R v Commonwealth Conciliation and Arbitration Commission; Ex parte - [1969] HCA 49

HIGH COURT OF AUSTRALIA

Barwick C.J., Kitto, Taylor, Menzies, Windeyer and Owen JJ. (THE RIGHT HONOURABLE MR. JUSTICE TAYLOR died before judgment was delivered in

REG. v. COMMONWEALTH CONCILIATION AND ARBITRATION COMMISSION; Ex parte TRANSPORT WORKERS' UNION OF AUSTRALIA

(1969) 119 CLR 529

13 October 1969

Conciliation and Arbitration (Cth)

Conciliation and Arbitration (Cth)—Industrial dispute—Industrial matter—What constitutes—Demand for demarcation in handling cargoes in container form—Relations of employers and employees—"Demarcation of functions of employees"—Classes of employees—Preference to members of particular organizations—Recommendation of Commission on matter not within its power—Prohibition—Conciliation and Arbitration Act 1904-1968 (Cth), ss. 4 (1)*, 47, 144.

Decisions

October 13.
The following written judgments were delivered:-
BARWICK C.J. The prosecutor, The Transport Workers' Union of Australia, an organization of employees registered under the provisions of the Conciliation and Arbitration Act 1904-1968 (Cth) (the Act) seeks prohibition against the Commonwealth Conciliation and Arbitration Commission (the Commission) set up under the Act, a Deputy President of the Commission, the respondent employers, namely, Associated Steamships Pty. Limited, Brisbane Wharves and Wool Dumping Pty. Limited, Liner Services Pty. Limited, McLlwraith's Transport Pty. Limited, Seatainer Terminals Limited and Trans-Ocean Containers Pty. Limited, and the respondent unions, namely, The Waterside Workers' Federation of Australia, The Federated Storemen and Packers' Union of Australia, The Federated Engine Drivers and Firemen's Association of Australasia and The Federated Clerks' Union of Australia, which are also organizations of employees registered under the Act, to prevent further proceedings upon an award of the Commission, known as "The Container Depots Demarcation Award, 1969" (the award) made on 3rd March 1969 and varied on 10th March 1969. The award was made in purported settlement of a dispute said to be created by the service by the respondent employers upon the prosecutor and the respondent unions of a log of claims and its non-acceptance by those on whom it was served. The occasion for the service of the log was the expectation by the respondent employers of commencing what in Australia were then new procedures in the handling of goods to the wharf and into and out of ships and from the wharf to distribution points in the course of export and import trade. Terminals are to be set up on wharves where containers holding goods which have been packed therein will be assembled for shipment on, or for removal after discharge from, ships, as the case may be. Suitable gear will be installed at the terminal to handle the containers inboard or outboard, as the case may be, of ships suitably designed for the purpose of carrying containerized cargo, called container ships. The containers are to be moved out of or into depots where goods will have been packed into them or where goods will be unpacked from them. These depots will not be at or necessarily adjacent to wharves, the goods being brought to them or moved out of them in general by land transport. (at p534)

2. According to the log of claims -

"As the introduction of container vessels…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1969] HCA 49
Decision Date: 13 October 1969

CaseChat Overview and Summary

The High Court of Australia considered an application for a writ of prohibition directed to the Commonwealth Conciliation and Arbitration Commission. The applicant, a trade union, sought to prevent the Commission from proceeding with a hearing concerning a dispute over certain industrial conditions. The dispute arose from a log of claims served by the union on employers, which the employers contended contained demands that were not proper subject matters for conciliation and arbitration under the relevant legislation.

The central legal issue before the Court was whether the demands contained within the union's log of claims were capable of giving rise to an "industrial dispute" within the meaning of the *Conciliation and Arbitration Act 1904* (Cth). Specifically, the Court had to determine if demands relating to matters outside the employer-employee relationship, such as the union's right to be consulted on management decisions or the establishment of a union-controlled superannuation fund, fell within the scope of the Act.

The Court reasoned that the *Conciliation and Arbitration Act* was designed to regulate the relations between employers and employees and to settle industrial disputes. It held that demands which sought to regulate matters beyond this relationship, or which imposed obligations on parties not directly involved in the employment contract, were not capable of forming the basis of a dispute that the Commission had jurisdiction to hear and determine. The Court distinguished between demands that were incidental to the employment relationship and those that sought to fundamentally alter the nature of the employer's business or management control.

The application for a writ of prohibition was granted.

Orders