R v Commonwealth Industrial Court Judges; Ex parte Cocks

[1968] HCA 86

HIGH COURT OF AUSTRALIA

Barwick C.J., McTiernan, Kitto, Taylor, Menzies, Windeyer and Owen JJ.

REG. v. COMMONWEALTH INDUSTRIAL COURT JUDGES; Ex parte COCKS

(1968) 121 CLR 313

23 December 1968

Conciliation and Arbitration (Cth)

Conciliation and Arbitration (Cth)—Industrial arbitration—Industrial dispute—Award—Prohibition of employers' having work performed by outdoor independent contractors—Whether industrial matter—Whether reasonably incidental to settlement of industrial dispute—Conciliation and Arbitration Act 1904-1967 (Cth), ss. 4 (1), 23, 32. Conciliation and Arbitration (Cth)—Commonwealth Industrial Court—Power—To impose penalty for breach of award—Award made final and conclusive by Act—Whether Court can determine validity—Conciliation and Arbitration Act 1904-1967 (Cth), ss. 60, 119.

Decisions

December 23.
The following written judgments were delivered:-
BARWICK C.J., TAZYLOR AND OWEN JJ. This is the return of an order nisi directed to the respondents and requiring them to show cause why prohibition should not go to prohibit further proceedings in respect of sub-cl. (1) (a) of cl. 30 of the Dry Cleaning and Dyeing Industry Award, 1966, and, in particular, from further proceeding upon an order of the Commonwealth Industrial Court made on 15th March 1968. The sub-clause in question provides that:

"An employer bound by this award shall - (a) not cause any work to be done for him by any person outside his workshop or factory unless such person is the holder of a current outdoor worker's permit issued in accordance with the provisions of sub-clause 2 hereof"

and the order of 15th March 1968 purported to find the prosecutors guilty of a contravention of the provisions of the sub-clause and to impose a fine of $20.00 in respect thereof. (at p315)

2. Clause 30 (1) contains a number of provisions relating to "outdoor workers". It also provides that an employer bound by the award shall -

"(b) not cause any person to do any part of such work in any workshop or factory; (c) pay rates prescribed by this award for the actual work performed;
(d) pay each public holiday prescribed by this award

occurring during the period of the outdoor worker's employment one-fifth of the weekly wage prescribed by this award for employees doing similar work;

(e) keep in bound book on pages consecutively numbered correct records in ink of the name and address of each outdoor worker, the description and number of articles or garments given to each outdoor worker and, the rate paid or agreed to be paid for such work and shall obtain the signature of each outdoor worker in such book for all amounts paid for such work;

(f) pay annual leave to outdoor workers in accordance with the provisions of clause 19 of this award;

(g) not be required to pay sick leave to outdoor workers; (h) not employ more than one outdoor worker plus one outdoor worker for each ten persons usually employed by him in his workshop or factory, up to a maximum of five persons, provided that either the Registrar or the Board of Reference may at their discretion grant permission to an employer to have a greater proportion or number of outdoor workers;

(i) provide outdoor workers with all necessary materials, trimmings and sewing threads;

(j) cause to be delivered and/or collected all work from an outdoor worker free of charge."

By sub-cl. (2) an outdoor worker's permit may be issued by the Registrar or a Board of Reference but such a permit shall be issued only if the appropriate authority is satisfied that the person who will be doing the work for the employer outside his workshop or factory -

"(a) is in necessitous circumstances or there are other special circumstances which justify the issue of a permit;

(b) cannot for some sufficient reason seek employment in a factory or workshop;

(c) has produced a statutory declaration that no person in the place where work is to be performed is suffering from any communicable disease;

(d) is a person legally entitled to the benefits of this award and to recover the rates of pay herein provided."

By sub-cl. (5) of the clause the penalty prescribed for a breach of cl. 30 is $20.00 "for each day and each person and each breach concerned". (at p316)

3. The clause also contains other comprehensive provisions relating to outside workers and it is the prosecutors' contention that it is invalid in that its prescription was beyond both constitutional power and the power conferred by the Conciliation and Arbitration Act 1904-1965 (Cth). A further ground - that the provision was outside the ambit of the dispute in settlement of which the award was made - was taken in the order nisi but that ground was not pressed. (at p316)

