R v Commonwealth Court of Conciliation and Arbitration

[1914] HCA 58

19 CLR 43

THE COMMONWEALTH COURT OF CONCILIATION AND

ARBITRATION AND THE PRESIDENT THEREOF

AND THE AUSTRALIAN TRAMWAY EMPLOYEES' ASSOCIATION. Ex

THE BRISBANE TRAMWAYS COMPANY Ex

THE MUNICIPAL TRAMWAYS TRUST, Industrial Arbitration-Award-Validity-Dispute - extending beyond the limits of

any one State-Demand - and refusal-No genuine grievance-Dema merely a means to obtain an award-Organization-Rules-Amendment-Preference MELBOURNE, to unionists-The Constitution (63 &64 Vict. c. 12), sec. 51 (xxxv.)-Common- wealth Conciliation and Arbitration Act 1904-1910 (No. 13 of 1904-No. 7 of 1910), secs. 4, 55 (2), Schedule B-Industrial Peace Act 1912 (Qd.) (No. 19 of 1912), 8. 34.

The President of the Commonwealth Court of Conciliation and Arbitration July 27-31; having, on the application of an organization of tramway employees, made an award purporting to bind a tramway company in Queensland and a tramway trust in South Australia, on an order nisi for prohibition,

Held, by Griffith C.J. and Barton, Gavan Duffy and Rich JJ. (Isaacs and Powers JJ. dissenting), that upon the evidence there was no dispute extending beyond the limits of any one State, inasmuch as, assuming the organization of employees to have validly served on the employers in several States a demand

19 CLR 44

in the form of a log of conditions of employment which the employers were required to adopt, and that demand had not been acceded to by the employers, yet that demand did not represent the real grievances of any body of employees but was put forward by the organization merely as a means of invoking the jurisdiction of the Commonwealth Court of Conciliation and [No. 2].

Arbitration and obtaining from it an award on the most favourable terms possible and, therefore, that the President had no jurisdiction to make the

The rules of an association, copies of which have been lodged with the Industrial Registrar together with an application for registration of the association as an organization pursuant to Schedule B to the Commonwealth Conciliation and Arbitration Act 1904-1910, may not thereafter be altered until the association has been registered as an organization, and then only in the manner prescribed by those rules.

So held by Griffith C.J. and Barton, Gavan Duffy, Powers and Rich JJ. (Isaacs J. dissenting).

Held, also, by Griffith C.J. and Barton J., on the evidence, 1 that the alleged dispute was not submitted to the Court by an organization, but by an irregular voluntary association of persons assuming to act in its name (2) that at the date of the award there was no subsisting dispute extending beyond a single State, or that if there was it did not extend to Queensland,

Held, further, by Griffith C.J. and Barton J., that the award so far as it purported to extend to Queensland was invalid so far as it directed preference to unionists, as being contrary to the provisions of the Industrial Peace Act of 1912 (Qd.)

ORDERS nisi for prohibition.

This was a continuation of the hearing of two orders nisi obtained, respectively, by the Brisbane Tramways Co. Ltd. and the Municipal Tramways Trust, Adelaide, for prohibition in respect of an award made by the President of the Commonwealth Court of Conciliation and Arbitration after a preliminary objec- tion to the jurisdiction of the High Court had been overruled: The Tramways Case [No. 1] (1).

The material facts and the nature of the arguments are stated in the judgments hereunder.

Mitchell K.C., Feez K.C. and Henchman, for the Brisbane Tramways Co. Ltd.

O'Halloran and Angas Parsons, for the Municipal Tramways Trust, Adelaide.

118 C.L.R., 54. 19 CLR 45

Arthur and Hain, for the Australian Tramway Employees' Association.

Starke and Schutt, for the Commonwealth intervening.

Our. adv. vult. The following judgments were read :-

GRIFFITH C.J. These are two applications for prohibition against the President of the Commonwealth Court of Conciliation and Arbitration and the Australian Tramway Employees' Associ- ation, an organization registered under the Conciliation and Arbitration Act, in respect of an award made by the President on 21st December 1912, which purported to establish two separate codes of conditions governing the respective applicants in their relationship to their employees. The award is in both cases to be in force until 30th June 1916, but under sec. 28 of the Act it will continue in force after that date until a new award is made or the Court otherwise orders. The importance to the applicants of their contention that the award or awards was or were made without jurisdiction becomes therefore manifest, since, if it fails. the control of their business is taken out of their hands for an indefinite period. Several objections have been taken to the jurisdiction of the Court, with which I will deal in order.

The foundation of the award or awards is, of course, that there was in existence an industrial dispute extending beyond any one State, with which the Arbitration Court had jurisdiction to deal, and to which the respondents to the plaint or some of them were parties. The original respondents to the plaint were eleven in number, being the owners of tramway systems in the five States of Queensland, South Australia, Tasmania, Victoria and Western Australia. Beyond the fact that they were all owners of tram- way systems there was no connection of any kind between them, and the operations of the tramway systems in one State had no effect, direct or indirect, upon those of the systems in any other State. Some of the respondents used electrical traction, some cable traction, and some horse traction in conjunction with one or the other one used horse traction alone. The only bond of

19 CLR 46

community was that they all owned tramways used for passenger traffic. Under these circumstances it seems to me to be prima facie, if not impossible, at least in the highest degree improbable that a dispute between the employers and employees in any one [No. 2].

State as to the details of conditions of employment should extend to any other. I understand that I am bound by the decision of this Court in The Builders' Labourers' Case 1 to assume that such an extension is, in the abstract, possible. But if it should appear, as it does in this case, that all the matters involved in an alleged dispute are in fact as to local conditions, I do not think that I am bound to hold that there is a single dispute extending beyond one State, however earnestly the parties on one side may have striven to bring about such a dispute.

During the progress of the hearing of the plaint all the respon- dents to the plaint except the present applicants were either dismissed from the suit or entered into negotiations with their employees.

I quote from the judgment of the learned President 2 " "In this case, I am happy to say that after long negotiations, and some references to myself as a mediator on details, agreements either have been made, or will probably be made, between the claimant and the following respondents:-The Melbourne Tramway and Omnibus Company Limited, the Hobart Tramway Company Limited, the Prahran and Malvern Tramway Trust, Meakin &Thomas (Northcote), the North Melbourne Tramways Company, the Electric Supply Company of Victoria, the Perth Electric Tramways Limited, the Fremantle Municipal Tramway Board. In pursuance of sec. 24, a written memorandum of the terms of each contract is to be certified by me, and filed in the office of the Registrar and the memorandum will have the same effect as an award."

It appears that most of the agreements were not actually signed until after the date of the award, although they were all retrospective, and, with one exception, were to have effect from a date antecedent to the award. The representatives of the several respondents to the plaint except those of the present applicants had, however, practically withdrawn from the proceedings as

118 C.L.R., 224. 26 C.A.R., 130, at p. 142. 19 CLR 47

soon as the terms of agreement had been substantially agreed to. Under these circumstances I think that the dispute, if any, was no longer a pending dispute at the date of the award except as regards the States of Queensland and South Australia. At the date of the award or awards, therefore, the only employees really represented by the claimant organization (if any) were those of the Brisbane Tramways Company and the Adelaide Tramways Trust.

In my opinion it is essential to the jurisdiction of the Common- wealth Arbitration Court to make a valid award that there should be in existence when it is made an industrial dispute extending beyond one State. I do not think it necessary to state at length my reasons for SO obvious a conclusion. It is sufficient to say that, in the contrary view, any industrial dispute whatever, how- ever purely local in character, might with the exercise of very little ingenuity be brought within the jurisdiction of the Court.

With these introductory observations I proceed to deal with the relevant facts of the case, none of which are, substantially in controversy.

In this, as in many other recent cases, the existence of the alleged dispute depends almost entirely, if not altogether, upon the effect of sending to employers a log or schedule of claims. Such a log was twice sent in this case, first on 5th May 1911, and secondly on 8th September 1911, each being accompanied by a letter asking to be informed within seven days whether the employers would adopt the log or grant a conference for the purpose of discussing it with a view to entering into an indus- trial agreement based upon it, and stating that failure to reply within that period would be taken as a refusal to agree to either alternative.

No reply having been sent to either demand, the plaint was filed on 26th October 1911. The applicants contend that apart from this demand there is no evidence of the existence of any industrial dispute extending beyond a single State to which they were parties.

Sec. 22 of the Commonwealth Conciliation and Arbitration Act prescribes that no industrial dispute shall, without the approval of the President, be submitted to the Court by an

19 CLR 48

organization without a certificate from the Registrar (1) that the

consent of the organization has been given in manner prescribed by the rules of the organization, or (2) that such consent has been given by resolution of a general meeting of members con- [No. 2].

vened in the manner prescribed by its rules or as the result of a poll of members taken in the prescribed manner, or (3) that consent has been given under the hands of a majority of the committee of management of the organization.

By the law in force in October 1911 (sec. 4 of the Principal Act) the term "industrial dispute" was defined to mean "a dis- pute

arising between an employer or an organization of employers on the one part and an organization of employees on the other part." The qualifying words beginning with "arising" were omitted by an amending Act which became law on 23rd November 1911, after the filing of the plaint, but they govern the present case. The term "organization" was defined as meaning a registered organization.

On 25th October 1911 Mr. A. C. Warton, describing himself as general secretary of the claimant organization, made an affidavit in which he deposed that he had been general secretary of the organization from 10th February 1911, and as such was the proper officer to take and keep the minutes of meetings of the organization and of the executive and all committees thereof, and had in fact kept such minutes. He also deposed that the consent of the organization to the submission of the dispute to the Arbi- tration Court had been given by a body calling itself the "Executive" of the Association passing a resolution to that effect, that being the manner prescribed by the rules of the organiza- tion, at a duly convened meeting of the Executive held at Mel- bourne on 4th September 1911, of which resolution an alleged copy was set out, which he swore to be a true and correct copy. On the faith of this affidavit the Registrar gave a certificate fol- lowing the words of the affidavit. On cross-examination before this Court Warton admitted that he had not compared the alleged copy with any original, and said that the affidavit was sent by the Association's solicitors in Melbourne to him in Sydney to be sworn, and that he swore it accordingly. A book, purporting to be the minute book of the Association and of its Executive, was

19 CLR 49

produced, which contained minutes of meetings of what was called the "Federal Council" (of which I shall have something to say hereafter) on 29th August and 6th September, and a minute of a meeting of the Executive on 16th September, but did not con- tain any record of a meeting of the Executive on 4th September, or of the passing of any such resolution as that sworn to on that or any other day.

No explanation has been offered of the absence of any original record of the resolution, if it was ever passed, nor any evidence of the existence of any such record, or of any document from which the alleged copy set out in Warton's affidavit was made. It was said that such an explanation could be given, but as it appeared (as will hereafter be shown) that the so-called Executive had no authority under the rules of the organization to authorize the submission, the matter was not further pursued. It appeared, however, that the minutes of a meeting of a body calling itself the "Federal Council," held on 29th August, contain a record of three resolutions, two of which are to the same general effect as the alleged resolution of the Executive of 4th September.

