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High Court of Australia |
THE QUEEN v. COHEN; Ex parte ATTORNEY-GENERAL (Q.) [1981] HCA 66; (1981) 157 CLR 331
Industrial Law (Cth)
High Court of Australia
Gibbs C.J.(1), Murphy(2), Aickin(3), Wilson(4) and Brennan(5) JJ.
CATCHWORDS
Industrial Law (Cth) - Conciliation and Arbitration Commission - Jurisdiction - Log of claims served on employer - None of employer's workers member of serving union - Non-compliance with demands - Whether genuine dispute - Union's motive to obtain greater coverage of members - Relevance to existence of dispute - Onus of proof about dispute - The Constitution (63 & 64 Vict. c. 12), s. 51(xxxv) - Conciliation and Arbitration Act 1904 (Cth), s. 4(1) - "Industrial dispute".
HEARING
1981, April 7; December 4. 4:12:1981DECISION
December 4.2. On 10 July 1979 the A.I.E.U. served a log of claims, containing demands as to matters some of which were industrial, on statutory authorities in various States concerned with the business of insurance, including the Board. On 19 September 1979 the Commission found that an industrial dispute existed between the A.I.E.U. and authorities in a number of States. The Board, however, sought a finding that it was not a party to the dispute. Proceedings commenced before the Commission on 26 November 1979 and on that day, after the Deputy President had found that the persons employed in the office of the Board were employees of the Crown, the log was served on the Crown by delivering a copy to an officer of the Crown Solicitor for the State of Queensland. Neither the Board nor the Crown has complied with the demands in the log. The proceedings before the Commission extended over another four days, and after hearing a considerable body of evidence the Deputy President found that an industrial dispute exists between the A.I.E.U. and the Board, and that the matters in dispute are those claimed in the log which relate to industrial matters. It is not clear why the Deputy President found that the dispute was with the Board, when, according to her earlier finding, the employer was not the Board but the Crown. However, although one of the grounds in the order nisi refers to this circumstance, nothing has been made of it in argument before us. Perhaps it is regarded as a technical slip, capable of correction in the Commission itself. However, only one ground was argued before us in support of the application, and that was that no real and genuine dispute had been created by the service of the log on the Board and on the Crown and by their non-compliance with the demands contained in the log. (at p333)
3. The evidence revealed that at the date of the hearing there were 344 officers employed in the office of the Board. Of these, 341 were members of the Queensland State Service Union of Employees ("Q.S.S.U.E."), and three were members of other unions. None was a member of the A.I.E.U. The salaries and conditions of these employees were regulated by awards of the Queensland Industrial Commission; there was no relevant award or agreement of the Commonwealth Commission. (at p333)
4. It appears that the A.I.E.U. (then called the Australian Insurance Staffs
Federation) had in 1955 served a log of claims on insurance
companies in
various States, and on S.G.I.O., and had sought to include S.G.I.O. as
respondent to any award that it might obtain,
but Mr. Commissioner Chambers
held that it would be more satisfactory that the employees of S.G.I.O. should
continue to be governed
by the awards applying to State public servants, and
that he should exercise his discretion by refraining from binding the State
of
Queensland by the federal award. In 1975 the Australian Insurance Staffs
Federation served another log on S.G.I.O. The matter
came before Mr.
Commissioner Paine, and objection was taken on behalf of S.G.I.O. that no
dispute existed. The Commissioner made
no finding of a dispute with S.G.I.O.
or with the Queensland Crown, and the Australian Insurance Staffs Federation
did not proceed
further against S.G.I.O. However, in the same year, the State
Public Services Federation ("S.P.S.F.") applied for registration under
the
Concillation and Arbitration Act 1904 (Cth), as amended, ("the Act"), as an
organization of employees. The A.I.E.U. objected
to the application, and
eventually, on 2 June 1976, and agreement was reached between these two
unions, which included the following
paragraph:
"The applicant (i.e., S.P.S.F.) while it has at this point
applied to geographically exclude the State of Queensland,
specifically notes that the employees of the State Government
Insurance Office of the State of Queensland would also
exclusively be within the eligibility rule of the objector
(i.e., A.I.E.U.) and in the event of registration (if
granted) notes that as a prior condition to such registration
it would not in the event of an application being later made
to include the State of Queensland within the geographical
coverage of the applicant to in any way disturb that
situation." (at p334)
5. When the eligibility clause of S.P.S.F. was drawn, the employees of the
Crown in right of the State of Queensland and of statutory
bodies representing
the Crown in right of that State were expressly excluded. (at p334)
6. In June 1979 S.P.S.F. published an advertisement giving notice that it had
made application under the Act for consent to an alteration
of its rules
relating to the conditions of eligibility for membership. Although the
amendment does not appear to have been directed
to the position of employees
of the Queensland Crown, A.I.E.U. was advised by its solicitors that it should
lodge an objection to
the application "if only to have repeated and
re-recorded the agreement reached" between A.I.E.U. and S.P.S.F. when
S.P.S.F. first
sought registration. A notice of objection was lodged on 6 July
1979. On 8 August 1979 the solicitors for A.I.E.U. wrote to the
Secretary of
S.P.S.F., saying that A.I.E.U. "would be prepared to settle its objection in
this matter on the basis that the agreement
reached between that Union and
your organization . . . be repeated and recorded in transcript and in the
Registrar's decision".