4. The argument advanced on behalf of the prosecutors requires us to examine the clause and to form a view as to whether or not the prohibition contained in par. (a) of sub-cl. (1) extends to forbidding an employer bound by the award from entering into a contract, not being a contract of service, with another person for the execution of work outside the employer's workshop or factory. The members of the Industrial Court thought that it did and we agree with this view. The language of the clause is not only wide enough but apt to produce such a result and, indeed, if the prohibition were held to be limited to the employment of servants in the performance of work covered by the award outside the employer's workshop or factory, there would be no reason for the inclusion of provisions such as those contained in pars. (c), (d) and (f) which are intended to operate in the case of the engagement of the holder of an outdoor worker's permit. We should add that the prosecutors' contention that the clause was not restricted merely to forbidding the engagement of servants in outdoor work was supported by the respondent union and we shall commence our examination of the validity of the clause bearing in mind that the prohibition contained in par. (a) extends to the performance of any work of the description contained in cl. 5 of the award whether performed by a servant or by a person who is, in truth, - as appears to have been the case in this instance - an independent contractor. (at p317)

5. This is of considerable importance in view of the pronouncement by a majority of the members of the Court in Reg. v. Foster; Ex parte Commonwealth Life (Amalgamated) Assurances Ltd. (1952) 85 CLR 138 . In that case the Court had occasion to consider the content of the definition of "industrial matters" contained in s. 4 of the Act as it then stood - "all matters pertaining to the relations of employers and employees and, without limiting the generality of the foregoing includes" a great many of the incidents of such a relationship and of the work to be done pursuant to such a relationship - and after examining the provisions of the definition and its history, the decision in Amalgamated Society of Carpenters and Joiners v. Haberfield Pty. Ltd. (1907) 5 CLR 33 , and other authorities dealing with State industrial legislation in pari materia, expressed the view "that the kind of relationship to which the definition in s. 4 of 'industrial matters' refers by the expressions 'employer' and 'employee' is, under another name, in substance the relation called at common law master and servant". This, of course, means that there never could be an industrial dispute simply as to whether it should or should not be permissible for an employer in any particular industry to employ independent contractors in performing relevant work outside the employer's factory or workshop and that a dispute as to any such question would not be an industrial dispute as defined. It is as well to remember that it is not every dispute between employers and employees in an industry which constitutes an industrial dispute within the meaning of the Act; it must be a dispute as to an industrial matter or industrial matters as defined and the subject matter of a dispute will not become an industrial matter simply because employers and employees are sufficiently interested in it to dispute about it. Disputes may, of course, arise between employers and employees with respect to any practice in an industry but the Act does not commit to the Commission authority to regulate generally the manner in which industry shall be carried on; its authority is limited to regulating the relationship of master and servant in the industry and matters which are truly incidental to that relationship. Accordingly, matters specifically designated in the definition such as (a), "all matters or things affecting or relating to work done or to be done", must be understood as a reference to work done or to be done pursuant to contracts of service and such as (e), "the question whether piece-work or contract work or any other system of payment by results shall be allowed, forbidden or exclusively prescribed", must be understood as limited to authorizing the prescription of a particular system of payment in the case of persons engaged under contracts of service. However the respondents' basic submission - and we quote - is that the clause is ancillary to the control and preservation of the terms and conditions of employment of members of the union and that it is competent to the Arbitration Commission to regulate employers in relation to any labour which is in competition with that of the disputants or a substitute for it and that outdoor workers labour, whether it be that of independent contractors or employees, is in that category. By this we understand counsel to mean that the employment of independent contractors may be forbidden by the Commission in particular industries, or, the terms and conditions upon which they may be employed may be regulated, if it be thought necessary or desirable in the interests of employees in the industry who have entered into contracts of service. But if this be so it is difficult to see why the Commission may not, where it is thought to be necessary or desirable in the interests of employees in a particular industry, forbid or regulate practices having no connexion with the relationship of master and servant in the industry which may be thought to operate detrimentally to the interests of employees. But this is clearly not so as is shown by a glance at the decisions of this Court in cases such as R. v. Kelly; Ex parte Victoria (1950) 81 CLR 64 ; and Reg. v. Foster; Ex parte Commonwealth Steamship Owners' Association (1956) 94 CLR 614 . However, the respondent organization points to the case of Federated Clothing Trades of the Commonwealth of Australia v. Archer (1919) 27 CLR 207 , which, it was said, is clear authority for the proposition that a dispute as to whether an employer in the clothing industry shall be at liberty to have work done by employees outside a workshop provided and controlled by him is an industrial dispute. It is true that in that case a majority of the Court held that a dispute between the claimant and the respondents as to such a subject matter was an industrial dispute as that expression was then defined. But this was only one of several diverse subject matters which were in question all of which were held to have given rise to an industrial dispute. We confess that we are unable to discover in the joint judgment of Isaacs and Rich JJ., or in their joint judgment in the Badge Case (Australian Tramway Employes Association v. Prahran and Malvern Tramway Trust) (1913) 17 CLR 680 , to which they refer, any statement of a reason in justification of the conclusion that the particular subject matter to which we have referred was an industrial matter as defined. Nor are we able to subscribe to the view expressed by the other member of the majority - Higgins J. - that the claim for an order forbidding work outside the shop or factory came "easily within the definition". His Honour observed that (1919) 27 CLR, at p 217 :