It will hereafter appear that neither the so-called " Federal Council" nor the persons who called themselves the Executive" had any authority under the rules of the claimant organization to act on its behalf in bringing the alleged dispute before the Court, and the applicants contend that under sec. 22 of the Arbitration Act this is a fatal objection to the jurisdiction of the Court to entertain the plaint. I will state, as briefly as I can, the relevant facts established by the evidence on which they rely in support of this contention.

There had been in existence in the State of New South Wales for several years a union of tramway employees, of which Warton, already mentioned, was the general secretary. In that State, however, as all the tramways are, with a trifling exception, the property of the State, the employers are not amenable to the jurisdiction of the Commonwealth Arbitration Court.

In May 1910 it was proposed by the New South Wales union to form a federation of all tramway employees in the Common- wealth, with the avowed object of making a common demand upon their employers in all the States, and then invoking the aid

19 CLR 50

of the Commonwealth Court of Arbitration, which it was con-

fidently expected would regard their claims favourably. Although the New South Wales employees could not directly become parties to such a claim, they thought that the New South Wales Rail- [No. 2].

way Commissioners would be practically obliged-it was said, indeed, that they had promised-to adopt the better terms expected to be granted by the Commonwealth Court. With this view a conference was called and held in Sydney in that month, which was attended by representatives of the New South Wales union and of unions of tramway employees in South Australia and Western Australia. The Queensland and Tasmanian em- ployees were not represented. The conference was also attended by a former tramway employee from Victoria, where up to that time no union had been formed. It was resolved by the con- ference to form a tramway federation by the name of the Australian Federated Industrial Organization of Tramway Workers," and a constitution was drawn up and submitted to the unions in South Australia and Western Australia for approval. It is alleged that the South Australian union formally adopted it at a meeting held on 6th July 1910, but the Western Australian unions do not appear to have done SO formally.

Officers were appointed of this body, Mr. H. Lawton, president of the Sydney union, being president and Warton being secre- tary.

About August in the same year an independent movement was started in Victoria by a Mr. Prendergast, then an employee of the Prahran and Malvern Tramway Trust, which was made a respondent to the plaint now before us. Prendergast, who had very recently entered the service of the Trust, left it shortly afterwards. In September the employees of that Trust resolved to form a union. In October Prendergast, who had been away from Melbourne, came back and resumed his operations, with the result that on 6th November an association was formed, by the name of the Australian Tramways Employees' Association, of which Prendergast was elected president and Mr. H. J. Duke secretary, and it was resolved that the Association should be registered as an organization under the Arbitration Act.

Sec. 55 of the Act prescribes the conditions on which an

19 CLR 51

association may be registered as an organization, some of which, set out in Schedule B, are that its rules must provide, inter alia, for (a) a committee of management and officers, and (b) their powers and duties, (f) the power of bringing industrial disputes before the Court, (g) the times when and terms on which persons shall become or cease to be members, (m) the repeal and altera- tion of, and addition to, the rules. The application for registra- tion is required to be in duplicate and accompanied by two copies of the rules of the Association. Other conditions may be, and were, prescribed by regulations of the Governor-General in Council.

The rules adopted on 6th November were lodged on the 9th with an application for registration. By statutory regulations made under the authority of the Act (Statutory Rules 1910, No. 3) it was prescribed that before registration of an association as an organization the Registrar should give thirty days' notice of the application by advertisement, during which time any person might lodge objections to registration, which were to be heard and determined by him before registration. On registration the association becomes a corporation (sec. 58).

By these rules the Association was to be open to all employees in the tramway services of Australia (rule 2). By rule 3 one of the objects of the Association was declared to be the establish- ment of branches, but the rules did not contain any provision as to the mode of establishment. Rule 5 provided that the affairs of the Association should be managed by a Board, to be called the Committee of Management, and consisting of the president, two vice-presidents, treasurer, and general secretary (called executive officers), and five members of committee, five to form a quorum. The Committee of Management was to have full power to govern the Association according to its rules (rule 8A).

Rule 10A, bearing the statutory heading The times when and terms on which persons may become or cease to be members," provided that Any competent person on making application to the general secretary and being approved by him and unless and until vetoed by the Committee of Management shall on paying the entrance fee be enrolled a member of the Union."

Rule 22 provided that before any industrial dispute was sub-

19 CLR 52

mitted by the Association to the Commonwealth Court of Arbi-

tration the Committee of Management should submit the matter for the decision of the members. Rule 23 provided that decision of the members might be obtained either at a general or [No. 2].

special meeting, or by ballot. Rule 27 was as follows:--" No new rule or any of the rules herein contained or hereinafter to be made shall be amended altered or rescinded unless notice to that effect be sent to the general secretary to be laid before the Com- mittee of Management directly stating such alteration." The mode of making additions to the rules was not otherwise stated.

It will be important to bear in mind four fundamental pro- visions of these rules:-(1) The governing body was a committee of management (presumably elected by the members in general meeting) with a quorum of five; (2) application for membership was to be made to the secretary (3) the question of sub- mitting any industrial dispute to the Arbitration Court was to be submitted (a) by the Committee of Management, (b) for the deci- sion of the members, (c) to be obtained at a general or special meeting or by ballot; (4) new rules could not be made without notice to the general secretary, to be laid before the Committee of Management. It will be found in the sequel that every one of these provisions was entirely disregarded in the institution and submission of the alleged dispute.

On the same 9th November a representative of the New South Wales Federation came to Melbourne with a view of inducing Melbourne tramway employees to join that Federation. He entered into communication with Prendergast, who suggested that the New South Wales men should join his new association. Shortly afterwards, Lawton, the president of the New South Wales Federation came to Melbourne with the same object. A compromise was arranged to the effect, in substance, that the Federation should take the name 'Australian Tramways Em- ployees' Association," and that the newly formed association of that name should become a branch of it. Lawton had with him a copy of the federal constitution drawn up and adopted at the Sydney conference of May. The mode proposed for giving effect to the arrangement was that the Australian Tramway Employees' Association, whose application for registration was then pending,

19 CLR 53

should adopt in globo the New South Wales Federation constitu- H. tion as an addendum to its own. At a meeting of the Association held on 22nd November it was resolved that the rules be amended

by the addition of the federal constitution."

The document described by this name was practically a tran- script of the rules drawn up for the federation proposed and agreed to at the New South Wales conference of May 1910, with one addition (sub-rule 37). It was called collectively rule 28, and was divided into 37 sub-rules. It was headed "Federal Consti- tution: The Australian Tramway Employees' Association." Rule 1 consisted of the name "The Australian Tramway Employees' Association." Rule 2 provided that the Federation should include all employees of the various tramway systems throughout the Commonwealth. The objects of the Federation, which were declared by rule 3, included the establishment of branches of the Federation. Rule 4, under the heading " Federal Council," pro- vided that the government of the Federation should be vested in a council composed of representatives of branches, the number varying according to the membership of the branch, and that the functions of the Federal Council should be to administer the rules of the Federation for the benefit of its members and to endeavour to carry out its objects.

Rule 5 provided that the officers of the Council should consist of a president, two vice-presidents, treasurer and secretary. The Executive" was to consist of the president, two vice-presidents, treasurer and secretary, with power to any State not represented on it to appoint a member with equal power to any of the officers named (rule 6). Rule 22, corresponding to rules 22 and 23 of the rules adopted on 6th November, provided that before any indus- trial dispute was submitted by the Federation to the Common- wealth Arbitration Court the Committee" (which apparently means the Executive) should submit the matter for the decision of the members, to be obtained either at a general or special meeting or by ballot. Rule 23 provided that there should be one branch of the Federation in each State. Rule 33 provided that no rules should be amended or rescinded but at a conference at which the several branches were represented, and that notice of any alteration should be sent to each branch at least one month

19 CLR 54

before the conference, whereupon the branches were to instruct

their delegates how to vote. Alterations decided upon by a majority vote of the conference were to be binding after approval by the 'Registrar of Industrial Unions" (a phrase used in the [No. 2].

New South Wales industrial laws, but inapplicable to organiza- tions under the Commonwealth Act).

Rule 37 was as follows Until a conference representative of two or more branches shall have otherwise determined the powers and duties of the Council shall be exercised by the Asso- ciation in general meeting assembled, and the powers and duties of the Executive shall be exercised by the Committee of Manage- ment. Until such determination as aforesaid, in the event of an inconsistency in the federal constitution with the rules of the Association, the rules of the Association shall prevail, and there- after the federal constitution shall prevail."

A printed copy of this document (which I will call the "federal constitution") was left at the Registrar's office, and was brought before that officer when he held a sitting to consider objections which had been lodged against the registration of the Associa- tion. He was asked by the applicants to take the new rules into consideration, but, very properly, refused to do so, on the ground that the rules lodged with the application were the only rules that he could consider. The application for registration was then granted (on or about 13th December) upon these rules, and a certificate of registration was granted on 5th January 1911. Shortly afterwards a verbal application was made to the Regis- trar that the rules of 22nd November might be filed as an amendment of the rules of the organization. The copy of those rules which had been left at the registry was then attached to the original rules, but no record of any sort was made of the transaction.

The Court during the argument announced, on 22nd June (my brother Isaucs dissenting), that in its opinion the attempted amendment was ineffectual, and that the constitution of the claimant organization consequently remained as declared by the original rules until altered in accordance with them. I will state briefly the reasons which led me to that conclusion, in which I

19 CLR 55

understood my brothers Barton, Gavan Duffy, Powers and Rich to concur.

In my opinion it follows from the provisions of the Act to which I have referred that the constitution and powers of an organization when incorporated are, at any rate SO far as regards matters as to which rules are imperative, such as are defined by the rules on the faith of which registration and incorporation is obtained. Such an organization cannot therefore make any alteration either in its constitution or its powers with respect to the matters which are required to be contained in the rules as a condition of registration except in the manner prescribed by the rules themselves. I think further that any such alteration must be made by the corporation itself after it has been incorporated. In any other view an association formed for one purpose might after the application for registration be converted into an associa- tion having quite different objects, of which no notice had been given as prescribed by the regulations, and the provision of the regulations requiring thirty days' notice, which is a condition precedent to registration, would be nugatory.

No alteration of the original rules has in fact ever been made in the manner prescribed by them, although two attempts were made to alter them under the provisions of the supposed federal constitution.

In considering the next step taken it will be convenient to bear in mind that the so-called federal constitution provided that the government of the Federation should be vested in a council, called a Federal Council, comprised of representatives of branches, and that there should be one branch of the Federation in each State. It did not, however, contain any provision as to the mode of establishing branches.

In June 1910 Warton had communicated with one Campbell, an employee of the Brisbane Tramways Company, asking him to get up an agitation in Brisbane in favour of joining the Federa- tion agreed to at the Sydney conference of May. On 3rd November of the same year he had again written to Campbell, pointing out the necessity of obtaining at least 100 members in order to obtain registration of an association as an organization when, he said, 'the Arbitration Court can be moved."