These statements do not describe with complete clarity
the intentions of A.I.E.U. The original agreement with S.P.S.F. referred
only
to employees of S.G.I.O. Some of these employees - those concerned with
workers' compensation - had, so A.I.E.U. thought, become
employees of the
Board. A.I.E.U. was concerned that the agreement might not apply to them, and
Mr. McLeod, the Federal Secretary
of A.I.E.U., gave evidence before the
Commission that the sole purpose of the objection was to persuade S.P.S.F. to
include them
in the agreement. By this time the log had been served on the
Board. On 29 August 1979 Mr. Langmead, an officer of A.I.E.U., rang
Mr.
Wallace, the Secretary of Q.S.S.U.E., and told him that A.I.E.U. had been
advised to lodge a log of claims because the agreement
with S.P.S.F. did not
cover the officers of the Board who had left S.G.I.O.; he added that it was
not intended to proceed with the
claim or to cover employees of the Board at
that time, and that they were prepared to give an agreement to the Commission
to this
effect. On 30 August 1979 Mr. McLeod sent a letter to Mr. Wallace in
the following terms:
"We confirm the advice given in a telephone discussion with
Mr. Langmead of this office and yourself, to the effect that
this Union will not seek to proceed in any respect at this
stage against the Workers' Compensation Board of Queensland
in relation to the log of claims served on 10 July 1979, but
will ask that the question of the Board's status as a party
to a dispute be reserved.
Our intention is to preserve our rights of Industrial
coverage in connection with an agreement between the State
Public Services Federation and this Union, which is contained
within the decision of the Industrial Registrar when that
organisation achieved registration. We attach a copy of the
relevant extract from that decision.
We have received legal advice that the amending legislation
establishing the Board as the monopoly insurer for workers'
compensation may arguably take the Board out of the ambit of
that agreement and accordingly wish to restate our position.
We will be advising Commissioner Cohen of our position and
our intention not to proceed when the matter is heard on 19
September 1979." (at p335)
7. On 31 August 1979, Mr. McLeod wrote to the Chief Executive Officer of the
Queensland Public Service Board in similar terms.
Mr. Langmead, who drafted
the letters, said that although A.I.E.U. did not want to proceed at that
stage, it was intended to proceed
at some stage. He said that the purpose of
the proceedings was to gain coverage and an award for the employees of the
Board. (at
p335)
8. On 7 September 1979 the solicitor for A.I.E.U. wrote to S.P.S.F. stating that, before it would be prepared to withdraw its objection to the application lodged by S.P.S.F., it would wish to extend the agreement so that S.P.S.F. acknowledged that the employees of the Board, as well as those of S.G.I.O., would exclusively be within the eligibility rule of A.I.E.U. (at p336)
9. At the time of the hearing about 1,400-1,500 persons were employed in S.G.I.O. However, A.I.E.U. did not serve the log on S.G.I.O. or seek to extend its demands to those persons. When asked in evidence why the S.G.I.O. had not been joined, Mr. McLeod replied: "That is a matter for decision for ourselves. We will do what we want to do in our own time." However, Mr. McLeod repeatedly said in evidence that the claims made in respect of the employees of the Board were genuine and that A.I.E.U. intended to seek an award. He said that A.I.E.U. could not and would not seek members amongst the persons employed by the Board until it could offer them industrial cover. (at p336)
10. There is no evidence that the persons employed in the office of the Board wish to be brought under a new federal award. In fact their salaries and conditions for the most part are better than those available under federal awards in the insurance industry. However, the claims in the log, which are what are known as "ambit claims" and are therefore widely drawn, would, if acceded to, obviously confer on the employees better conditions than they have at present. (at p336)
11. It is, of course, clear that the Commission will only have jurisdiction if there is an industrial dispute extending beyond any one State; that is a constitutional as well as a statutory condition. There has been developed a highly artificial body of doctrine as to what constitutes a dispute. A "paper dispute", created by the formal delivery of a log of claims and a failure to comply with the demands contained in the log, will suffice. In Burwood Cinema Ltd. v. Australian Theatrical and Amusement Employees' Association [1925] HCA 7; (1925) 35 CLR 528, it was held that the delivery of a log by an organization of employees in a particular industry on employers in that industry who do not employ any members of that organization, may create a dispute between the organization and the employers as to the wages and conditions of the members of the organization if and when they are employed. The principle was extended in Metal Trades Employers' Association v. Amalgamated Engineering Union [1935] HCA 79; (1935) 54 CLR 387, where it was held that a dispute may be raised by an organization of employees in an industry with employers in that industry who employ none of its members as to the conditions on which they employ persons who are not members of the organization. That decision rested on the principle that "the interest which an organization of employees possesses in the establishment or maintenance of industrial conditions for its members gives a foundation for an attempt on its part to prevent employers employing anyone on less favourable terms": R. v. Commonwealth Court of Conciliation and Arbitration; Ex