"Even on the narrowest view of 'industrial matters' it is of vital importance to the members of the union that an employer shall not have facilities for evading the award rates and conditions, or for resorting to the individual bargaining which homework often involves, or for getting women and girls who have other aids to support to accept work at low prices. . . . "

The claim comes also under the words "all matters pertaining to the employment, preferential employment . . . or non-employment of any particular person". Apart from the fact that the observations in Reg. v. Foster (1952) 85 CLR 138 to which we have referred are inconsistent with much of this reasoning we have great difficulty with the proposition that an alternative course which is lawfully open to an employer and which the Commission has no independent power to forbid or regulate, may be forbidden or regulated merely because it is in the interests of employees in the industry that this should be done, or, merely because it is an undesirable practice. To characterize the adoption of a legitimate course as an evasion of "award rates and conditions" is, we think, to distort the picture to some extent, but in any event, it would not, in the light of the observations in Foster's Case (1956) 94 CLR 614 afford any reason for thinking that the subject matter with which his Honour was concerned was an industrial matter as defined. The question whether the practice of employing independent contractors in any particular industry is undesirable and should be forbidden or regulated is a matter for the appropriate legislature or legislatures and not for the Commission. (at p320)

6. Two further contentions are advanced one of which asserts that the inclusion of the sub-clause in an award would be justified on the principle upon which it has been consistently held in this Court that it is permissible to insert in awards clauses prohibiting bans or limitations on work under the award. But with respect to the argument this line of authority does not touch on the present problem for the subject matter of the clause which it is sought here to justify is not incidental to the provisions of the award itself but is quite independent of and substantively separate from the other clauses of the award. (at p320)

7. The remaining contention is that the decision in the Metal Trades Case (Metal Trades Employers Association v. Amalgamated Engineering Union) (1935) 54 CLR 387 , is authority for the proposition that a dispute with respect to the subject matter of the sub-clause in question is an industrial dispute. There is no doubt, of course, that in that case the Court upheld the authority of the Commission to impose upon the respondent employees the obligation of paying minimum rates of wages not only to members of the union concerned but also to employees who were not members. But in that case the subject matter of the dispute was the minimum rate of pay to be paid to employees and, clearly enough, that subject matter fell within the definition of industrial matters; the only question to be decided was whether the union concerned had a sufficient industrial interest to claim that persons whom it did not represent and who were not represented but with whom its members were in competition should be paid a minimum wage. In our view that case affords no reason for thinking that sub-cl. (1) (a) of cl. 30 dealt with a subject matter capable of giving rise to an industrial dispute. (at p320)

8. Having dealt with the substantive point in the case it is necessary that we should devote some attention to the question of what order should be made. The order which is sought is, in a sense, two-fold; it seeks prohibition against the respondents to restrain them from further proceeding upon or in respect of the order made by the Industrial Court on 15th March 1968, and also from further proceeding "in respect of sub-cl. (1) (a) of cl. 30" of the award of the Commission which was made on 27th July 1966. It seems clear enough that neither the case nor the parties are appropriate for the general prohibition of further proceedings "in respect of" the sub-clause for the Industrial Court did not make the award and there is nothing to suggest that it proposes to do anything more than take steps to see that its own order is enforced. It is, however, necessary to make some further comments with respect to the position of the Industrial Court. That Court is empowered in general terms by s. 119 of the Act to impose a penalty upon any person who has committed a breach or contravention of an order or award by which he is bound. But we have held that the subject matter of sub-cl. (1) (a) of cl. 30 was not capable of giving rise to an industrial dispute as defined and the question which immediately arises is whether this means that the fine was imposed without jurisdiction. In other words has the prosecutor been convicted and fined for what is, in effect, a non-existent offence? (at p321)

