R v Findlay; Ex parte - [1953] HCA 81

THE QUEEN

FINDLAY AND ANOTHER; Ex PARTE THE COMMONWEALTH STEAMSHIP OWNERS'

ASSOCIATION AND OTHERS. Industrial Arbitration (Cth.)-Conciliation and arbitration-Casua wharf clerks-

Attendance" money-Award-Variation--Application to conciliation com- missioner-Proposals for payment-Power of commissioner- Industrial matter "-Prohibition-The Constitution (63 &64 Vict. C. 12), S. 51 (xxxv.) -Conciliation and Arbitration Act 1904-1952 (No. 13 of 1904-No. 34 of 1952),

An association of employers applied for a writ of prohibition to restrain a proceeding before a conciliation commissioner in which proceeding an order was sought varying an award applicable (inter alia) to the employment of casual wharf clerks. The variation claimed related to the payment of attendance money to casual wharf clerks who had attended the place of engagement and offered themselves for employment unsuccessfully. The application sought this variation in one of three different ways; the first required that the employer by whom the casual wharf clerk is next employed should be liable for the attendance money; the second that the employer by whom he was last employed should be SO liable, and the third that all the usual employers in the industry in the given port should jointly and severally be liable for the attendance money.

Held, (1) That in respect of the first and second proposed variations the connection between the employment and the purpose of the payment was not remote or tenuous, and that the mere form of the provisions did not show that the subject matter could not be an " industrial matter" as defined in S. 4 of the Conciliation and Arbitration Act 1904-1952.

(2) That as the third proposed variation assumed to include all " employers in a port " independently of their being parties to the dispute and imposed the obligation upon them jointly and severally whether any of them employ the casual wharf clerk or not, it could not lawfully be adopted.

The fairness, justice or propriety of a claim has nothing to do with the question whether it is capable of forming a dispute as to an industrial matter.

90 CLR 622

PROHIBITION.

By a summons dated 4th June 1953 the Federated Clerks' Union

THE QUEEN

of Australia gave notice to, inter alia, the Commonwealth Steamship Owners Association, the members of the Oversea Shipping Repre-

FINDLAY;

sentatives Association, the Broken Hill Pty. Co. Ltd., the Timber Merchants &Sawmillers Association, William Holyman &Sons Pty. Ltd. and the Victorian Employers' Federation, of its intention to apply on 25th June 1953 to G. A. Findlay Esq., a conciliation commissioner appointed under the Conciliation and Arbitration Act 1904-1952, for the further variation of the Clerks' (Shipping) Award 1948 by adding to Pt. I of the award a new cl. 21A as follows :- "ATTENDANCE MONEY

21A. (1) This clause shall apply only to Casual Wharf Clerks whose usual occupation is that of Casual Wharf Clerk. (2) When an employer engages a Casual Wharf Clerk he shall be liable to pay to him a sum equal to four hours pay for each and every ordinary working…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [1953] HCA 81
Decision Date: 1 December 1953

CaseChat Overview and Summary

An association of employers sought a writ of prohibition to prevent a conciliation commissioner from proceeding with an application to vary an award concerning casual wharf clerks. The proposed variation aimed to introduce a system of "attendance money" for clerks who attended a place of engagement and offered themselves for employment but were not engaged. The application presented three alternative proposals for who would be liable for this payment: the employer who next employed the clerk, the employer who last employed the clerk, or all usual employers in the port jointly and severally.

The central legal issue before the High Court was whether the proposed variations constituted "industrial matters" as defined by the Conciliation and Arbitration Act 1904-1952, and therefore fell within the jurisdiction of the conciliation commissioner. The employers argued that the payment was for a period of no employment and thus did not pertain to the relationship between employers and employees. The union contended that the matter was collateral to and preliminary to employment, and therefore fell within the broad definition of industrial matters.

The Court held that the first two proposed variations, which sought to make either the next or last employer liable for attendance money, were capable of being industrial matters. The reasoning was that the attendance of casual wharf clerks to offer their services was a preliminary step to actual employment, performed in accordance with industry custom, and thus pertained to the relations of employers and employees. The Court noted that the definition of "industrial matters" was broad and included monetary allowances for time not actually worked, and that the extended definitions of "employer" and "employee" encompassed those usually engaged in the industry, even if not currently employed. However, the third proposed variation, which sought to impose joint and several liability on all employers in a port regardless of whether they employed the clerk, was deemed untenable as it included employers not party to the dispute and imposed obligations irrespective of any employment relationship.

Consequently, the Court ordered that the writ of prohibition should be discharged, as the first two alternative claims were within the conciliation commissioner's jurisdiction.

Orders