispute involving only the prosecutor and the union in respect of the said two routes, and the question whether in any event the commissioner had power in the circumstances of the case to make cl. 2 of the interim award, if that clause could be construed as referring independently to the earlier awards. (at p453)

22. In my opinion, the rule nisi should be made absolute. (at p453)

MCTIERNAN J. I am unable to place a construction on the words of cl. 28 of the log of claims which would make it a demand as to any matter which is "an industrial matter" as defined by s. 4 of the Conciliation and Arbitration Act 1904-1964. I agree that the order nisi should be made absolute. (at p453)

TAYLOR AND MENZIES JJ. This is the return of an order nisi for prohibition to restrain further proceedings upon the Australian Tramway and Omnibus Interim Award, 1966 made by Commissioner J. P. Horan, Esq. on 23rd March 1966. This award, binding The Australian Tramway and Motor Omnibus Employees' Association and members thereof and the Commissioner for Government Transport, New South Wales, the Melbourne and Metropolitan Tramways Board and the Municipal Tramways Trust, Adelaide, provides as follows:

"Notwithstanding anything contained in the awards known as 'The New South Wales Government Omnibus Traffic Employees Award, 1963'; 'The Tramways Employees (Melbourne) Interim Award, 1958'; 'The South Australian Tramway and Omnibus Award, 1963'; and 'The Tramways and Motor Omnibus Employees Traffic Margins Award, 1965':

1. No respondent employer shall require an employee being a financial member of The Australian Tramway and Motor Omnibus Employees' Association to operate by himself a tramcar or omnibus service on a route on which on or before the date of this award tramcars or omnibuses had been operated by two employees. Provided that this award shall not affect the right of the respondent employers to require such an employee to operate by himself a tramcar or omnibus at a time and in a locality where an omnibus or tramcar was so operated before the date of this award.
2. (a) No employer respondent shall engage in any lock-out or do any act or thing in the nature of a lock-out on account of any provision in this award.
(b) No employer respondent to this award shall in any way, directly or indirectly, be a party to or concerned in any ban, limitation or restriction upon the performance or offering of work in accordance with the awards referred to herein and this award.
(c) A respondent shall be deemed to commit a new and separate breach of the above sub-clause on each and every day on which it is directly or indirectly a party to such ban, limitation or restriction.
(d) Until further order this clause shall apply only to the Melbourne and Metropolital Tramways Board." (at p454)

2. The basic objection to this award is that it was not made to prevent or settle an industrial dispute. That it was made to settle a dispute between the association and the Melbourne and Metropolitan Tramways Board and other employers was not in issue, but the prosecutor's contention was that the dispute which existed was not an industrial dispute. The dispute in question occurred when the employers did not accept the following demand of the association made in a more general log of claims dated 7th January 1966:

"28. One-Man Operation

1. No two-man tram or bus service shall be converted to one-man operation.
2. One-man operation shall be converted to two-man operation when the total

number of passengers carried in a shift, in any one day, exceeds 200." (at p454)

3. Although the log of claims covered matters other than the demands embodied in cl. 28, no attention was directed by the parties to the dispute or by the commissioner to any matter other than that appearing in c. 28 (1). On 3rd February 1966 the commissioner found that a "genuine inter-State industrial dispute exists" and referred the parties into conference with Mr. Conciliator Lyttleton "for the purpose of deciding by conciliation, if possible, the terms of an award to be made in settlement of this dispute". On 22nd March the commissioner, at a hearing at which the parties were represented, opened proceedings by saying: "I understand, gentlemen, that there was a conference before Conciliator Lyttleton last Thursday and a request was made by the association to bring this matter with respect to one clause only of the log before the commission at this time. Is that correct?" In replying affirmatively to this question, Mr. Murphy, for the association, requested the commission to exercise its powers under s. 41 (1) (b) of the Commonwealth Conciliation and Arbitration Act, and to make an award in terms of cl. 28 (1) of the association's log or "in terms different to cl. 28 (1) but still within the area of the dispute demonstrated by the demand and the refusal or failure to agree". The award now in question was made by the commissioner after he had heard evidence and argument relating to the subject matter of the request so made to him. (at p455)

4. Before this Court it was suggested that the award could be upheld as an exercise of power to prevent an impending industrial dispute extending beyond the limits of one State relating to the operation of trams and buses by one man instead of by two men, but we think that we cannot look otherwise than at the jurisdictional basis upon which the commissioner made the interim award - that is, the refusal or failure to agree to the demand in cl. 28 (1) of the log. Apart from other weighty objections to this Court's making affirmative findings which the commissioner did not make to endow him with jurisdiction, a decisive objection to acceding to Mr. Murphy's invitation is that there is no material for finding any dispute extending beyond the limits of one State other than the one found by the commissioner. We are, therefore, concerned with a paper dispute and it is necessary to ascertain what was the dispute which, in accordance with the prevailing theory, arose out of the refusal or failure to agree to the demand contained in cl. 28 (1) of the log. (at p455)