9. The problem is not without some complexity but the Industrial Court did not decide that the clause was valid; it assumed that it was debarred by s. 60 of the Act from pronouncing upon the question. Whether this was or was not a correct assumption was not argued before us but, as at present advised, we are inclined to the view that it was not. However if it had purported to determine the question of validity it would have been necessary to consider whether s. 119 commits to the Industrial Court, in addition to the power of adjudication upon issues of the kind which will ordinarily arise in proceedings of the character which it contemplates, authority to determine conclusively for the purposes of its jurisdiction questions - including, of course, questions touching the extent of constitutional authority - concerning the validity of any award, or award provision, before it. (at p321)

10. The broad test to be applied in solving problems of this kind is discussed in Colonial Bank of Australasia v. Willan (1874) LR 5 PC 417, at pp 442-445 ; Reg. v. Commissioners for Special Purposes of the Income Tax (1888) 21 QBD 313, at p 319 ; R. v. Nat Bell Liquors Ltd. (1922) 2 AC 128, at p 158 ; Ex parte Mullen; Re Hood (1935) 35 SR (NSW) 289, at pp 299, 300 ; and Parisienne Basket Shoes Pty. Ltd. v. Whyte (1938) 59 CLR 369, at pp 391, 392 , and we need not further elaborate. It is enough to say that if the Industrial Court had pronounced in favour of the sub-clause we would have no doubt that it would be incumbent on this Court, if it considered the provision to be beyond the authority of the Commission, to hold that the Industrial Court had acted without jurisdiction. However, as we have said, the Court did not consider or pronounce upon the question of validity and the case is a clear one for prohibition. The order nisi should be made absolute in so far as it purports to restrain the respondents from further proceeding upon or in respect of the order made on 15th March 1968. (at p322)

McTIERNAN J. I am of opinion that cl. 30 of the Dry Cleaning and Dyeing Industry Award 1966 is valid and the order nisi should therefore be discharged. The clause, in my opinion, involves an industrial matter, which I would describe, in substance, as the control of the use by employers bound by the award, of outdoor workders to do award work. It may well be supposed that the use by employers of such labour could have a material effect detrimental to employees in respect of their employment. A practice of this kind has been, as is well known, a common source of industrial conflict between employers and workers who carry on their employment in the factories and workshops provided by the employers. The industrial matter involved in cl. 30 does not stop short at controlling the employment of outdoor workers who are strictly employees. It extends to the employment of outdoor workers who may be correctly classed as independent contractors. (at p322)

2. The control of the right of employers to use the labour of outdoor workers whether their status is that of a servant or an independent contractor is, I think, an industrial matter appropriate to the relations of employees vis-a-vis employers. The trades, services, handicrafts and industrial occupations constituting this industry appear from cl. 7 of the award. The industry is one that lends itself to the letting out of work to outdoor workers. Belief in the validity of a clause of the nature of cl. 30 would appear to have been securely established before the present matter was begun See (1919) 13 CAR 647; (1921) 15 CAR 435; (1921) 15 CAR 746; 1922) 16 CAR 50; (1923) 18 CAR 1032; (1924) 21 CAR 48; 1925) 21 CAR 808; (1928) 26 CAR 76; (1940) 43 CAR 124; 1943) 51 CAR 632; (1946) 56 CAR 134; (1948) 60 CAR 695; 1950) 66 CAR 481; (1955) 87 CAR 327, 375; (1960) 95 CAR 23; (1960) 95 CAR 549; (1961) 96 CAR 832 In my opinion a dispute as to whether the employers should be subjected to a control of the sort provided in cl. 30 is a dispute as to industrial matters pertaining to the relations of employers and employees. (at p323)

3. In the case of Federated Clothing Trades of the Commonwealth of Australia v. Archer (1919) 27 CLR 207 , it was decided by a majority that a dispute in the clothing trade was an "industrial dispute" within the meaning of the Constitution and of the Commonwealth Conciliation and Arbitration Act 1904-1915 so far as it was a dispute as to certain claims which included a claim that no work should be done outside a workshop provided and controlled by the employer for whom the work is performed: and that outdoor work should be given only to members of the claimant organization of employees. (at p323)