19 CLR 56

Lawton, having accomplished his work in Melbourne, went on to Adelaide in South Australia, where a trade union called the "South Australian Tramway Employees' Association" had been in existence for some years. A meeting of " all tramway employees" [No. 2]

was called for 27th November. A circular calling the meeting stated that the business of the meeting would be "Federation, and in particular (1) to extend a welcome to Lawton, presi- dent of the New South Wales Tramways Union (2) to adopt federal constitution submitted to the federal Registrar (i.e., the rules of 22nd November) (3) to arrange conference of the States to draft claims for wages, hours and general working conditions of the tramway employees to be referred to the Federal Arbitra- tion and Conciliation Court." A meeting was held on 27th November, but, not being considered sufficiently representative, was adjourned to the 30th. A record purporting to be a record of the proceedings of the meetings of 27th November and 30th November is contained in the minute book of the South Austra- lian Tramway Employees' Association. The minutes in that book are in all other cases headed Minutes of the Tramway Employees' Association," or to the like effect. Those of the meeting of 27th November are headed " Mass Meeting of Tram- way Employees," and those of 30th November Minutes of Meeting held on November 30th." These minutes record that at the meeting of the 30th, after speeches from Lawton and others, it was resolved that the name of the Federation" (i.e., the name which had been adopted by the Sydney conference of May) be altered to read thus: That the Federation be known as the Australian Tramways Employees' Association." Opposite to the end of the entry of this resolution the word 'Carried " was written in the margin, and there followed a statement that the meeting closed with cheers for Lawton and the New South Wales Tramway Association. So far, it would appear that this was a record of a meeting of " all tramway employees," and that the "Federation" with which the meeting was dealing was that then recently formed in New South Wales.

At a later date the words "and that this Association be the South Australian Branch thereof" were interpolated in different ink after the word "Carried." Prendergast says that the inter-

19 CLR 57

polation was made in 1912, preparatory to the hearing of the plaint before the President, when it was thought essential to the success of the claimants to show that the South Australian Tramway Employees' Association had become a branch of the claimant organization (which had not at the date of the meeting been registered). There is no doubt, as will appear from the pro- ceedings next to be narrated, that it was then thought essential to do SO. There is no other record showing that the South Austra- lian Association ever became a branch of, or that this resolution was even communicated to, the claimant organization. It is to be noted that the interpolation treats the meeting as a meeting of the South Australian Association and not as a mass meeting of "all tramway employees." The only answer attempted to Prendergast's allegation as to the time of making the inter- polation is extremely unsatisfactory. Moreover, before it was produced to the President, both Prendergast and Warton had sworn that the members of the alleged branches had come in individually and not by branches. I arrive at the conclusion, notwithstanding affidavits made to the effect that a resolution was passed in those terms, that the interpolated words, which are-to use a phrase used in discussions as to authenticity of documents-of a tendential character, are not authentic, and do not record an actual fact.

In support of the statements of Prendergast and Warton just mentioned, evidence was adduced to show that a South Aus- tralian branch of the claimant organization had been in fact established by the admission of a large number of South Aus- tralian employees as members of it.

The alleged applications for membership first made by Adelaide employees were made upon printed cards headed "S.A. Tramway Employees' Association," followed by the words Federated throughout the Commonwealth Representing about 10,000 Tramway Employees." The applicant applied for membership in the South Australian Tramway Employees' Association." The card bore the printed signature of the secretary of that Associa- tion, and stated as the entrance fee and monthly contributions sums which were those of that Association, and different from those of the claimant organization. About May 1911, i.e., about

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the time when certain rules alleged to have been adopted by an

assemblage held in February of that year, and to which I shall have occasion to refer at length, were filed, another form of application was printed, which was signed by a large number of [No. 2].

South Australian employees. This form was headed "Australian Tramway Employees' Association, South Australian Branch," followed by the words Federated, &.," as before, and the appli- cant applied for membership in the South Australian branch of the Australian Tramway Employees' Association, but the original form was still in use up to 1912. None of these applications were sent to the secretary of the claimant organization, as required by rule 10A, until after the filing of the plaint. During the hearing of the case, when it was desired to take advantage of sec. 21A of the Act, which provides that a certificate of the Registrar that any specified persons were at any specified time members of any specified organization shall be conclusive evi- dence that the facts are as stated, a large number, if not all, of the first set of cards were altered by erasing the letter "S" and the word "South." In some cases the signature of Duke, the secretary of the claimant organization, and, in others, that of Warton, was added. On the faith of these altered cards and the cards of May a certificate was obtained from the Registrar that the persons named in it were members of the organization on 16th October 1911, a day preceding the filing of the plaint. Upon the evidence I cannot entertain any doubt that the persons who signed the first form intended to become members of the South Australian Association, and I have equally little doubt that they did SO in the belief that it was a branch of a larger federa- tion. Indeed, several of them made affidavits to the effect that they intended to join a federal union having branches in the several States, and not a local union. Nor can I doubt that signatories of the later form also believed that they were apply- ing to become members of an association of that character. Whether they did or did not intend to become members of the claimant organization in the belief that it was such a federal association, it is hardly necessary to point out that a man cannot become a member of a corporation merely by desiring or intend-

19 CLR 59

ing to do SO, or that a branch of a corporation cannot be com- H. posed of persons who are not members of it.

From Adelaide Lawton went to Brisbane with the same pur- pose, where he represented that by joining the Federation tram- way employees would be able to submit a claim to the Arbitration Court, the President of which, he said, was sure to be sympathetic. By these representations and other arguments he induced many of the employees of the Brisbane Tramways Company, which up to that time was on the best of terms with its employees, to agree to

form a branch of the Federation. On 13th December Warton sent to Brisbane forms of application for membership. The form was headed 'Federal Constitution of the Australian Tramway Employees' Association," and the applicant applied to become a member of "the above Association." About 400 of these forms were signed, but none of them came into the posses- sion of the secretary (Duke) of the claimant organization until after the plaint was filed. The persons who had signed them, however, called themselves the Queensland Branch of the Aus- tralian Tramways Employees' Association.

The circumstances under which these forms were sent are dis- closed by Warton's letter accompanying them, in which he said, amongst other things, that the registration of the federal Associa- tion had been approved by the federal Registrar "SO that abso- lute protection is afforded the employees who join the Federation." He went on to say:-" We intend to convene a conference of tram- way workmen from all the States in the Commonwealth who will discuss all industrial matters affecting the industry. We will then submit claims to the Federal Court re wages, hours and general working conditions of the employees. We are very hopeful that a satisfactory award will be given by the Judge of the Court." He enclosed the forms of application for signature, adding that the branch would have to contribute 1s. per member to the Federation per annum to meet the expenses in connection with the proposed conference.

No applications for membership were forwarded from Western Australian employees until late in 1911, and there is no evidence that any came from the Tasmanian employees.

It is abundantly clear from the facts which I have stated that

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the main, if not the only, purpose for which the Federation was

to be formed was to formulate joint claims to be submitted to the Commonwealth Arbitration Court. It was at that time supposed by many persons that the making of a joint claim by employees [No. 2].

engaged in any industry in two or more States, followed by the refusal of the claim by the employers, was sufficient to constitute an industrial dispute extending beyond one State, and there- fore within the jurisdiction of the Court, provided that certain formalities prescribed by the Arbitration Act were duly observed.

It will be remembered that under the so-called federal consti- tution the government of the organization was to continue to be vested in the general committee until a conference representative of two or more branches should have otherwise determined (rule 37). For this purpose it was necessary that there should be branches whose representatives could meet in conference.

The subsequent proceedings were admittedly based upon the assumption (which I have shown to be erroneous) that the so- called federal constitution had in some way been substituted for the original constitution of the claimant organization, and that branches of the organization had been formed under its pro- visions. In fact, however, as I have already shown, there were no such branches in Queensland or South Australia, or, indeed, in any other State.

On 3rd January 1911 Warton wrote from Sydney, on paper headed "New South Wales Government Tramway Employees' Union," to Prendergast in Melbourne, saying: " Now that regis- tration has been effected we are desirous that a confererice be arranged

to fix up the detail matters in connection with the Federation and to draft claims for submission" to the Arbitration Court. " As a preliminary we suggest that 'your branch draw up claims" (relating to ten different subjects, which he enumerated) " to be submitted to general meetings of the branches for consideration." He asked that typed copies might be forwarded to the "several State unions" (giving the names of the secretaries of the unions), or in the alternative to him.

On 9th January Mr. L. L. Hill, secretary of the South Austra- lian union, wrote to Warton, acknowledging a letter of the same

19 CLR 61

date and containing apparently a similar request, promising to send the log when formulated in Adelaide.

On 23rd December 1910 Warton, purporting to speak on behalf of the whole Federation, had written from Sydney to one Champ in Brisbane with respect to the formulation of claims. In the course of his letter he remarked that "the claims in many respects will be purely local matters," but that on some points there must be unity.

The minute book of the claimant organization, which was put in evidence, contains what purports to be a record of an Executive meeting held on 6th January 1911, at which a resolution was passed "that a Federal Council meeting should be held at Melbourne as soon as possible under the federal constitution to frame a log of wages and claims and re-frame federal rules and elect federal officers, and that the secretary give notice imme- diately to all branches calling meeting except such already notified."

On examination of the minute book it is apparent that this minute was interpolated at a later date. Duke, the secretary, says that he wrote it in 1912. The object of the resolution, if it was passed, or of the interpolation, if it was not passed, was apparently to show a compliance with sub-rule 33 of the so-called federal constitution, but the framers apparently confused the con- ference referred to in that rule with the Federal Council referred to in sub-rule 4. A meeting of the Association itself was held on 8th January, at which it was resolved "that the Executive shall be empowered to call a conference of all the States which have come into the Association, such conference to be held in Mel- bourne and to be formulated in accordance with the federal rules. Such body shall fix a uniform claim with regard to wages, conditions, &., and submit the agreement arrived at to a ballot of the members of the Association." It was also resolved that the Executive be empowered to appoint the representatives on the conference.

A conference was accordingly called for February, but how and by whom it was formally convened does not clearly appear. The circumstances attending the calling of it purport to be fully set out in a statement published in a newspaper called the Rail-

19 CLR 62

OF A. way and Tramway Record, of which Warton was editor and

publisher. This statement, which appeared in the Record of 11th April 1911, was signed by Warton and addressed " to the Federated Tramway Employees of Australia," and he deposed [No. 2].

that it was accurate. It set out that in May 1910 "your union," i.e., the New South Wales union, convened a meeting and formed a conference of all the States which had agreed to join the Federation, that in February 1911 the representatives of the unions met in Melbourne and formulated claims, that the other States (i.e., other than New South Wales) had agreed to invoke the Arbitration Court, and the writer asked the New South Wales men to continue as members of the Federation and give the employees in the other States pecuniary assistance.