parte Kirsch [1938] HCA 41; (1938) 60 CLR 507, at p 537 per Dixon J. It is not a fatal objection that the purpose of the delivery of the log was to create an industrial dispute so as to give jurisdiction: Reg. v. Dunlop Rubber Australia Ltd; Ex parte Federated Miscellaneous Workers' Union of Australia [1957] HCA 19; (1957) 97 CLR 71, at p 81 and cases there cited. In consequence of these decisions, "it has become common practice to use the machinery of the Act, which was intended to provide a means of settling industrial disputes, as a means of creating them": Reg. v. Gough; Ex parte B.P. Refinery (Westernport) Pty. Ltd. (1966) 114 CLR 384, at p. 386. I would respectfully repeat the remark of Windeyer J. in Ex parte Professional Engineers' Association [1959] HCA 47; (1959) 107 CLR 208, at p. 268: "To permit the creation of a malady so that a particular brand of physic may be administered must still seem to some people a strange way to cure the ills and ensure the health of the body politic." However, the effect of the authorities, as they stand, is that although an employer and his employees may be in complete industrial harmony, a union of employees, none of whose members is employed by the employer, may create a dispute by delivering on the employer a formal log of claims, provided of course that the union and the employer are related to the same industry. (at p337)
12. Although a dispute may be contrived, it must be real and not a mere fiction. The demands made must be genuine, in the sense that the organization making them really wants what it demands: the Metal Trades' Case (1935) 54 CLR, at p 415; Melbourne and Metropolitan Tramways Board v. Horan [1967] HCA 1; (1967) 117 CLR 78, at p 84. If the log is not sincerely propounded as a demand on which the union is resolved to insist, and is nothing more than a step towards enabling the Commission to exercise jurisdiction, it will not create a real dispute: Caledonian Collieries Ltd. v. Australasian Coal and Shale Employees' Federation (No. 2) [1930] HCA 2; (1930) 42 CLR 558, at pp. 579-580. For example, if the demands are made to assist other employees to procure the acceptance of demands made by them, and not for the purpose of procuring acceptance of demands made by an alleged disputant, there will not be a real and genuine dispute: R. v. Blakeley; Ex parte Association of Architects etc. of Australia (1950) 82 CLR 54, at p. 69. The question whether a dispute is real and genuine is a question of fact, and when prohibition is sought it is for this Court to determine whether or not the fact on which the jurisdiction of the Commission depends exists: see the authorities to which I have recently referred in Reg. v. Alley; Ex parte New South Wales Plumbers and Gasfitters Employees' Union [1981] HCA 61; (1981) 153 CLR 376. The burden of showing that the Commission lacks jurisdiction rests on the prosecutor: Reg. v. Foster; Ex parte Commonwealth Life (Amalgamated) Assurances Ltd (1952) 5 CLR 138, at p 153. A formal demand will prima facie be regarded as real and genuine, unless the contrary is established: Felt Hatters' Case [1914] HCA 20; (1914) 18 CLR 88, at p. 109; R. v. Blakeley; Ex parte Association of Architects etc. of Australia (1950) 82 CLR, at pp 69, 83; Melbourne and Metropolitan Tramways Board v. Horan (1967) 117 CLR, at p 84. In deciding whether demands were genuine, it is relevant to inquire whether the union actively persisted in pressing them: Builders Labourers' Case (1914) 18 CLR 224, at p 246; R. v. Blakely; Ex parte Association of Architects etc. of Australia (1950) 82 CLR, at p 67. And, notwithstanding the decision in the Metal Trades' Case, and the doctrine that a union acts not as an agent but as a party principal, the number of the members of the union affected may be a circumstance to be considered in determining the genuineness of the demands: Australian Tramway and Motor Omnibus Employees' Association v. Commissioner for Road Transport and Tramways (N.S.W.) [1938] HCA 1; (1938) 58 CLR 436, at p. 441; see also Burwood Cinema Ltd. v. Australian Theatrical and Amusement Employees' Association (1925) 35 CLR, at p. 551 and Reg. v. Gough; Ex parte B.P. Refinery (Westernport) Pty. Ltd. (1966) 114 CLR, at p 387. (at p338)
13. In Australian Tramway and Motor Omnibus Employees' Association v.
Commissioner for Road Transport and Tramways (N.S.W.) (1938)
58 CLR, at p.
440, Evatt J. said that "the existence of a dispute extending beyond the
limits of one State is not negatived by mere
proof that the organization which
is making demands upon employers is also seeking to increase or retain its
membership. That circumstance,
with all other circumstances, may be examined
for the purpose of determining whether the demands for industrial conditions
are genuine
or a sham." I respectfully agree with this statement. A union, by
serving a demand, may wish to achieve two different objects - to
increase its
membership, and to secure the conditions contained in the log. Provided that
the latter purpose is genuinely held, the
demand will be a real one
notwithstanding that the former purpose actuated the union as well, and
failure to comply with the demand
will give rise to a real dispute. We were
referred to an unreported decision of Starke J. in A. J. Swain & Co. Ltd. v.
Australian
Saddlery etc. Employees' Federation High Court.; September 1936;
Unreported., where his Honour said:
"The creation or establishment of an industrial dispute is
inherently difficult when employers have no members of an
industrial organization in their employ, and when demands are
made upon them merely for the purpose of 'roping them in' and
obtaining uniform conditions in Australia, although their
employees are not behind and give no support to the demands.