4. In my opinion there is no analogy between the present cl. 30 and "the prescription of trading hours": R. v. Kelly; Ex parte Victoria (1950) 81 CLR 64, at p 84 ; and Clancy v. Butchers' Shop Employees Union (1904) 1 CLR 181 . I do not consider that the instance of interference with management which O'Connor J. postulated in his judgment in the latter case bears any resemblance in principle to the deprivation or curtailment of the right of employers to hire independent contractors as outdoor workers produced by cl. 30. (at p323)

5. Although the Commonwealth Industrial Court was not competent by reason of s. 60 of the Conciliation and Arbitration Act 1904-1966 to give a binding decision on the question of the validity of cl. 30, and their Honours recognized this position, it is interesting to note their observations as to the object of the clause and its application to and in relation to independent contractors. With respect, I would concur with their Honours' views on these matters. (at p323)

KITTO J. I agree in the reasons given in the joint judgment that has been delivered for the opinion that clause 30 (1) (a) of the Dry Cleaning and Dyeing Industry Award, 1966, in its application to a person who is not an employee of an employer bound by the award was beyond the award-making power of the Conciliation and Arbitration Commission under ss. 23 and 32 of the Conciliation and Arbitration Act 1904-1967 (Cth). (I am assuming that having regard to s. 46 (b) of the Acts Interpretation Act 1901-1957 (Cth) the provision is to be regarded as valid in its application to a person who is such an employee.) (at p323)

2. Upon this view of the substantive question in the case there can be no doubt that a partial prohibition (see Walsh v. Ionides (1853) 1 E &B 383, at pp 389-390 (118 ER 479, at p 482) ) would go to both the member of the Commission who made the award and the respondent union to prohibit further proceedings in respect of cl. 30 (1) (a) in relation to a person not being at the relevant time an employee of an employer bound by the award. This relief is in effect one of the two forms of relief which the prosecutor seeks in this case; but because the jurisdiction of the High Court to grant prohibition under s. 75 (v.) of the Constitution exists only in a matter in which prohibition is sought against an officer of the Commonwealth, the relief of prohibition is not available in this Court against the union in the absence of the appropriate member of the Commission, notwithstanding that, as was pointed out in London Corporation v. Cox (1867) LR 2 HL 239, at p 280 , it would be so available in a court exercising a general jurisdiction to grant prohibition. It is no answer, I think, that by the same order nisi prohibition is sought against the judges of the Commonwealth Industrial Court to prohibit further proceeding upon the order made by that Court. Their Honours are officers of the Commonwealth and as such are amenable generally to prohibition in this Court, but the application that is here made against them is a distinct "matter" from the "matter" which consists of the claim to prohibition against further proceedings in respect of the award. I therefore think that the order nisi should be discharged in so far as it relates to cl. 30 (1) (a) of the award. (at p324)

3. The question whether prohibition may be granted against further proceeding in respect of the Commonwealth Industrial Court's order raises different considerations. The jurisdiction which the respondent judges of that Court purported to exercise by making the order is conferred by s. 119 of the Conciliation and Arbitration Act. It is a jurisdiction to impose a penalty where a person bound by an award has committed any breach of any term of the award. The prosecutors had committed a breach of a term appearing in the award, but as the term in its relevant application was invalid the order imposing the penalty was beyond the jurisdiction of the Court unless the expression "term of the Award" in s. 119 means a term de facto appearing in the award whether valid or invalid either wholly or in its relevant application. (at p324)