The inference which I draw from these facts is that the con- ference was substantially called by the New South Wales officials, whether it was or was not formally convened by the general committee of the claimant organization.

In pursuance of these proceedings an assemblage-I use a neutral word-was held in Melbourne on 8th February 1911 and following days. At the hearing before the President a book was produced and put in evidence, purporting to contain a record of the proceedings of this assemblage. It is headed " Minute Book of the Federal Council and Executive of the Australian Tram- ways Employees' Association." The persons present are recorded as G. L. Prendergast, president; H. J. Duke, secretary J. V. O'Connor and E. Ward, representing Victoria; D. Marshall, representing Tasmania; E. J. Campbell, Queensland; Messrs. Dalzell, Irvine, South Australia; and W. Johnston, West Aus- tralia." The minute goes on to say that there were present as visitors L. L. Hill, secretary South Australian Branch, and Messrs. Warton, Lawton, Chambers and Harding, of New South Wales, members of the Tramway Federation. The minutes further record that after exchange of credentials the election of officers was discussed, and a deputation was appointed to confer with the federal Registrar to ascertain whether there was any objection to the election of the 'Australian Tramway Federation" officers as officers of the Association. It appears that at this time Campbell, Dalzell, and Irvine signed cards of application to

19 CLR 63

become members of the claimant organization, which were, how- ever, attested by Warton and not by Duke, the secretary.

The minutes of the following day, 9th February, record that "the officers of the Federation were declared to be Prendergast, president; Hill and Campbell, vice-presidents; Duke, treasurer; and Warton, secretary." Nominations were then called for the various offices, and the gentlemen mentioned above being the only ones nominated for the offices they were declared elected." Of what body they were elected officers does not clearly appear. If of the registered Association, the election was obviously invalid, not being made by a general meeting of members. If of or by the supposed Federal Council, the election was equally invalid, since the persons present at the meeting did not constitute a Federal Council, the composition of which is defined by sub-rule 4 of the federal constitution. As there were no branches there could not be any delegates of branches.

The explanation given by Warton is that the assemblage was of a dual character, being (1) a meeting or conference of repre- sentatives of the branches of the Federation formed in New South Wales in May 1910, of which the persons named were elected officers at the meeting of 8th February, and (2) a meeting of a Federal Council of the Australian Employees' Association under the federal constitution.

The minutes were evidently framed SO as to record the pro- ceedings of the assemblage from the latter point of view.

The minutes of 10th February record that the secretary brought forward proposed rules as follows (the rules being set out), and that they were adopted subject to approval by the federal Registrar, and the secretary was "instructed to inquire as to such and to register the rules." The second of these rules proposed to change the constitution of the Association SO as to include all persons engaged in or connected with the transport of goods or passengers in the Commonwealth, excepting convey- ance by sea and excepting horse-drawn vehicles other than on rails. It is now conceded that such a radical change in the constitution of the Association was unauthorized by the Act.

In adopting these rules, if they were adopted, the provisions of sub-rule 33 of the federal constitution were altogether dis-

19 CLR 64

regarded. There were, as already said, no branches, and notice

of the intended alteration of rules had not been sent to anyone.

The minutes of the meeting of 11th February 1911 record that "the claims as formulated by the delegates were read and [No. 2].

adopted, the secretary being instructed to forward them to the branches for consideration, and that he on receipt of any com- munication from a branch of suggested amendments of the claims or any additional claims should refer them to the Executive, who have power to incorporate such in claim. When checked the claims to be immediately forwarded to the several branches in order to obtain the signatures of employees of the respective tramway companies to such claims. The Executive to be empowered to submit such claims to the employers for accept- ance, and failing acceptance

to take the necessary steps for submission of the said claim" to the Arbitration Court.

It was also recorded that it was resolved "that the branches be informed that the constitution as amended would be sub- mitted to a legal firm for the purpose of ascertaining its legality, and steps will then be taken to submit the rules for registration when copies would be available for the branches ;" further, that the federal Executive should exercise all the powers of the Council until its next meeting, which was appointed to be held in February 1912, or such other time as might be appointed by the Executive after consulting the branches.

Finally, a resolution is recorded adopting the rules as passed, and declaring them to be the rules of the Association, and form- ally adopting the claims as framed. This last resolution is on a slip of paper pasted into the book over a formal entry of the closing of the Council. These minutes, with another to which I shall have occasion to refer, were put in evidence before the President by Prendergast, who conducted the case for the claim- ants, as genuine minutes of the meetings which they purported to record, and as proof of the due submission of the plaint to the Court. They were typed on sheets of foolscap paper put together in a cover. After the award was made Prendergast disclosed to the applicants the fact that they had in fact been compiled just before the opening of the case, and that they were typed by Mr. Rundle, a solicitor, at his dictation, and he made an affidavit to

19 CLR 65

that effect. The fact is not denied by the respondents, but they filed an affidavit made by Warton, in which he swore that he had checked the minutes typed by Rundle with the original minutes of the Federal Council meeting of February, and that they were true and correct records "SO far as they go" of the business transacted at the meeting. He further swore that rules as set forth in the minutes were the rules as adopted by the Federal Council meeting of February, as drafted by solicitors in accordance with instructions given to him by the meeting and as confirmed and adopted by the federal Executive in April 1911. He said, further, that a record of the proceedings was published in the Railway and Tramway Record of 28th February, a copy of which was exhibited to his affidavit.

On cross-examination, on being asked what had become of the original minutes with which he said he had checked the minutes typed by Rundle, he said that they were rough notes taken by himself, which he had handed to Prendergast about October 1911 together with a typed document in which they were expanded and put in order. He produced a typed document, which, he said, was a copy of the one which he had given to Prendergast, and which is very far from being a copy of the minutes put for- ward as genuine at the hearing of the plaint. He also swore that the rules, which, according to the minutes, were then adopted, were revised by solicitors, and finally adopted at a meeting of the Executive Council held in April. A minute purporting to record the proceedings of this meeting, and which, like those already mentioned, was dictated by Prendergast to Rundle, was put in evidence before the President, but contains no record of such adoption. On 17th May a document purporting to be these amended rules was lodged with the Registrar. A copy of it is inserted in the minutes of February, but it is admitted that the rules were to a very great extent redrafted and amplified by the solicitors, and that the document SO lodged is not a copy of the rules which were before the Federal Council.

The minutes published in the Railway and Tramway Record, which may be regarded as contemporaneous, are headed Aus- tralian Tramway Employees' Association," and purport to record the "deliberations and decisions of Annual Conference, Melbourne,

19 CLR 66

Victoria, held on February 7, 8, 9, 10, 11, 1911." The representa-

tives of New South Wales, and Hill, who came from South Aus- tralia, are named as members of the conference, and not as visitors. The first business was the election of officers, as stated [No. 2].

in the other minutes. The resolutions arrived at are stated as resolutions of "this conference, representative of Victoria, Queens- land, Tasmania, South Australia and Western Australia," and it is recorded that the conference adopted the rules and constitution of the Australian Tramways Employees' Association as formu- lated by the Committee, and instructed the Executive to register the constitution as amended also that the conference adopted the "Scale of wages, hours of duty and industrial conditions as submitted by the Committee," and instructed the Executive of the Association to take all necessary steps for submitting it to the various employers for adoption, and, in the event of refusal, to take the dispute to the Federal Arbitration Court for settlement.

Warton also exhibited to his affidavit a copy of the Railway and Tramway Record of 23rd May, containing what purported to be a copy of the minutes of the Executive in April, which con- tains no mention of the approval of the rules as altered by the solicitors.

No record of the proceedings of the assemblage of February was made in the minute book of the claimant organization, as might have been expected if it was really a meeting of that body.

The conclusions of fact which I draw from this evidence are:

19 CLR 67

rules or by a Federal Council.

The record in the contemporary minutes published in the Railway and Tramway Record of 28th February that the rules were adopted by the conference suggests that the compiler had in mind the requirement of sub-rule 27 of the federal constitution, the provisions of which, however, as I have already said, had been entirely disregarded.

The result of all these proceedings, from whatever point of view they are looked at, is that the persons appointed as a federal executive council were never validly appointed as officers of the claimant organization, and never had any authority to act on its behalf.

The importance of the requirement that a plaint must be pre- sented to the Court by, i.e., by the authority of, an organization, is emphasized by the provisions of sec. 24 of the Act, which pro- vides that if an agreement is made between the parties as to the whole or any part of the dispute a memorandum of its terms shall be made in writing and certified by the President, and when cer- tified shall be filed in the office of the Registrar, and unless other- wise ordered shall as between the parties to the dispute have the same effect as, and be deemed to be, an award.

The rules supposed to have been adopted by the so-called Federal Council and finally adopted by the Executive, i.e., the rules a copy of which was inserted in the minutes of 10th February, were registered on 17th May. By these rules it was provided (rule 30) that a quorum of the Executive should be formed by the presence of the general secretary and the president, or either of them and some other member, and that the submission of indus- trial disputes to the Court should be made by the Executive passing a resolution to the effect that it should be submitted (rule 53). Thus all authority was to be practically concentrated in the hands of a small junta of agitators.

The promoters of the dispute, having thus, as they thought, concentrated full authority in their own hands, proceeded to serve a log of demands upon employers in all the States except New South Wales and Western Australia, and on 10th July Prendergast and Warton signed and filed a plaint. It is said that it then occurred to the promoters that it was desirable that the plaint should include Western Australia also, and application for leave to withdraw it was made to the President and granted.

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About this time doubts appear to have arisen as to the validity of the rules of February or May, and as to the due observance of the formalities supposed to be requisite for the due creation of an industrial dispute extending beyond one State, which doubts [No. 2].

I am disposed to think contributed to the withdrawal. Various steps, which form the last chapter of this curious history, were then taken to validate the proceedings.

At a meeting of the so-called federal Executive held on 2nd July it was resolved that "the plaint at present before the Court" (it was not in fact filed till the 10th) be withdrawn, and that Messrs. Prendergast and Warton be instructed to act accordingly and to then re-serve all the employers and re-file the plaint. Further that the rules of the Association be amended as recommended by the President and that the whole be indorsed as amended. Further that the Executive authorize the summon- ing of the Federal Council for 28th August to deal with these two items of business." (This last resolution was apparently passed in attempted compliance with rules 9A and 33 of the federal constitution, or a similar provision in the rules registered on 17th May.) It assumes the existence of branches lawfully constituted by whom representatives could be appointed. But it appears to confuse the Federal Council, which had no power to alter rules, with the conference referred to in rule 33, by which alone under the federal constitution the rules could be altered.

A meeting of the so-called Federal Council was accordingly held on 28th August, at which a new set of rules was adopted, which were filed in the registry on 5th September. They, like the rules registered on 17th May, provided (rule 53) that disputes should be submitted to the Court by resolution of the Executive, a quorum of which was to be constituted as in those rules pro- vided. At a meeting held on the following day the action of the Executive at the meeting of 2nd July was confirmed, and they were directed to take immediate steps to re-serve the log and take all necessary steps to bring the matter before the Court.