A claim made and refused in these circumstances does not
constitute an industrial dispute, and I so find in fact." (at p339)
14. These words appear to give more weight to the circumstances that the
employer has no members of the organization in his employ,
and that his
employees do not support the demands, than the Metal Trades' Case [1935] HCA 79; (1935) 54
CLR 387, and the decisions
that have followed
it, would allow, but the use of
the word "merely" is important. It is not
inconsistent with the authorities to
say that if the sole
purpose of the demands was to "rope in" the employer, and
if the union
did not really seek compliance with its
demands, the
non-compliance
with the demands would not create a real dispute. (at p339)
15. In the present case it was submitted on behalf of the prosecutors that the evidence supported the view that the log had been delivered to the Board under the mistaken belief that the persons working in the office of the Board were employed by the Board and for that reason it was not a real and genuine log of claims. If the first proposition be accepted, the second does not follow from it. It is true that the evidence shows that A.I.E.U. refrained from serving the log, not only on S.G.I.O., but also on those State insurance offices in other States which were known to employ public servants. Mr. McLeod gave evidence that the A.I.E.U. had decided at this stage to confine its activities to statutory authorities, and he appears to have meant that it had been decided not to seek an award governing employees of State instrumentalities who were public servants. On the first day of the proceedings before the Commission counsel for A.I.E.U. argued quite strongly that the employees in the office of the Board were employees of the Board. However, when the Deputy President ruled that they were employees of the Crown, A.I.E.U., knowing that the employees were public servants, promptly arranged service on the Crown and continued for four more days of the hearing to urge its case. If the claim was not otherwise lacking in genuineness, it cannot be considered a sham simply because it was made under a mistake as to whether the employees were public servants or not, particularly when, the true facts having been discovered, the union making the claim served the Crown with the log and persisted in its claim. (at p340)
16. The more important branch of the argument submitted on behalf of the prosecutors was that the evidence as a whole showed that the claim in the log was not genuinely made against the Board or the Crown in relation to persons employed in the offices of the Board. It was said that the claim was made simply to get "union coverage" of the persons employed in the Board as against S.P.S.F.; in other words, that there was a dispute between the two unions, but none between A.I.E.U. and the Board. In submitting this argument the prosecution relied on the following circumstances. In 1975, when no finding of a dispute with S.G.I.O. was made, A.I.E.U. did not pursue its application against S.G.I.O. After the Board was constituted, in 1978, A.I.E.U. took no steps to make demands against the Board until S.P.S.F. had advertised its intention to apply to amend the rules governing eligibility for membership. At the time the log was served none of the persons employed in the office of the Board were members of A.I.E.U., and none sought the making of a federal award. Clearly A.I.E.U. was influenced in delivering the log to the Board by the fact that it wished to preserve its rights of coverage vis-a-vis S.P.S.F. An important circumstance is that after A.I.E.U. had served the log it wrote to the Public Service Board (on 31 August 1979) stating that its intention was to preserve its rights of industrial coverage in connexion with the agreement with S.P.S.F. and that its intention was not to proceed when the matter was heard on 19 September 1979. However, although A.I.E.U. was desirous that the matter should be adjourned, it appears that those representing the Crown sought a finding that no dispute existed and it was for that reason that the matter was brought on again before the Deputy President on 26 November. (at p340)
17. The case is not without its difficulties, but in the end I have concluded that the prosecutors have failed to discharge the onus that lies upon them of proving that the dispute was not real and genuine. It is true that an irresistible inference from the evidence is that one purpose of A.I.E.U. in serving a log on the Board, and later on the Crown, was to protect its position from encroachment by S.P.S.F. and sooner or later to gain more members for itself. If it had not been for the evidence given before the Commission by Messrs. McLeod and Langmead it would, I consider, have been proper to infer that that was A.I.E.U.'s only purpose. However, Messrs. McLeod and Langmead gave evidence that the claims were genuine and that A.I.E.U. intended to seek an award. The Deputy President made no express finding as to the credibility of those witnesses but in view of her ultimate conclusion it would have been expected that if she had not accepted their evidence she would have said so. Since the prosecutors did not call evidence before us, we have not had an opportunity to see the witnesses and to form our own opinion as to their credibility. However, there is nothing inherently incredible in their evidence that they genuinely desired to obtain an award even though the purpose of obtaining the award was to increase the membership of A.I.E.U. so as to include persons employed in the offices of the Board. Even if A.I.E.U. served the log of claims with the dominant motive of maintaining its position in relation to S.P.S.F., that would not mean that it had no genuine intention of pursuing the claims. It in fact persisted in them. In all the circumstances, it does not seem to me possible for this Court to form for itself the opinion that the crucial evidence of Messrs. McLeod and Langmead should not be believed. It follows that the prosecutors have failed to prove that the sole purpose of A.I.E.U. in making the demands was to protect its position from encroachment by S.P.S.F., or to gain more members, and that it had no real desire that the claims in the log should be met, and did not make the demands for the purpose of procuring acceptance to them. The onus of proving that there was no real dispute has not been discharged. (at p341)