4. In this connexion it is necessary to bear in mind s. 60 of the Act, providing that "subject to the Act" an award is final and conclusive and shall not be called in question in any court, and that a determination or finding of the Commission upon a question as to the existence of an industrial dispute is conclusive in all courts. If this section were to be interpreted with complete literalness and without the qualifying expression which introduces it, the Commonwealth Industrial Court would be obliged, as in fact it thought it was, to treat s. 119 as giving it jurisdiction to impose a penalty for "any breach of any term" including a term which, so far as material, the award-making authority had no power to put into the award. But it has long since been decided that s. 60 has not so extensive an operation, for, as its introductory words acknowledge and require, the provisions it contains must be reconciled with the rest of the Act and particularly with the provisions which subject the powers of the Commission to limitations some at least of which are plainly intended to spell invalidity for any action that transgresses them. The mode of reconciliation which is established by such cases as R. v. Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598, at p 616 ; R. v. Murray; Ex parte Proctor (1949) 77 CLR 387, at pp 398, 399 ; Reg. v. Central Sugar Cane Prices Board; Ex parte Maryborough Sugar Factory Ltd. (1959) 101 CLR 246, at p 255 ; and Coal Miners' Industrial Union of Workers of Western Australia v. Amalgamated Collieries of Western Australia Ltd. (1960) 104 CLR 437, at pp 442, 443, 454, 455 , is to interpret s. 60 as validating, so far as it can validate it constitutionally, any award provision which is outside the power of the Commission if on its face it appears to be within power and is in fact a bona fide attempt to act in the course of the relevant authority. The bona fides of the commissioner who inserted cl. 30 (1) (a) in the award no one would question; but, as the reasons that have been given in the joint judgment show, cl. 30 (1) (a) on its face travels into an area in which the Commission had no power to tread, namely the area of matters not pertaining to the relation of employers and employees but pertaining only to relations between employers and persons who are not their employees. Moreover, a parallel course of reasoning to that which leads to the conclusion that cl. 30 (1) (a), in its application in respect of persons who are independent contractors, deals with a matter which is not an industrial matter within the meaning of the Act must lead also to the conclusion, as it seems to me, that cl. 30 (1) (a) in that application cannot be sustained as a provision made in settlement of an industrial dispute within the meaning of s. 51 (xxxv.) of the Constitution. This is to say that a dispute as to whether a provision having such an operation should be a term of employment in an industry is not an industrial dispute in the constitutional sense, and the provision cannot be sustained as incidental to the settlement of any dispute which is an industrial dispute in that sense. For this reason s. 60 could not constitutionally have an operation which would validate cl. 30 (1) (a) in its application in respect of non-employees, even if on its true construction it affected to do so. Equally s. 119 considered by itself, being construed so as to be constitutionally valid, cannot be interpreted to mean that a penalty may be imposed for a breach of something which, though appearing as a term of an award, is not one that in its nature is capable of being included as part of the settlement of an industrial dispute in the constitutional sense of the expression. (at p326)

5. I am therefore of opinion that the learned judges of the Commonwealth Industrial Court were not precluded by the provisions of s. 60 or by any other consideration from investigating the question whether the application they were being asked to give to cl. 30 (1) (a) was one which carried it beyond the authority of the Commission under the Act and beyond the power of the Parliament to authorize. Proceeding as they did to give the clause the application contended for and to impose a penalty accordingly, their Honours, in my opinion, treated their power under s. 119 as being wider than it was or constitutionally could be. (at p326)

6. For that reason I would make an order absolute for prohibition in respect of the order of the Commonwealth Industrial Court. (at p326)

MENZIES J. The contention that cl. 30 of the Dry Cleaning and Dyeing Industry Award, 1966 was validly included in the award as an exercise of the power of the Commonwealth Conciliation and Arbitration Commission to settle disputes about industrial matters has far reaching importance. The effect of cl. 30 is, inter alia, to prohibit dry cleaners from having work done for them by outdoor independent contractors. Whether or not an independent contractor could obtain an outdoor worker's permit under sub-cl. (2) of cl. 30 is not, as I see it, a matter of critical importance. Clause 30 (1) unquestionably prohibits a dry cleaner from having work done by an outdoor worker who is an independent contractor unless a permit is obtained under sub-cl. (2). The question, as I see it, is whether such a prohibition could validly be included in the award. (at p326)

2. It is useful, I think, to consider first whether a dispute between employers and employees about the use by employers of independent contractors to do work which could be done by employees would be an industrial dispute. In other words, would the rejection of a claim by employees to a monopoly of the employers' work constitute an industrial dispute? I think not, because it would not be concerned with the relationship of employers with employees. It would be concerned with the possibility of a relationship between employers and persons not employees. A dispute between employers and employees whether an employer should himself work in the industry would not be an industrial dispute. If authority for this were needed it could be found in R. v. Kelly; Ex parte Victoria (1950) 81 CLR 64 . Furthermore, a dispute between employees and employers about compulsory unionism, i.e., the granting of the monopoly of employment to unionists, is not an industrial dispute: R. v. Wallis; Ex parte H. V. McKay Massey Harris Pty. Ltd. (1949) 78 CLR 529 ; R. v. Findlay; Ex parte Victorian Chamber of Manufactures (1950) 81 CLR 537 . A dispute between employers and employees whether employers should be prevented from engaging subcontractors is even further from the conception of an industrial dispute. (at p327)