At another meeting held on 6th September after filing the new rules resolutions in the same words were again passed.

Finally, at an Executive meeting held on 16th September, and consisting of Prendergast and Duke, it was resolved That the

19 CLR 69

action of the Federal Council on the 11th day of February 1911 be and is hereby confirmed and approved, and resolved that the rules of the Association adopted by the Federal Council on the 11th day of February 1911 be hereby adopted and confirmed as the rules of the Association from the said 11th day of February to the 5th day of September 1911, and that all acts, deeds or things done by the Association, its Council or Executive Branches, Divisions, Officers or Members thereof under or in pursuance of or in accordance with or otherwise based on such rules from the said 11th day of February be and are hereby confirmed and ratified."

The utter futility of this resolution is apparent. At best it was an attempted ratification by unappointed agents of their own appointment and their own unauthorized acts.

A resolution in the same terms and open to the same comments was passed at a meeting of the Federal Council held on 16th October.

The log was, as I have already said, sent in September 1911 for a second time to the employers, including those in Western Australia, and on 26th October the plaint was again filed by the authority of the supposed Executive.

I have already pointed out that the original rules of the organization were the only ones that ever had any validity. Even if those of 22nd November (the so-called federal con- stitution) were valid, the attempted alteration of them by the assemblage of February was invalid for the various reasons already pointed out. Those registered in September were equally invalid.

A book was produced to the Court, which contained rough notes unsigned, purporting to record the proceedings of two meetings of Victorian employees held in Melbourne on 2nd May 1911, at each of which it was resolved that the meeting 'adopt the log to be served, and appoint Prendergast and Warton to file the plaint and take all necessary steps to bring it before the Court." One meeting purports to have been held in the morning, and the other in the evening. These two entries stand alone in the book. The other end of the book contains minutes duly signed of meetings of the Australian Tramway Employees'

19 CLR 70

Association held in Melbourne, the last entry being of a meeting

held on 27th April 1911.

It is apparent that these two meetings were not either a general or special meeting of the organization within the mean- [No. 2].

ing of rule 23 of its authentic rules. Indeed, they were evidently not regarded as a record of such a meeting. On the contrary, it is apparent that they were regarded as meetings of members of the Victorian branch of a supposed federal association. They could not in any view be regarded as a valid authority to submit to the Court a future dispute which it was only then proposed to create.

The alleged dispute had not, therefore, been submitted for the decision of the members of the Association, as required by rules 22 and 23 of the original rules (and by the identical rule of the federal constitution) nor were the so-called Executive the Com- mittee of Management of the organization.

It follows that the dispute was not submitted to the Court in the manner prescribed by the rules of the organization, and the certificate of the Registrar (upon the face of which that non- compliance appears) cannot alter this fact.

It also follows that the dispute, if any, was not a dispute between the employers and an organization, represented by its authorized agents, but between the employers and a self-ap- pointed body of persons whom I have described as the promoters. Under the law in force when the plaint was filed this fact was a technical bar to its presentation. It is also a very substantial matter in considering the quality of the alleged dispute, which is a much more important question, and which depends not upon the provisions of the Arbitration Act, but upon the terms of the Constitution.

The whole of the proceedings which I have recounted were, in reality, not proceedings of the claimant organization, but pro- ceedings of a voluntary association of persons who had inform- ally associated themselves together for the purpose of instituting a suit in the Arbitration Court, and, as a necessary preliminary to such a suit, of creating an industrial dispute which would in law be regarded as a dispute extending beyond any one State, and who assumed without authority the name of the claimant

19 CLR 71

organization. The dispute, if any, was a dispute between that H. voluntary association and the employers, and the plaint was sub- mitted to the Court not by the authority of the claimant organi- zation but of persons who borrowed its name without legal

It was contended that the rules of the Association on the faith of which it obtained registration are directory and not obligatory, and that it is sufficient that there should be a rule, its observance or non-observance being immaterial. I do not think SO. In my opinion the rules on the prescribed subjects are imperative, and any action of the organization not in accordance with them is a mere nullity.

I am sorry that I have been compelled to occupy SO much valuable public time in unravelling the curious web SO laboriously woven by the promoters in their attempt to establish the exist- ence of a dispute created in due and proper form. I pass to what may be regarded as the substantial, as opposed to the formal, merits of the case.

I will deal first with the alleged dispute in Queensland. When the Brisbane employees, who thought themselves a branch of some federal association, were asked in December 1910 and January 1911 by the New South Wales Federation to formulate their claim for the purpose of compiling a joint log, they resolved to reply "that we are unable as yet to say definitely what we require." They accordingly appointed a committee to draw up a log to be submitted to the Melbourne conference, and the com- mittee did SO. Their draft was adopted by a meeting held on 30th January, and their delegate was instructed to use his own discretion at the conference. The Tasmanian employees did not draw up any draft log, but gave plenary powers to their dele- gate, who was not a Tasmanian. The South Australian Associa- tion adopted a draft log, and a draft appears to have been drawn up by a sub-committee of the Association in Melbourne.

The log adopted at the assemblage of February differed in many most important particulars from any of these drafts. The principle adopted was apparently to embody in it all the claims proposed in any State, whether exclusively applicable to that

19 CLR 72

State or not, and whether or not the question of making such a

claim had ever arisen in any other State.

For instance, the federal log, as it is called, contained 76 separate claims, besides the claims as to wages, of which 31 only [No. 2].

were contained in the Brisbane draft log. Of these 76 claims 40 had either been already granted or withdrawn, or were inapplic- able to the Brisbane Tramway Company, or already in practice. Of the claims regarding motormen and conductors in the federal log 49 were not included in the Brisbane draft and less than half were included in the South Australian draft. The Brisbane draft contained a claim of preference to unionists, which was not contained in any of the drafts sent from the other States, in none of which, indeed, had any claim for preference ever been put forward. The log comprised 72 different classes of employees, of which only 22 were employed in Brisbane and only 27 in Adelaide. The federal log asked for an addition of 10 per cent. for Brisbane employees, which they had not themselves thought of asking, and an addition of 15 per cent. for West Australian employees. It amplified the claim for preference to unionists to a claim for the exclusive employment of members of the claimant organization upon or in connection with the tramways of the respondents or the power employed upon them and the repair and examination of their carriages. Similar amplifications were made with respect to the drafts from other States. When the so-called federal log had been thus compiled, copies of it were sent to the several States for adoption, and it was adopted by meetings held in all of them. The South Australian Association in adopting it resolved that the Committee be congratulated on drawing up "such a splendid code of conditions and wages." This phrase very aptly describes both the purpose of the assem- blage and the quality of the alleged dispute.

The next step was to obtain the signatures of persons supposed to be members of the Association to a document to the following effect :- We the undersigned members of the (Queensland) Branch of the Australian Tramways Employees' Association being employees in the Tramway Industry satisfied with our working conditions do hereby authorize and appoint A. C. Warton General Secretary of the Federal Council

19 CLR 73

of the Australian Tramways Employees' Association of which H. C. OF Association we are members to request our respective employers to grant us the following improvements in our working conditions." The consolidated claims were then set out at length, and the document proceeded :- The said A. C. Warton is hereby duly authorized to receive our respective employers' reply, and in the event of the claims not being granted by the now next the said A. C. Warton is hereby instructed to bring the matter before the Australian Tramways Employees' Association in the manner prescribed by its rules with the request that they submit the dispute arising by reason of non-compliance with the said request made on the respective employers to the Common- wealth Court of Conciliation and Arbitration for determination."

It is apparent on the face of these documents that the signa- tories intended to sign as members of some association of a federal character, of which Warton was the general secretary. The claimant organization was not such an association, nor was Warton an officer of it.

Fortified by these documents, Warton made the desired " request" in May 1911, and filed a plaint which was afterwards withdrawn, as already stated. The renewed request in September was made through the claimants' solicitors. In the plaint the claim for exclusive employment of members of the Association was modified to a claim for preference to them, and a demand of an additional 15 per cent. to Western Australian employees was added, as already stated.

It is worthy of note that the letter of request implicitly assumed that non-compliance with the joint demand would, ipso facto, constitute a dispute of which the Commonwealth Court would have cognizance. And there is no doubt that that opinion was commonly held, and was the basis of all the pro- ceedings I have described.

Up to this time the relations between employers and employees in Queensland and South Australia were, to all outward appear- ance, perfectly amicable.

The conditions in Brisbane are thus stated in the affidavit of Mr. A. G. Stephens, superintendent of the Brisbane Tramway Company. As Traffic Superintendent of the Company it is and

19 CLR 74

always has been part of my duty to appoint all the motormen

and conductors and to supervise and control all the traffic arrangements and to receive all reports and complaints in refer- ence to all matters respecting such employees. My duties [No. 2].

consequently bring me into close daily contact with large numbers of employees of the Company and more particularly with employees engaged in the Traffic Department such as motormen, conductors, signalmen and sweepers, who form the large majority of the Company's employees. A large number of such employees have been on terms of considerable intimacy with me for a number of years, and they have been in the habit of consulting me as to matters respecting their duties and even their private affairs. It has, moreover, been always part of my duty to receive and consider any complaints or grievances emanating from members of the Traffic Department or made against them, whether by Inspectors of the Company or by their fellow employees or members of the public, and to decide upon such matters as in my opinion did not call for consultation with the Manager. All reports from Traffic In- spectors, which reports were made from time to time as occasion arose, were made by the said Inspectors to me as Superintendent,

I have consequently been always in a position to be conversant with the feelings and wishes of the great majority of the Com- pany's employees and to know of the existence of any feelings of discontent or dissatisfaction with wages, hours or other con- ditions of employment on the part of such employees or any of them.

Save as regards the matter of an increase of wages as from the first day of July 1911, the circumstances as to the request for which and the granting thereof are detailed in my evidence before the said Court as appears upon pages 3378, 3379 and 3380 of the transcript Exhibit C of this my affidavit, at no time in the years 1910 and 1911, and except with regard to the question of the right to wear the badge of membership of the Association, which matter is dealt with in paragraph 20 of this my affidavit, at no time in the year 1912 did the employees of the Traffic Department or any of them or of any other department approach me, or as I verily believe the Manager or any other official of the

19 CLR 75

Company, with a request for the redress of any grievance or alleged grievances or the granting of any further privileges with respect to hours, wages or other conditions of labour, or with respect to any of the matters mentioned in the said logs or in the said plaints or any of the matters dealt with by the said award, nor was there save as aforesaid to the knowledge of me this deponent, or as I verily believe to the knowledge of the said Manager or any other official of the Company, at any time dur- ing the said years any dispute between the Company and its employees or any of them with reference to any of the matters mentioned in the said logs and plaints or any of the matters dealt with by the said award.