18. I have referred to the difficulty created by the fact that the employees in question are not employees of the Board. If the Board had relied on that fact, it would appear that it must have succeeded in its contention that it was not a party to the dispute. However, since the Board did not rely on this matter before us it may be left to the Commission to correct its finding. Further, of course, the fact that the circumstances will call for a consideration by the Commission of the possible exercise of its powers under s. 41(1)(d) of the Act is not relevant on the present application. (at p341)
19. I would discharge the order nisi. (at p341)
MURPHY J. The prosecutors seek a writ of prohibition or certiorari directed to Cohen J., a Deputy President of the Australian Conciliation and Arbitration Commission in respect of proceedings in the Commission so far as they relate to the Workers' Compensation Board of Queensland. (at p341)
2. The prosecutors do not allege that there is not otherwise an industrial dispute extending beyond the limits of one State. They assert that the Workers' Compensation Board of Queensland does not employ and never has employed any members of the union - and therefore service on the Board of the union's log of claims, and the Board's refusal to accede to the claims, does not give rise to a dispute. (at p342)
3. To succeed, the prosecutor must show that there is no actual or potential industrial dispute extending beyond one State: see s. 4, Conciliation and Arbitration Act 1904 (Cth), as amended, definition of "industrial dispute". The cases show that the system of registered organizations enables the creation of such an actual or potential dispute but demands made by an organization of employees in respect of work "covered" by the organization, even though no members of the organization are presently engaged on such work: Metal Trades Employers' Association v. Amalgamated Engineering Union [1935] HCA 79; (1935) 54 CLR 387; R. v. Commonwealth Court of Conciliation and Arbitration; Ex parte Kirsch [1938] HCA 41; (1938) 60 CLR 507. (at p342)
4. The Conciliation and Arbitration Act creates an industrial relationship between an organization of employees and any actual or potential employer, in the industry in or in connexion with which the organization is registered (or at least any actual or potential employer of persons eligible to become members of the organization): Reg. v. Graziers' Association of New South Wales; Ex parte Australian Workers' Union [1956] HCA 31; (1956) 96 CLR 317. (at p342)
5. In this Court the onus is on the prosecutor to prove that the Commission is without jurisdiction. The prosecutor therefore has to prove, and prove clearly that there is no actual or potential industrial dispute extending beyond one State: Reg. v. Foster; Ex parte Commonwealth Life (Amalgamated) Assurances Ltd. [1952] HCA 10; (1952) 85 CLR 138; R. v. President of the Commonwealth Court of Conciliation and Arbitration and Merchant Service Guild of Australasia; Ex parte William Holyman and Sons Ltd. [1914] HCA 36; (1914) 18 CLR 273; Reg. v. Commonwealth Conciliation and Arbitration Commission; Ex parte Australian Workers' Union [1957] HCA 97; (1957) 99 CLR 505; Reg. v. Alley; Ex parte New South Wales Plumbers and Gasfitters Employees' Union [1981] HCA 61; (1981) 153 CLR 376. In this case the prosecutors assert the absence of such a dispute, on the ground that any such dispute is not real and genuine in relation to certain work of the Workers' Compensation Board of Queensland. The evidence does not support the assertion. In this respect I agree with the analysis by the Chief Justice. (at p342)
6. The order nisi should be discharged. (at p342)
AICKIN J. In this matter I have had the advantage of reading the reasons for judgment of the Chief Justice with which I am in full agreement. There is nothing I can usefully add. The order nisi should be discharged. (at p343)
WILSON J. This is the return of an order nisi made by Mason J. for the issue of writs of prohibition and certiorari directed to the Honourable Justice Cohen, a Deputy President of the Conciliation and Arbitration Commission and to the Australian Insurance Employees' Union ("the Union") in relation to a decision made on 24 July 1980 by Cohen J. that an industrial dispute existed between the Union and the Workers' Compensation Board of Queensland ("the Board"). The prosecutors are the Minister for Justice and Attorney-General for the State of Queensland and the Board. (at p343)
2. The submission of the prosecutors in support of the writs is that on the evidence placed before her, Commissioner Cohen (as she then was) should not have found a dispute to exist. That evidence, so it is said, established that notwithstanding the delivery of a log of claims by the Union and the refusal of the Board, there was no real and genuine industrial dispute. Although some additional matters were canvassed in the hearing before the Commission, the question whether the dispute was real and genuine is the sole matter at issue between the parties to these proceedings. The parties did not turn their attention to the position of the Board, having regard to the fact that the workers in question, being members of the public service, are employed not by the Board but pursuant to the Public Service Act 1922 (Q.). In any event, this is a matter which may conveniently be corrected by the Commission. (at p343)
3. In order to understand how the prosecutors put their case it is necessary to recount some matters of history. The criterion of eligibility for membership of the Union is set out in r. 5 of its Constitution. So far as material, that rule provides that the Union shall consist "of an unlimited number of members, male and female, employed or usually employed in the business of Insurance or Assurance". In 1975 the Union, under its then name of Australian Insurance Staffs Federation, served a log of claims on a number of statutory authorities engaged in the business of insurance in several States, including the State Government Insurance Office (Q.) ("the S.G.I.O."). A dispute was notified. Following a contested hearing before Commissioner Paine, the matter of an alleged dispute with the S.G.I.O. was adjourned without any finding of a dispute. The Union did not proceed further with its application against that employer. The only persons employed in the S.G.I.O. were public servants in the service of the Crown. (at p343)