3. The second matter for consideration is whether cl. 30 is justifiable as a provision of the award reasonably incidental to the settlement of what was an industrial dispute, viz. a dispute between the employees and employers as to wages, hours of labour and conditions of work. (at p327)

4. I do not think that cl. 30 can be so justified. It is true that it is reasonably incidental to the settlement of a dispute to make provision in the award for the protection of the settlement constituted by the award, but cl. 30 is not such a provision. In a general way it was, no doubt, directed against "sweating" but it is for the general law to safeguard the position of outdoor workers who are not employees. The award and the Conciliation and Arbitration Act 1904-1966 (Cth) from which it derives its authority and under which it may be enforced protects employees, parties to the award. There are sanctions to ensure that an award will be observed. Moreover cl. 30 does not go to the safeguarding of the award. It goes to an entirely different matter, viz. whether the employer can be obliged to have all its work done upon the terms of the award rather than by independent contractors to whom the award has no application. (at p327)

5. On behalf of the respondent, The Clothing and Allied Trades Union of Australia, we were pressed with the earlier decision of this Court in Federated Clothing Trades of the Commonwealth of Australia v. Archer (1919) 27 CLR 207 , in which it was decided by a majority that a dispute between employers and employees as to the following demand was an industrial dispute:

"74. No employer shall have work done and no employee shall do work outside a workshop provided and controlled by the original employer for whom the work is performed, and no work shall be performed in any premises occupied by an operative."

Isaacs and Rich JJ., however, in that case disregarded Clancy v. Butchers' Shop Employees Union (1904) 1 CLR 181 , as inapplicable, whereas in 1950 that decision was applied in R. v. Kelly (1950) 81 CLR 64 . Furthermore it seems that a dispute was regarded by their Honours as an industrial dispute if employers refused any demand by employees which the employers had it in their power to grant. This is inconsistent with later authority already cited. (at p328)

6. Higgins J. decided the matter on a different ground. His Honour said (1919) 27 CLR, at p 217 :

"As for the third matter - a claim for an order forbidding work outside the shop or factory, or else for high rates on a piece work basis, the work to be confined to members of the union - this seems to me, whether the claim is just or unjust either in whole or in part, to come easily within the definition. Even on the narrowest view of 'industrial matters' it is of vital importance to the members of the union that an employer shall not have facilities for evading the award rates and conditions, or for resorting to the individual bargaining which homework often involves, or for getting women and girls who have other aids to support to accept work at low prices. The claim comes also under the words 'all matters pertaining to the employment, preferential employment, . . . or non-employment of any particular persons'."

This statement contains observations inconsistent with later authority. Moreover it is now well established that there is not an industrial dispute merely because there is a dispute on matters "of vital importance to the members of the union". (at p328)

7. My reading of the judgment of the majority in Archer's Case (1919) 27 CLR 207 leaves me with the impression that the dispute was regarded as a dispute about the place and terms of the employment of employees rather than of independent contractors. That decision cannot, for the reasons which I have given, be regarded as governing this case. (at p328)

8. The prosecutor has been convicted of the offence of failing to comply with the Dyeing Industry Award, but cl. 30, as we now decide, is not part of that award and the conviction of the prosecutor was therefore, despite s. 60 of the Conciliation and Arbitration Act, something outside the power of the Commonwealth Industrial Court. Prohibition, therefore, can and should go. (at p329)

WINDEYER J. I agree with the conclusions which the Chief Justice and my brothers Taylor and Owen express in their joint judgment. I do so because of what I understand, from the earlier decisions of this Court, to be the scope and meaning of the phrase "industrial matters" as defined in the Act and as imported into and limiting the definition of "industrial dispute" in the Act. We are not concerned I think in this case with the power of the Parliament under s. 51 (xxxv.). We are concerned with the manner in which it has been exercised. (at p329)

Orders

Order absolute to prohibit the respondents and each of them from further proceeding upon or in respect of an order of the Commonwealth Industrial Court made on 15th March 1968, convicting the prosecutors of a breach of sub-cl. 1 (a) of cl. 30 of the Dry Cleaning and Dyeing Industry Award, 1966, and imposing a fine of twenty dollars ($20) in respect thereof. Costs of the prosecutors to be paid by the respondent organization.