" At all times during the years 1910 and 1911, and except with regard to the matter of the said badge during the year 1912, the Company and its employees, SO far as the knowledge of me this deponent and I verily believe of the said Manager and of the other officials of the Company extended, were working in perfect harmony, and I this deponent say of my own knowledge that in fact, except with regard to the matter of the said badge in the year 1912, no dispute existed as to any of the matters mentioned in the said logs or in the said plaints or as to any of the matters dealt with by the said award at any time during the said years."

The matter of the badge referred to arose in 1912 after the filing of the plaint, and is not material to this part of the present inquiry.

The conditions in Adelaide are thus stated in the affidavit of Mr. W. G. T. Goodman, chief engineer and general manager of the Municipal Tramways Trust: "Referring to the plaint herein

I say that save and except on the question of the recognition of union officials who are not employees of the Trust and of the wearing of the Association badge and of the time for meal relief on Sundays no demands or requests for or in respect of any of the conditions of work or employment set out in the said plaint have at any time been made by or on behalf of the employees of the Trust to the said Trust or to me, save and except the service of the log as mentioned in paragraph 4 hereof."

He annexed a schedule showing all the requests that had been

19 CLR 76

made by the employees of the Trust from December 1909 to 25th October 1911 and the manner in which they had been dealt with.

The statements of these affidavits are not controverted, nor is it suggested that, apart from the sending of the log in May and [No. 2].

again in September 1911 and the requests set out in the schedule to Goodman's affidavit, any communication of discontent was ever made by the employees in Brisbane or Adelaide to their respective employers. The only answer made is that notwith- standing this apparent peace the employees were in reality discontented with the conditions of their employment, and that this undisclosed discontent, taken in conjunction with the formal log, was sufficient to constitute an industrial dispute extending beyond one State within the meaning of the Constitution.

I will refer later to the nature of the evidence relied upon to show the existence and quality of this discontent. But before doing SO I think it convenient to premise that in my opinion the facts which I have narrated show, unless qualified by other facts, that the true character of the final demands made by the service of the logs was that they were a mere formal joint request for alteration of industrial conditions, not proposed with any inten- tion of insisting upon them but with the hope that some of them would be granted by the Arbitration Court, and that they were prepared in that form because such a joint demand was regarded as a necessary formality, and indeed the only necessary formality, required for the successful invocation of the jurisdiction of the Court. None of the signatories to the documents by which Warton was authorized to make the demand wanted all the things asked for. Some of them really desired some of the things asked for. The majority of them merely wished to get whatever the Arbitration Court would give them, and thought that it was sure to give them something. In short, the pro- ceedings in the Court were regarded as in the nature of an action, and the demand as a notice of action required by law.

In my opinion it is a misuse of language to call such proceed- ings as I have described an "industrial dispute," in the sense in which that term is used in the Constitution.

The evidence relied upon to show that the demand had behind it a great body of undisclosed discontent was confined to conver-

19 CLR 77

sations between the men themselves and not communicated to the employers. Attempts were made to show that both in Queensland and South Australia during the operations of the promoters of the dispute strikes were threatened, and were only prevented by their intervention. It clearly appeared, however, that in South Australia the only cause of the threatened strike was the refusal of the Tramway Trust (dating from 1908) to receive officials of the South Australian Association who were not in their employment for the purpose of discussing matters relating to their employees. In Queensland the employees were dissatisfied with the long delay in bringing the matter before the Court, and threatened to break off all connection with the pro- moters and join a local union called the 'Australian Labourers' Federation," which comprised employees in several industries, and with their support to make independent demands upon the Brisbane Tramway Company, and if necessary enforce them by a strike.

These facts only show that, as I have already said, some of the employees really desired some of the altered conditions asked for, such as increase of wages and shorter hours of labour, but they are in my opinion irrelevant to the question whether the alleged industrial dispute was a dispute within the cognizance of the Arbitration Court.

Upon these facts I am of opinion that there was not in exist- ence when the plaint was filed any industrial dispute extending beyond one State within the meaning of the Constitution, unless the service of the log upon the employers was sufficient to con- stitute such a dispute. I have in other cases given at length my reasons for holding that this is not sufficient.

The argument in support of the contrary conclusion involves, as I understand it, three distinct fallacies: (1) that discontent amongst employees not communicated to employers is evidence of the existence of an industrial dispute (2) that separate dis- putes in different States on different matters can, by mere formal consolidation in a single demand with a threat to take it to the Arbitration Court, be converted into an industrial dispute extend- ing &.; (3) that an intention to persist in trying to obtain an

19 CLR 78

award of the Arbitration Court is material in determining the existence of such a dispute.

In my judgment, therefore, the Arbitration Court had no jurisdiction to entertain the plaint filed in October 1911. [No. 2].

There are other subsidiary objections to the award or awards, some not going to the jurisdiction of the Court to entertain the plaint filed in October 1911, but to its jurisdiction to make the award or awards in December 1912, and some going to its jurisdiction to adjudicate upon some of the matters included in the awards, with all of which I ought to deal.

It is objected that, even if the Court had jurisdiction to entertain the plaint, it had no jurisdiction to make an award in December 1912 because at that date the alleged dispute, if it ever existed, was no longer in existence in Queensland, since all the members of the claimant organization who had been in the employment of the Brisbane Tramway Company at the time of the filing of the plaint had either ceased to be in their employment or were no longer in dispute with their employers. If this is so, the dispute was at the date of the award confined to South Australia, and was no longer a dispute extending beyond one State. I will briefly state the material facts relevant to this objection. At the time of filing the plaint there were between 500 and 600 employees of the Brisbane Tramways Com- pany who claimed to be members of the claimant organization. In January 1912 after the filing of the plaint 480 of these men left their employment under the following circumstances. One of the claims made in the log was that the employees should be allowed to wear a union badge while on duty, to which the Company objected. All the employees had on entering the Com- pany's employment agreed to be bound by all rules and regula- tions published by the Company from time to time. In May 1911 the Company had promulgated a rule forbidding the em- ployees to wear such a badge while on duty. On 18th January some of the employees did SO. Thereupon some of them were taken off the cars and directed to report themselves to the head office in Brisbane, and others were instructed to remove the badges. At an interview with the manager, Mr. Badger, on the same day, he told the men that he did not propose to dismiss them, and

19 CLR 79

It was contended that there was no real dissatisfaction, and that if there was dissatisfaction it was not known or expressed to the employers. If the ex parte statements of Mr. Goodman (Adelaide) and Mr. Stephens (Brisbane) on the application for a rule nisi, referred to by the learned Chief Justice, disclosed the real state of affairs between employers and employees, and the employers had not refused to treat with the organization or its officers, I would agree that there was not dissatisfaction known to the Brisbane respondent at the date of the plaint; but in my opinion it was proved to be incorrect, both by evidence given on behalf of the applicants and on behalf of the respondents. The cablegrams and letters from Mr. Stephens to Mr. Badger, the manager, then in the United States, and his replies, and those referred to by

19 CLR 151

my brother Isaacs, show that he (Mr. Stephens) knew that the H. Company's employees, because of dissatisfaction with their con- ditions, proposed to join this federal Association to assist in enforcing their claims. The 56 witnesses of the claimant organi- zation, without any exception, swore to dissatisfaction with wages and conditions before plaint, and I do not find any evidence to make me disbelieve all those witnesses for the claimants. Mr. O'Halloran, counsel for the Adelaide Trust, said that if the award was upheld it would mean an increased expenditure to the Trust of £20,000 per annum. Accepting counsel's state- ment as correct, the fact that they were receiving £20,000 per annum less than a Justice of this High Court, as President, found that they ought to be paid in Adelaide was surely sufficient to justify dissatisfaction SO far as the Adelaide employees are concerned. The Brisbane Company also informed the President that the claims, if conceded, would greatly add to the cost of the working of the Company's tramways. The evidence, I hold, shows that there was reason for dissatisfaction, that there was dissatisfaction, and that the dissatisfaction was known to the employers before the plaint was filed. The dissatisfaction was not expressed to the Brisbane and Adelaide respondents by the organization before the formal demand in May, because those respondents would neither see nor correspond with the federal representatives of their employees; but it was expressed to the respondents by the officers of the organization in May, and by the solicitors for the organization in September, and for the organization in October 1911 through the president, who asked about a conference to settle the dispute before the plaint was filed.

The real common demands in May and September 1911 allow- ing reasonable time for settlement have been fully referred to, also the three requests for conferences to settle the dispute. The refusals to grant conditions or to confer have also been dealt with, including the decision of several of the respondents in June 1911 to fight the claims.

Was there an intention to persist in the demand and in the refusals ? The evidence of every witness for the claimant organization is definite on that point. They intended to persist

19 CLR 152

in the claims, and did SO, complaining only of the delay, or press-

ing the demands by the organization. In the case of the employees of the two applicant respondents, uncontradicted evi- dence was given that the president of the registered Association [No. 2].

was urgently called to Adelaide and to Brisbane to prevent the members striking without waiting for the proceeding. What they intended to strike about at the time is in dispute, but, what- ever it was, they intended to persist in it, because of dissatisfac- tion, to the extent of striking. The intention of the respondents to persist in the refusal to grant the claims is beyond question, and was never denied. It has been said that the members never intended to press for the log of prices and conditions which they demanded. All the witnesses say they did intend to do SO and with eight out of the ten respondents they succeeded in obtaining by their persistence the log of prices and conditions. In each agreement of settlement quite as many items of the log were granted by the eight respondents as the learned President granted in the award against the other two. am not justified in believing against this evidence and the oaths of all the other witnesses for the claimant organization, that the Bris- bane and Adelaide members did not intend to persist in the log also. They intended to persist in the demand, and did SO to the fullest extent possible (except by an illegal strike in Adelaide) from the date of the first demand up to the present date. I fail to see why an intention to persist in a claim in the only way now authorized by law cannot be accepted as proving a dispute, just as much as a strike proved it before strikes were declared to be illegal and punishable by fine.

If persistence in a claim made with the intention to persist in it before the plaint-and before a Court if necessary-instead of persisting in it by a strike, is not sufficient to prove a dispute under the Act or under the Constitution, it is difficult to con- ceive how disputes are in future to be proved.

I hold there was an inter-State dispute for a common demand in all the five States, which the members of the registered organi- zation intended to persist in, and did persist in, on their own behalf, with the exception of a few items applicable in one State

19 CLR 153

only. These local claims did not form part of an inter-State dis- H. pute, but they did not prevent the general claim being dealt with by the Arbitration Court. See Whybrow's Case 1, to which I refer more fully later on.