5. The vital question, therefore, is simply whether the non-acceptance of cl. 28 (1) of the log created an industrial dispute. At the hearing before us, Mr. Young, for the Melbourne and Metropolitan Tramways Board, stated that if it did, then there was sufficient to support the commissioner's conclusion that it extended beyond the limits of one State. (at p456)

6. When cl. 28 (1) is examined in the context of the log of claims as a whole, it appears as a demand that no service being provided by an authority operated by two-man trams or buses shall be converted to a service by trams or buses operated by one man. The context of the log does indicate that a "one-man vehicle" is different in kind from a "two-man vehicle" but we prefer not to base our conclusion upon the difference that doubtlessly exists between a vehicle adapted for operation by one man and a vehicle ordinarily operated by two men, or upon the evidence that a one-man bus is a thirty-one or thirty-two seater whereas a two-man bus is a forty-one seater. It is sufficient for us to say that a demand in terms that an authority shall not provide a service to the public different from that which it is providing is not a demand which can give rise to an industrial dispute. The service to be provided to the public is not in itself a matter "pertaining to the relations of employers and employees". In our opinion, R. v. Kelly; Ex parte State of Victoria [1950] HCA 7; (1950) 81 CLR 64 is an authority governing this case. In that case, in relation to a dispute concerning the times for opening and closing butchers' shops, the Court said: "The term 'industrial matters' is defined by s. 4 as meaning 'all matters pertaining to the relations of employers and employees'. The definition goes on to provide that the term includes a number of specified matters, but the subject matter of cl. 16A cannot be brought within any of these, unless perhaps it be '(a) matters or things affecting or relating to work done or to be done'. We do not think that the subject matter (the closing of shops as distinct from the work of employees in shops) is a 'matter pertaining to the relations of employers and employees'. The words 'pertaining to' mean 'belonging to' or 'within the sphere of', and the expression 'the relations of employers and employees' must refer to the relation of an employer as employer with an employee as employee. The time at which a shopkeeper (who may or may not employ anybody) may open and close his shop is not a 'matter' which belongs to or is within the sphere of the relation of that shopkeeper as employer with any person as employee" (1950) 81 CLR, at p 84 Then, after pointing out that the possibility that a dispute might have indirect consequences and remote effects upon the relations of employers and employees would not suffice to make it an industrial dispute, the Court quoted with approval the following observations of O'Connor J. in Clancy v. Butchers' Shop Employes Union (1904) 1 CLR, at p 207: "If once we begin to introduce and include in its scope" (i.e. the scope of the Act) "matters indirectly affecting work in the industry, it becomes very difficult to draw any line so as to prevent the power of the Arbitration Court from being extended to the regulation and control of businesses and industries in every part". The Court continued as follows (1950) 81 CLR, at p 85: "In the case of Commonwealth legislation with respect to the same subject matter any such extension would seem inevitably to involve an excess of the power conferred by s. 51 (XXXV.) of the Constitution. A matter does not become an 'industrial matter' or the subject of an 'industrial dispute' simply because it is a matter with respect to which persons who are employers and employees are disputing." (at p457)

7. Reliance was placed by counsel for the association upon observations made in the earlier decision in Reg. v. Commonwealth Conciliation and Arbitration Commission; Ex parte Melbourne and Metropolitan Tramways Board [1965] HCA 50; (1965) 113 CLR 228, but, in our opinion, they have no bearing upon the problem now before us. (at p457)

8. Our decision that the interim award was not made in settlement of an industrial dispute makes it unnecessary for us to consider the other grounds of the order nisi and, in particular, whether or not, in the circumstances, the commissioner had power to make the orders comprised in par. 2 (a), (b) and (c) of the award. (at p457)

9. In our opinion, the order nisi should be made absolute. (at p457)

OWEN J. I agree with the Chief Justice that the order should be made absolute. (at p457)

ORDER

Order that the order nisi for prohibition made herein the 15th day of April 1966 be made absolute and the respondents and each of them prohibited from further proceeding with or upon the Australian Tramway and Omnibus Interim Award, 1966.

Order that the respondent, The Australian Tramway and Motor Omnibus Employees' Association, pay the prosecutor's costs of the application for the order nisi and of this application to make the same absolute.