Australian Timber Workers' Union Claimant; and John Sharp and Sons Limited

[1919] HCA 38

26 CLR 302

THE AUSTRALIAN TIMBER WORKERS'

JOHN SHARP &SONS LIMITED AND OTHERS RESPONDENTS. Industrial Arbitration--Dispute, proof of existence of-Dispute between organization

of employees and employers-No members of organization employed by respondent employers-Probable dispute-Commonwealth Conciliation and Arbitration Act MELBOURNE,

1904-1915 (No. 13 of 1904-No. 35 of 1915), secs. 4, 21AA. July 28, 31;

As between an organization of employees and an employer who employs persons doing the same kind of work as is done by members of the organization, although no members of the organization are employed by that employer, an "industrial dispute" may exist or, if members of the organization will probably apply to the employer for employment, may be probable.

Australian Workers' Union v. Pastoralists' Federal Council, 23 C.L.R., 22,

26 CLR 303

The Australian Timber Workers' Union, an organization registered under the Commonwealth Conciliation and Arbitration Act 1904-1915, AUSTRALIAN instituted proceedings in the Commonwealth Court of Conciliation and Arbitration against John Sharp &Sons Ltd. and a large number of persons, firms and companies, alleging the existence of an industrial dispute extending beyond the limits of one State. The Union, according to its rules, consisted of "all persons who are employed, or are usually employed, in any position in or in connec- tion with sawmills, timber yards, box and case factories, saw makers' shops, joiners' workshops, car and waggon shops, and coach builders' shops, or in preparing woodwork for joiners, carpenters, implement makers, coach builders, car and waggon builders, and hewers, splitters, fallers, and all woodworking machinists throughout the Commonwealth, and such other persons who may from time to time be appointed to any office."

An application was made by the organization by motion to the High Court under sec. 21AA of the Commonwealth Conciliation and Arbitration Act 1904-1915 for a decision on the question whether the alleged dispute or any part thereof existed, or was threatened or impending or probable, as an industrial dispute extending beyond the limits of any one State.

The other material facts appear in the judgment of Higgins J. hereunder.

Foster, for the claimant organization. Stanley Lewis and Owen Dixon, for some of the respondents. Robertson, for other respondents.

Cur. adv. vult.

HIGGINS J. read the following judgment :- This is an application for a decision under sec. 21AA of the Com- monwealth Conciliation and Arbitration Act. There has been con- siderable difficulty in finding which of the respondents to the plaint are parties severally to the numerous items of the log; inasmuch

26 CLR 304

as the log affects employers SO diverse as proprietors of bush mills,

proprietors of timber yards, proprietors of furniture warehouses, and SO forth. An important point of law was raised by respondents who have timber yards in Western Australia. They have, for instance, machinists of different varieties employed; but at present

JOHN SHARP none of the machinists actually employed are members of the

claimant Union. There are plenty of wood machinists in the Union. and there is no reason for thinking that they would not take employ- ment with these respondents if they can get satisfactory terms. In the case of Australian Workers' Union v. Pastoralists' Federal Council 1 I held that there is nothing in the Constitution or in the Act forbidding the finding of a dispute between a union and employers, even if no members of the union are actually in the employment of a respondent; and that, even if this view be incor- rect, there is a probable dispute, if members of the union would probably apply to the respondent for employment. At first Mr. Dixon asked me to state a case for the opinion of the High Court on the subject. I am always chary of refusing a request by counsel for a case to be stated for the full High Court, inasmuch as my decision under sec. 21AA is not subject to any appeal. But even- tually Mr. Dixon withdrew his request. I therefore follow my own decision in the Pastoralists' Case.

[The learned Judge then made an order which is not material to this report.]

Solicitors for the claimant, Brennan &Rundle. Solicitors for the respondents, Derham, Robertson &Derham.

123 C.L.R., 22