Before dealing with the other points to be considered in this particular case I think it my duty, as Deputy President of the Court, to emphasize what has already been said by my learned brother Isaacs with reference to an amendment of the Arbitra- tion Act, and, in the absence of the President of the Court, to refer to what he has already said about the necessity for some action to be taken, and to the means he suggested to remedy the difficulties the Arbitration Court has to contend with. The deci- sion of the Court in this case must be loyally followed, and that fact makes it all the more necessary to refer to the matter. In considering this question it must be remembered and recognized that the Arbitration Act was passed to provide a tribunal for the workers to resort to, instead of striking to enforce demands; and if the intention to persist in a demand, and the persistence in a demand for improved wages and conditions later on, before the Arbitration Court-such as there was in this case-does not prove a dispute within the meaning of the Constitution, surely it is a matter for consideration by Parliament whether the penalties imposed on those who resort to a strike, instead of to the Court, ought not to be abolished, or, in the alternative, that the amend- ments of the Act suggested by my brother Isaacs, and also by the President in his judgment in this case and in other cases to which I intend to refer, should be considered by Parliament.

Take this case as an example of what may happen in any case before the Arbitration Court as the law now stands. Because the members generally did not strike, or do something more to enforce their claims-but only persisted in their claim for increased wages and better conditions before the plaint and before the Arbitration Court, and waited for an award-they are held not to be in dispute and cannot hold their award, and those members in Brisbane who persisted in their claims before the Court, and at the Court, and did strike to enforce part of their claim, are also to lose the benefit of the award because they did

111 C.L.R., 1, at pp. 28, 29. 19 CLR 154

strike and would not wait for the award. Putting it another

way: Those who have persisted in the demands before the plaint, and since then before the Arbitration Court at every stage for nearly three years, to the extent of spending hundreds (if not [No. 2].

thousands) of pounds, are assured now by this Court that they really did not intend to persist in their demands sufficiently to prove a dispute; and those who did strike to get part of their demand, and persisted in the rest of their demand before the plaint and before the Court, are told that they thereby ended their employment and deprived themselves of any right to an award.

The two complaints against the Arbitration Court are (1) the delay in obtaining an award, and (2) the difficulty of retaining it when obtained. The first at least is justified. At the rate the work has proceeded in the past, with one President and two Depu- ties sometimes assisting, the plaints and other applications already filed (one in 1912), without any new work, will-unless the war makes a difference-probably take the Arbitration Court more than a year, with one Judge, to dispose of, although the merits alone could be dealt with in less than half the time. The present case, for instance, was dealt with by the Arbitration Court finally on 21st December 1912. The employees have waited to get the benefit of the award ever since. It is now being finally dealt with, more than one year and nine months after the award was made by the Arbitration Court. Almost every plaint that comes before the Court is greatly delayed by the defence that is raised that there is no inter-State dispute, or no industrial dispute and as the Arbitration Court cannot decide that question at present, the evidence must be taken at great length to see if the Court is justified in proceeding, and to satisfy this Court also later on that there was a dispute extending beyond the limits of one State. An unsuccessful respondent also knows that, even if he does not succeed on prohibition, he prevents the employees from getting the benefit of the award until it is finally dealt with by this Court; and delay is thereby encouraged.

The President has made many attempts to get some opinion from the High Court as to what are the necessary indicia of a dispute, and as to whether facts submitted to the Court in

19 CLR 155

particular cases constituted a dispute, SO as to prevent lengthy inquiry as to the merits if the facts before the Arbitration Court did not, in the opinion of this Court, prove a dispute.

The applications have not been successful, as the High Court holds that it is a question of fact, and not a question of law, whether there is or is not a dispute. Later on, when the same facts are submitted on a motion for prohibition, and then only, the High Court can decide whether there was or was not a dis- pute in fact. I have had the same experience as the learned President. In the Felt Hatters' Case 1 the proceedings were delayed for some months because I thought it necessary, before proceeding to hear the merits, to submit to the Court the ques- tion whether there was a dispute on all the facts the claimant organization submitted or intended to submit to prove a dispute. The High Court declined to answer the question on the ground that it was not a question of law, but one of fact, and decided by a majority that I was justified in proceeding to ascertain as a fact whether there was an inter-State dispute, and proceeding to investigate the merits. I am not complaining of the decisions of this Court. I personally was an assenting member of the Court which gave some of the decisions. The decisions I accept as correct under sec. 31 of the Arbitration Act, which only allows the President to submit questions of law arising in the proceed ings to the High Court. I am only pointing out that the work of the Arbitration Court is further delayed by the Act as it at present stands.

After the decision in this case, in addition to the evidence to be heard on the question of a dispute, much of the time of the Court must also be taken up in future with lengthy and compli- cated evidence and legal arguments as to proper registration of organizations-evidence that rules were legally passed by real members and at the proper time-evidence of membership of the organization, and proof that the members legally joined the cor- porate body as well as the Association-evidence as to legal compliance with the Act and Rules of Court, and proof of strict compliance with the rules of the Association.

In Keates v. Lewis Merthyr Consolidated Collieries Ltd. 2

118 C.L.R., 88. 2(1911) A.C., 641, at p. 643. 19 CLR 156

Lord Atkinson in delivering judgment said :- It is obvious

that this peculiar quasi-parental jurisdiction was conferred in the interest of industrial peace, and should not be hampered by rules of pleading." It must also be remembered that all these legal [No. 2].

technicalities have to be dealt with by an Arbitration Court in which either party to the proceedings has the right-which is generally exercised-to prevent counsel or solicitor or any paid agent from appearing for either party. The danger of preventing the Court from doing useful work because of the difficulty in obtaining an award, and maintaining it when obtained, was pointed out by the President in giving a judgment in August 1911, and again in this case. In his absence I propose to quote what he then said. In giving judgment on 5th August 1911 in the case of the Australian Boot Trade Employees' Federation V. Whybrow &Co. 1 the learned President said I have given merely one instance out of many that could be adduced to show the increasing difficulties of this Court. At present, the approach to the Court is through a veritable Serbonian bog of technicali- ties; and the bog is extending. After full consideration, I must state it as my opinion that these decisions as to the limits of the Court's power, with all the corollaries which they involve, will make it impracticable to frame awards that will work-will entail, indeed, a gradual paralysis of the functions of the Court. Yet this Court, if it be trusted-and unless it can be trusted it ought not to exist-shows magnificent promise of usefulness to the public. It is in a position to solve problems which cannot be solved, to settle disputes which cannot be settled, by any tribunal except one that has authority in all parts of Australia. In this very case, in my reasons for award, I showed that in industries as to which there is inter-State competition the State Wages Boards confessedly cannot do justice. It would not be well to go into further detail on this subject, for obvious reasons. But I am clearly entitled-I am even in duty bound-to make known the obstacles and dangers which confront the Court, and before it is too late."

Later on in the judgment in this tramway case on 21st December 1912 the President said 2 :- The position of

14 C.A.R., 1, at p. 42. 26 C.A.R., 130, at p 146. 19 CLR 157

the question-Does a dispute exist ?-is most unsatisfactory. The Act assumes that the existence of a dispute is the most obvious thing in the world and, according to the High Court, Parliament has not given me any jurisdiction to decide the ques- tion. I understand that my finding on the question is not even to be treated as prima facie right; and yet, when the question comes before the High Court, the High Court takes no evidence on the subject. As actually happened in the Merchant Service Guild Case 1, I may spend days and weeks in going into the merits of claims; and, after I have made an award, some dissatis- fied party makes an application for prohibition; and the whole proceedings become a nullity, because the High Court cannot find, in the transcript, any sufficient evidence of what it under- stands by the word 'dispute.' My time and energies, which belong to the public, are wasted; and the irritated employees are put under a temptation to strike work. There are two courses which occur to me that Parliament could adopt to put an end to this position. One is to commit the question of the existence of a dispute to the High Court, and to forbid this Court to arbitrate until the High Court certifies that there is a dispute. The other is-if Parliament think that this Court, having the opportunity of meeting the employers and employees face to face, and of seeing the conditions of labour, should be able to form a better judgment-to commit to this Court jurisdiction to ascertain whether there is a dispute or not. Something must be done to improve the present anomalous position; but it is for Parliament to say what ought to be done." I entirely agree with the second suggestion.

The power to prohibit the Arbitration Court from proceeding when this Court holds that there was no dispute, and therefore that the Arbitration Court had no jurisdiction, is contained in sec. 75 (v.) of the Constitution. If employees are to continue to resort to the Court instead of to strikes, the bog of technicalities which has extended since 1911 must, I think, be cleared out of the way, and a safe and easy method provided of submitting disputes to the Court with some chance of retaining awards when obtained.

115 C.L.R., 586. 19 CLR 158

Some idea of the extent of the technicalities submitted for con-

sideration in this case may be formed from the fact that the greater part of the time of this Court was occupied in arguing them. The argument before this Court lasted 23 sitting days, and out | No. 2].

of that time I estimate 17 days were occupied in arguing techni- calities in order to obtain an order for prohibition on technical grounds, even if there was an inter-State industrial dispute. I do not see how the work of the Arbitration Court can be con- tinued on present lines, after the decision in this case, until the Act is amended and I have felt it my duty, therefore, as Deputy President of the Court, to point out the position at some length.

Other reasons were given why the award should be set aside, even if there was a dispute.

It has been said that the dispute was only manufactured-not real. The dispute between Austria and Servia, it is generally believed, was also manufactured; but the dispute became a real one after demand and refusal. Whatever the intentions of the first promoters were when the Association was first suggested, it developed into a real federal organization, with branches in five States determined on behalf of the employees to make demands on the employers and to persist in them.

Prendergast as original promoter may have started the move- ment in Melbourne (as he said he did when he became an informer) to secure a good billet as organizer; but the organiza- tion later on found it necessary, in order to carry out the objects it had in view, to dispense with the services of its promoter. It did not want a president who thought only of a billet, and not of properly pressing for the claims the members insisted upon. The demand made before plaint was a real demand, and there was a real dispute with a registered federal organization long before the plaint was filed.

It was contended that, although the log contained some items the members intended to persist in, the demand was for a log of prices and conditions the major part of which they did not intend to press for, and therefore the demand as a whole was not one they intended to persist in, and the Court had no jurisdiction. This question has practically been decided by this Court in

19 CLR 159

Whybrow's Case 1. The learned President in that case held that, out of 23 claims made in the log and in the plaint, he could only make an award as to two claims because some of the claims were not in respect of matters in dispute, and as to other claims the Court had no jurisdiction. The High Court held that under the circumstances the learned President was right in making an award with respect to the only two matters (in the log) in dispute 2. The learned Chief Justice 3, referring to the contention that the demand, taken altogether, did not represent the real dispute (if any) at all, and therefore the jurisdiction failed, said:- I am unable to accept this contention. If a separable part of the demand represented a real dispute then existing, I do not think that the addition of other demands affected that fact." The learned President was therefore justified in eliminating matters not really in dispute in the plaint 4 and confining the award to matters which he held were really in dispute between the parties.

I do not think the objection raised that there were two awards is fatal. There was one award and one judgment. In the award the claims allowed against the Brisbane Tramway Company Limited were first set out, and then the claims allowed against the Adelaide Tramway Trust, but the main claims allowed in both were exactly the same-some in the same words, and others to the same effect. Items affecting one respondent only were also included. As to these items not included as part of a common claim required by all members, the award would not be valid-that is, where the claim made was only against a respondent or respondents in one State.