4. Also in 1975 the State Public Services Federation ("the S.P.S.F.") applied for registration under the Conciliation and Arbitration Act 1904 (Cth) ("the Act") as an organization of employees. The Union objected to the registration, and thereafter negotiated an agreement with the S.P.S.F. whereby the latter acknowledged that, while it had at that stage excluded employees and employers in Queensland from the reach of its rules, the employees of the S.G.I.O. would be exclusively within the eligibility rule of the Union and that in the event of a future extension by the S.P.S.F. of its coverage into Queensland it would not disturb that situation of exclusive eligibility in favour of the Union. (at p344)
5. In 1978 the Workers' Compensation Act Amendment Act was enacted and came
into operation on 1 July 1978. It amended the principal
Act, the Workers'
Compensation Act 1916-1974, in a number of respects. In particular, it
established the Board as a body corporate
to represent the Crown (s. 3A), and
empowered and authorized it:
"(a) to carry on the business of accident insurance;
(b) to carry on such of the business of insurance of persons,
whether or not employers, in respect of injury suffered by
them and liability incurred by them in respect of injury
suffered by other persons as is provided for by or under
this Act; . . . " (s. 4(1)). (at p344)
6. The business so described had hitherto been conducted by the S.G.I.O., and
on 1 July 1978 those employees who worked in the Workers'
Compensation
Department of the S.G.I.O. were assigned to the Board. They remained public
servants. (at p344)
7. The establishment of the Board caused some concern to the Union, in that it no longer had the comfort, in relation to the workers who had been transferred from the S.G.I.O., of the acknowledgment from the S.P.S.F. When, in 1979, the S.P.S.F. applied to amend its rules relating to the eligibility clause, the Union objected to the application and took steps, apparently without success, to have the S.P.S.F.'s acknowledgment of the exclusive coverage by the Union of workers employed by the S.G.I.O. extended to cover the workers employed by the Board. It was admitted in evidence by Mr. McLeod, the Secretary of the Union, that the sole purpose of the Union in objecting to the application of the S.P.S.F. was to encourage the latter to extend its acknowledgment to cover the Board. At about the same time, that is to say, in July 1979, the Union served the present log on the Board. The log was not served on the S.G.I.O., notwithstanding its continued employment of some 1,400 persons in the business of insurance. (at p344)
8. When the proceedings opened before Commissioner Cohen in November 1979 it
became known that the persons engaged in the Board's
operations were public
servants, and the log of claims was served without delay on the
Attorney-General. A State-registered union,
the Queensland State Service Union
of Employees ("the State union") which held the membership of all but three of
the 441 employees
of the Board, intervened in support of the opposition to the
finding of a dispute. The State union attacked the genuineness of the
dispute,
and produced a letter of 30 August 1979 which had been received from the
Union. It advised the State union of its intention
not to pursue the finding
of a dispute with the Board at that time, and affirmed its determination to
preserve its rights of industrial
coverage by way of agreement with the
S.P.S.F. It was argued for the State union that the service of the log of
claims was not in
truth directed to the relations between employers and
employees but to the preservation of the Union's rights of coverage of the
Board's employees and hence with the relations of two organizations registered
under the Act, the Union and the S.P.S.F. Cohen J.
dealt with this argument
as follows:
"There is still the question of the Union's motives in
serving the log on the Board. The history of the matter
reflects the A.I.E.U.'s continuing anxiety over a long period
to establish its rights of coverage of these employees, for
what purpose other than eventually to enrol them as members
and seek an award for them it is impossible for me to
speculate. All that can be read into the evidence of
conversations and correspondence between the Union and the
Q.S.S.U.E. relating to the former's intentions in serving the
log on the Board in July 1979, is that it did not intend to
proceed to seek an award 'at that stage'. I cannot impute
motives of 'non-genuineness' in the circumstances to a union
seeking a finding of dispute with an employer upon whom it
has served a log of claims in respect of employees it is
entitled to enrol as members." (at p345)
9. As I have said, the prosecutors take their stand on this issue of
genuineness. Mr. Shepherdson Q.C., who appeared as their counsel,
argued that
the evidence left no doubt as to the policy of the Union in 1979 when the log
was served on the Board and on other statutory
authorities in all other States
except New South Wales. That policy was to limit its dispute to those
authorities which did not
employ public servants. The fact that the Board was
served, while the S.G.I.O. was not, could supply inferences touching the
purpose
of the Union which would show that there was no real dispute with the
Board. One inference was that the log was delivered to the
Board by mistake in
the belief that its employees were not public servants. The second inference,
which may stand either alone or
together with the first, was the desire to
maintain, at the federal level, the exclusive right to cover employees in
statutory authorities
in Queensland in the business of insurance. It was this
right which had been secured originally by its arrangement with the S.P.S.F.