It was contended that no award could legally be made against the Brisbane Tramway Company Limited as to preference to unionists, because there was only a dispute as to this matter between the organization and the Brisbane Tramway Company Limited, if there was any dispute at all, although claimed against all the respondents in the log. The claim was, however, persisted in against all the respondents, and undertakings were given by most of the respondents not to discriminate against unionists when

111 C.L.R., 1. 211 C.L.R., 1, at pp. 28, 29. 311 C.L.R., 1, at p. 29. 46 C.A.R., 130, at p. 142. 19 CLR 160

OF A. they settled the dispute by the agreements.

The dispute as to this claim was still in existence in South Australia, in Queens- land and in Victoria at the date of the award. On the whole the evidence, in the President's opinion the organization was not [No. 2].

entitled to an award as to preference to unionists against the Adelaide Tramway Trust. The dispute as to preference to unionists was not settled in Victoria until August 1912 (eight months after the award), and it was then settled by an agree- ment between the organization and the Melbourne Tramway &Omnibus Co. There was therefore clearly an inter-State dispute, and not a Brisbane dispute only, at the date of the award, SO that a legal award as to that claim could be made.

Some of the employees (about 440) of the Brisbane Tramway Company Limited (members of the organization) foolishly insisted on wearing a union badge, and thus enforcing the demand as to part of the claim, after the plaint was filed. The employers refused to allow the men to continue to work while wearing a badge, and it was contended that that was a determination of the employment which deprived the members of any right to an award. This Court has already held that the question whether the cessation of work ends the employment SO as to prevent a dispute continuing must be decided on the facts in each case (see Colliery Employees Federation v. Brown 1; Merchant Service Guild Case 2, and Broken Hill Case 3 ). In this case the dispute was with the organization, and the dispute con- tinued although some of the members were not allowed to work under the circumstances mentioned. The uncontradicted evidence of the men shows clearly that they were prepared to go back to work, and wished to go back, as soon as the dis- pute was settled. Mr. Mitchell admitted that if men had not been obtained to take their places the dispute, if any, might have continued, and that the dispute, if there was one, would have continued if they had gone on working. The question whether there is or is not a dispute continuing does not depend on whether the members are or are not working. It is sufficient if at the time the dispute started the men were

13 C.L.R., 255. 21 C.A.R., 18. 38 C.L.R., 419. 19 CLR 161

employees of the respondents and were members of the organiza- tion with which the respondents are in dispute, and were ready and willing to go to work as soon as the dispute was settled. As the dispute with the organization was not settled and the Court had cognizance of it for settlement prior to the cessation of work, up to the date of the award, it cannot properly be said that the dispute with the organization was at an end before the award was given because some of its members were not allowed to work under the circumstances.

It is held that if an organization does not order a strike, or its members do not individually worry their respective employers, it does not intend to insist on its claims, and there is no dispute and that if it does order a strike, or any of its members strike, it ends the employment, and all the members lose all right to benefits under the Arbitration Act. That is placing on the word "dispute" a construction I do not see my way to agree with.

The point was again raised that as tramways are local in each State and do not compete with each other a dispute cannot extend beyond the limits of one State. I do not wish to add anything to what I have already said on this point in The Builders' Labourers' Case 1 and Holyman's Case 2, but in this particular case the President said 3 The dispute, SO far as the troubles and grievances of the employees are con- cerned, is substantially one all over the tramway systems, and even on the several subjects of dispute the unanimity is striking."

An objection was raised that the award as to preference to unionists in Queensland was bad because the Industrial Peace Act of 1912 (Qd.) prevented any such discrimination. I hold the Act does not apply to federal awards in inter-State dis- putes, but only to associations over which the State has juris- diction: See decision of this Court in Whybrow's Case 4, where the Court held that in a Victorian Act, No. 2241 (which on the face of it apparently intended to prevent federal awards from having any effect), the words "compelled or compellable" must be construed as meaning compelled or compellable" by any power over which the Victorian legislature had legislative authority.

118 C.L.R., 224. 218 C.L.R., 273. 36 C.A.R., 130, at p. 144. 410 C.L.R., 266, at pp. 288, 300, 19 CLR 162

The additional evidence submitted to this Court proved that the learned President was misled by the representative of the organization at the hearing. Minutes were put in as genuine minutes made in the ordinary way, when they were, in fact, [No. 2].

dictated twelve months after, from memory. Membership cards were put in, altered after they were signed, without informing the Court of the fact. One important minute was written in the minute book while the case was proceeding, between two minutes, and submitted as genuinely entered at the time it was passed (without stating that it was), and in other ways the Court was misled. That was very reprehensible indeed, but the evidence shows that the meetings were actually held, the resolutions were passed, the membership cards were genuine, and the president of the organization (Prendergast), who had the conduct of the proceedings, was the only person who with evil intent misled the Court, and his services were during the proceedings dispensed with by the organization. The Arbitration Court, if all the real facts as now known had been disclosed to it, must therefore have come to the same conclusion as it did on the real questions to be decided in this case.

As to 65 Brisbane members who withdrew from the plaint: This Court has held in Holyman's Case 1 that parties to a dispute may, after plaint failed, settle the dispute without the Court's consent or award, or withdraw from the proceedings. I hold that the members referred to made a claim which they did not intend to persist in, because when it was refused they attempted to resign as members, to withdraw from the plaint and to prevent the claim being pressed. There was not, therefore, any existing dispute. These 65 were the only members who did not insist on their claim, and their action helps to confirm me in the view that all the others made the claims with the intention of persisting in them before the Court proceedings and at the hearing, or by a strike if necessary, and that they did persist in them.

I agree that that part of the award dealing with general references to the Board of Reference of matters not specified, and those by which the Board is constituted as a tribunal to decide

118 C.L.R., 273. 19 CLR 163

matters the President himself had no power to decide, after the dispute was determined, is ultra vires. As to these two matters

I agree with my brother Isaacs, prohibition should be granted. As to the rest of the award, I hold that prohibition should be refused.

The judgment of GAVAN DUFFY and RICH JJ. was read by

RICH J. Two orders nisi for prohibition were argued together, and a number of interesting and difficult points were raised and discussed. These points may arise for determination on another occasion, but we do not think they need be dealt with at present. If no industrial dispute extending beyond the limits of any one State existed in either Queensland or South Australia, both orders should be made absolute. It has been said that the statesmen who designed the Constitution and the Parliament which gave it life wished to settle, not to create, industrial disputes, and that the Commonwealth Parliament, in establishing the Court of Con- ciliation and Arbitration, did not intend to produce a crop of dis- putes which would never have existed had there been no such tribunal. Be this as it may, it is now well established that the language of sec. 51 (xxxv.) of the Constitution does permit the creation of a dispute for the special purpose of having it settled by the Court. If the dispute exists, it is nothing to the purpose to inquire how or where it originated, or whether the claims of any of the disputants are reasonable or unreasonable; but the dispute, whether spontaneous or fabricated, must exist, the Court cannot claim jurisdiction merely because the parties on one side or the other would have taken steps for the purpose of producing a dispute had they been aware of the necessity for doing SO.

When does such a dispute exist In The Builders' Labourers' Case 1 we said :- A dispute extends beyond the limits of any one State when it exists in more than one State, that is to say, extends over an area which embraces territory of more than one State. When persons engaged in industrial disputes, and living some in one State and some in another, join together to insist, and do insist, on the concession of common industrial conditions which are definitely and finally refused by those from whom

118 C.L.R., 224, at p. 225. 19 CLR 164

they are demanded, the words of the sub-section are satisfied.

The submission by employees to employers in two or more States of industrial conditions in the shape of a common log, and the refusal by employers to concede those conditions, do not neces- [No. 2].

sarily constitute such a dispute, but they are evidence of its existence. The demand may be the outcome of a settled deter- mination on the part of the employees to have that which they demand by lawful or it may be even by unlawful means; the refusal may be the result of an equally deliberate determination on the part of the employers. If SO there is a dispute. On the other hand the demand may merely represent what the employees would like to have though they are not really discontented with existing conditions, or, being discontented, are not disposed to insist on concessions the employers' refusal may represent a mere unwillingness to give too easily that which, if pressed, they would be ready to consider or concede. In such a case there may be no dispute."

Did such a dispute exist in Queensland or South Australia ? This depends on the facts in each case; and the evidence furnished to us is vague, fragmentary and ill-arranged, and some of it is quite untrustworthy. But it is on this evidence. not the very different evidence which was before the Court of Conciliation and Arbi- tration, that we must act. Dealing with this evidence as well as we are able, we have come to the conclusion that the employees in both States believed that the trouble and expense of an appeal to the Court of Conciliation and Arbitration would be amply repaid if they could obtain an award, and that the chances of obtaining an award justified the necessary expenditure of time and money. So believing, they were willing and even anxious that the claim should be submitted to the Court on their behalf in such form as would be likely to secure them the most advan- tageous terms. They were also willing and even anxious that all conditions should be fulfilled in order to enable the Court to adjudicate on their claim. They and those to whom they en- trusted the conduct of the proceeding probably thought that the submission of the log and the refusal by the employers consti- tuted a sufficient dispute to give jurisdiction to the Court, and had they not thought SO they no doubt would have taken any

19 CLR 165

further step that was considered necessary to give such jurisdic- H. tion, but they were SO engrossed in the production of a satis- factory claim and its carriage through the Court that they overlooked the necessity for a substantial dispute, or pretermitted the function of creating one. The service of the log on the employers was no more than a formal step on the road to arbitration, and was not effected with the expectation or even with the desire of obtaining any concession from or conference with the employers, except in SO far as they might be obtained as incidents in the arbitration proceedings. The log, as a whole, did not represent the real grievances of any body of employees, what they were determined to get, or even what they thought they were entitled to get as a matter of fair play between themselves and their employers. It was merely the claim which those who had the carriage of the business considered would be likely to obtain the most favourable award from the Court. No doubt it contained some items which employees in all the States con- sidered they were fairly entitled to claim, and many items which the employees in some two or more States thought reasonable, but we do not think that it contained any item about which there could be said to exist in either Queensland or South Australia a "dispute extending beyond the limits of any one State," as described in the words we have already cited from The Builders' Labourers' Case 1. That being so, the Court of Conciliation and Arbitration had no jurisdiction to make an award in respect to the applicants in either case, and both orders should be made absolute.

Orders absolute. Solicitors, for the Brisbane Tramways Co. Ltd., Blake &Riggall, for Thynne &Macartney, Brisbane.

Solicitors, for the Municipal Tramways Trust, Adelaide, T. S. O'Halloran,

Solicitors, for the Australian Tramway Employees' Association, Brennan &Rundle.

Solicitor, for the Commonwealth, Gordon H. Castle, Crown Solicitor for the Commonwealth.

118 C.L.R., 224