In essence, Mr. Shepherdson argued that it was inconceivable that the Union
was genuinely seeking an award with the Board whilst
at the same time it made
no attempt to involve the S.G.I.O. which employed a much greater number of
potential members. Reference
was made to the fact that the great majority of
the employees of the Board were members of the State union and had made known
their
wish to maintain that affiliation, and also to the fact that the
conditions presently enjoyed by such employees compared favourably
with the
conditions which existed under the present federal award. Nevertheless, the
claims advanced in the log were an improvement
on the present State award. It
was said that Cohen J. erred in failing to take into consideration the fact
that the Union had no
members among the employees of the Board, the
contradiction evident in the approach of the Union to the Board and to the
S.G.I.O.,
and the history of the arrangement with the S.P.S.F. (at p346)
10. The relevant principles are well established. The theory of the socalled "paper dispute" is that a dispute within the meaning of s. 51 (xxxv) of the Constitution may be created by a formal demand and refusal: Reg. v. Graziers' Association of New South Wales; Ex parte Australian Workers' Union [1956] HCA 31; (1956) 96 CLR 317, at p 333. Nevertheless, such disputes must be real and genuine and seriously persisted in. This is always a question of fact and in proceedings for prohibition the fact must be determined by this Court on its independent view of the evidence: Caledonian Collieries Ltd. v. Australasian Coal and Shale Employees' Federation (No. 2) [1930] HCA 2; (1930) 42 CLR 558, at pp. 577-578. Of course, in a case where the jurisdiction of the Commission depends upon a question of fact, considerable weight will attach to the finding of the tribunal Commissioner. Unless that finding is manifestly wrong, the Court will hesitate very much before it will interfere. In the words of Isaacs J., "a doubt as to error is resolved in favour of jurisdiction": Caledonian Collieries Ltd. v. Australasian Coal and Shale Employees' Federation (No. 1) [1930] HCA 1; (1930) 42 CLR 527, at p. 548; cf., also, R. v. Blakeley; Ex parte Association of Architects etc. of Australia [1950] HCA 40; (1950) 82 CLR 54, at pp. 92-93. (at p346)
11. The nature and role of an organization of employees registered under the Act is of great importance. It is not a mere agent of its members: ". . . it stands in their place, and acts on their account and is a representative of the class associated together in the organization. It is, as my brother Higgins said, 'a party principal', and 'not a mere agent or figurehead'. The acts and conduct of its members are relevant, no doubt, upon the question whether the dispute submitted to the Court by the organization or referred to it by other means is real or illusory, but otherwise their acts and conduct are immaterial": Starke J. in Burwood Cinema Ltd. v. Australian Theatrical and Amusement Employees' Association [1925] HCA 7; (1925) 35 CLR 528, at p. 551. (at p347)
12. This doctrine touching registered organizations is fundamental to a
resolution of the problem in this case. It renders it less
material to the
creation of a dispute that the organization may have no members employed by
the employer on whom the demand is made.
The application of the doctrine in
such a case was described in the judgment of the Court in Reg. v. Dunlop
Rubber Australia Ltd.;
Ex parte Federated Miscellaneous Workers' Union of
Australia [1957] HCA 19; (1957) 97 CLR 71, at p 81 in these terms:
". . . a demand by an organization upon employers who employ
at the time none of its members may put those employers in
dispute with the organization as to the wages and conditions
of its members if and when they are employed. It (i.e., the
doctrine) is the basis, too, of the further decision that a
like dispute may be raised as to the wages and conditions
which such employers pay to non-members (Metal Trades
Employers' Association v. Amalgamated Engineering Union
[1935] HCA 79; (1935) 54 CLR 387). That basis is that not only need no
present relation of employer and employee exist but that the
organization making the demand does not act merely as an
agent for its members. It acts in an independent capacity and
it does so because it represents not definite or then
ascertainable individuals but a group or class the actual
membership of which is subject to constant change, a group or
class formed by reference to an industrial relationship,
usually depending upon an industry or calling." (at p347)
13. The principle of the Metal Trades Case which is referred to in this
passage was stated by Dixon J. in R. v. Commonwealth Court
of Conciliation and
Arbitration; Ex parte Kirsch [1938] HCA 41; (1938) 60 CLR 507, at pp. 537-538 in a form
approved by the Court
in R. v. Kelly;
Ex parte Victoria [1950] HCA 7; (1950) 81 CLR 64, at p
82 as follows:
"The principle upon which the decision rests is that the
interest which an organization of employees possesses in the
establishment or maintenance of industrial conditions for its
members gives a foundation for an attempt on its part to
prevent employers employing anyone on less favourable terms.
As a result an industrial dispute may be raised by it with
employers employing none of its members and an award may be
made binding such employers and regulating the terms and
conditions upon which they may employ unionists or
non-unionists." (at p348)
14. Finally, it is established that when a log of claims is served and is
followed by a refusal, the prima facie conclusion is that
an industrial
dispute exists. The onus of displacing that prima facie conclusion rests upon
the prosecutor: Blakeley (1950) 82 CLR,
at p 83. (at p348)
15. In the context of this jurisprudence, it seems to me that the Union is in
a strong position to resist the attack which the prosecutors
have made on the
genuineness of the dispute. It is true that it had no members in the employ of
the Board, or indeed in Queensland
at all at the material time, but that fact
is not determinative of the issue. It is an organization representative of
workers in
the insurance industry, and it was therefore legitimate for it to
evince an interest in the conditions in that industry of employees
who were
eligible to become members of the organization. Let it be assumed that there
was an ulterior motive in attempting to secure
an award, namely, to forestall
a move into Queensland by the S.P.S.F. The existence of such a motive confirms
rather than denies
the reality of the dispute, and any change of policy
reflected therein is explained by the apparent unwillingness of the S.P.S.F.
to extend the existing arrangement to cover the Board. In the course of his
evidence, Mr. Langmead, speaking for the Union, said:
"It was, of course, to protect our coverage to the extent
that we had received advice that the Queensland Workers'
Compensation Board was . . . free to be covered by anybody,
so of course we wished to move in and attempt to gain
coverage and an award for those people." (at p348)
16. He explained that the drive for membership could wait until the right to
cover was secured. The prosecutors relied heavily on
the incongruity evident
in the fact that the Union did not proceed against the S.G.I.O. which employed
so many more potential members
of the Union than the Board. On the other hand,
it may be observed that there was no urgency in the case of the S.G.I.O.
because
the agreement with the S.P.S.F. secured to the Union exclusive access
in due course to those employees at the federal level. There
is some force in
the assertion of Mr. McLeod in his evidence that it was for the Union and no
one else to decide when and where its
next move would be. (at p348)
17. As for the argument based on the former policy of the Union not to seek awards with statutory authorities which employed public servants, it is surely refuted by the conduct of the Union in proceeding to serve the log on the Crown in right of the State of Queensland as soon as the public service character of the employment is discovered. The fact that the claim is then persisted in throughout contested proceedings occupying several days and concerned solely with the question of the genuineness of the claim does not advance the cause of the prosecutors. (at p349)
18. Mr. Shepherdson relied on an unreported decision of Starke J. in a case
intituled A. J. Swain & Co. Ltd. v. Australian Saddlery
etc. Employees'
Federation High Court.; September 1936; Unreported. His Honour concluded his
judgment with these words:
"The creation or establishment of an industrial dispute is
inherently difficult when employers have no members of an
industrial organization in their employ, and when demands are
made upon them merely for the purpose of 'roping them in' and
obtaining uniform conditions in Australia, although their
employees are not behind and give no support to the demands.
A claim made and refused in these circumstances does not
constitute an industrial dispute, and I so find in fact." (at p349)
19. The decision clearly is based on the facts of the case. If an analogy
were to be drawn between the circumstances described by
his Honour and the
present case, one must test the conclusion against the doctrine of the role of
the organization as it has been
developed through later decisions of the
Court. Although Starke J. dealt with Swain's Case shortly after his
participation in the
Metal Trades Case, his appreciation of the doctrine as
expressed in the passage I have cited is difficult to reconcile with the
formulation
of the same doctrine by Dixon J. in Kirsch [1938] HCA 41; (1938) 60 CLR 507, a
formulation which has been referred to with approval
in a number
of later
cases, including R. v. Kelly; Ex
parte Victoria [1950] HCA 7; (1950) 81 CLR 64, the
Graziers Case [1956]
HCA 31; (1956) 96 CLR 317 and more recently
in Reg. v. Moore; Ex parte
Graham (1977) 138 CLR 164, at p 176 Cf also
the extended discussion of the
doctrine in Dunlop Rubber
[1957] HCA 19; (1957) 97 CLR 71, at p. 80ff. Present doctrine does
not
make the fact, if it be the fact, that "employees are not behind and give
no support to the demands" of the organization determinative
of the question
whether or not a dispute exists, however relevant it
may be to the exercise of
the discretion to refrain from making
an award. With respect I am unable to
conclude that Swain's Case
warrants a conclusion favourable to the prosecutors
in the present
case. (at p349)
20. There are, of course, features of this case which suggest that a strong case could be made out for the exercise by the Commission of the discretion conferred on it by s. 41(1)(d) of the Act to refrain from hearing a dispute if it appears that it is proper to be dealt with by a State Industrial Authority. The absence of federal coverage in Queensland in the past, the decision to proceed against the Board but not the S.G.I.O., the extensive hold of the State union over the employees both of the Board and the S.G.I.O., the professed wish of those employees to stay with the State industrial system, and the standard of the conditions of employment already enjoyed by the employees in question, are all considerations which would be pertinent to the exercise of the discretion to which I have referred. However, it was the expressed wich of the Board and the intervener, contrary to the suggestion of the Commissioner, that the question of the existence of a dispute should be dealt with before any question of discretion was considered. It must be emphasized that the considerations which I have mentioned are wholly irrelevant to the issue now before this Court. (at p350)
21. In my opinion, the evidence supports the conclusion of Cohen J. in favour of the existence of a genuine industrial dispute. (at p350)
22. I would discharge the order nisi. (at p350)
BRENNAN J. I agree with the reasons for judgment of the Chief Justice and with the order he proposes. (at p350)
ORDER
Order nisi for writs of prohibition and certiorari discharged.
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