R v Gallagher; Ex parte

[1968] HCA 87

HIGH COURT OF AUSTRALIA

Kitto, Taylor, Menzies, Windeyer and Owen JJ.

REG. v. GALLAGHER; Ex parte COMMONWEALTH STEAMSHIP OWNERS' ASSOCIATION

(1968) 121 CLR 330

23 December 1968

Conciliation and Arbitration (Cth)

Conciliation and Arbitration (Cth)—Industrial arbitration—Industrial dispute—Demand about number of cooks to be carried on ship—Whether industrial matter—Shipping and navigation—Statutory crewing requirements—Whether inconsistent with power of Conciliation and Arbitration Commission to make award—Conciliation and Arbitration Act 1904-1967 (Cth), ss. 4 (1), 71—Navigation Act 1912-1967 (Cth), s. 43.

Decision

December 23.
THE COURT delivered the following written judgment:- Clause 22 of the Marine Cooks Award, 1966 is in the following terms:

"22 - MANNING OF CARGO VESSELS The scale of manning of cargo vessels shall be as follows: - 1 to 19 men - One cook 20 to 39 men - Two cooks (Chief cook and 2nd cook) 40 men and over - Three cooks (Chief cook, 2nd cook, and Assistant cook)."

Earlier awards made in 1918, 1927, 1941 and 1950 respectively have contained not dissimilar provisions relating to the number of cooks to be carried on vessels with crews exceeding a specified number or specified numbers. Now, following the commissioning of the M.T. Cellana - a vessel carrying a crew of thirty-eight - an application to vary the current award has been made by the respondent organization. The variation sought is as follows: "Clause 22 (a). Notwithstanding Clause 22 the manning of the vessel M.T. Cellana shall be one chief cook, one second cook, and one assistant cook." The ground of the application is that the size of the galley provided on the vessel and the type of equipment provided will involve the galley staff in sufficient work to justify the assistance which would be provided by a third cook. Whether this is so or not is not a matter for this Court; what is before us is an order nisi for prohibition addressed to the respondents requiring them to refrain from proceeding with the hearing of the application and raising two questions for our decision. The first is, in effect, whether a dispute as to the number of cooks to be carried on specified vessels, or vessels of specified description, is a dispute as to an industrial matter. Such a matter, it is asserted, does not pertain to the relations of employers and employees but is one exclusively within the province of management. Secondly, it is said that in view of the provisions of Div. 7 of Pt II of the Navigation Act 1912-1967 (Cth) the definition of "industrial matters", contained in Div. 2 of Pt III of the Conciliation and Arbitration Act 1904-1967 (Cth), should be construed so as not to include a matter such as that under consideration or that Div. 7 makes exhaustive and exclusive provision in respect of, inter alia, that matter. (at p332)

2. The leading provision of Div. 7 of Pt II of the Navigation Act is s. 43 (1) which provides that:

"Subject to sub-section (9) of this section, the owner of a ship registered in Australia or engaged in the coasting trade shall not suffer the ship to go to sea, and the master of the ship shall not take the ship to sea, unless the ship carries the prescribed crew for that ship."

The prescribed crew for a ship is the number of persons specified in the scales set out in Sched. II to the Act of each of the descriptions so specified for the class of ships in which that ship is included, or, if regulations prescribing the crew for that ship, or the class of ships in which that ship is included, are in force - the crew so prescribed: s. 43 (2). No relevant regulations have been made so that the comprehensive provisions of Sched. II are applicable. This Schedule makes provision with respect to the minimum number of firemen and trimmers, greasers and seamen that must be carried on vessels of various descriptions and with respect to marine cooks it provides:

" COOKS Steam-ships carrying 25 or Not less than one cook more persons, including and one assistant cook passengers and crew for each galley in use."

It may be observed in passing that by s. 4 of the Act the provisions thereof relating to steamships are to apply, with such modifications as are prescribed, to ships propelled by electricity or other mechanical power. The provisions of sub-s. (1) of s. 43 are qualified by sub-ss. (7), (8) and (9) which permit a master to take his vessel to sea with less than the prescribed crew provided certain conditions are fulfilled and the vessel is carrying not less than the minimum deck and engine-room complement of the ship as defined by sub-s. (12). Section 44 makes special provision with respect to vessels which ordinarily carry a number of seamen of a particular description in excess of the number required to be carried by s. 43 (1) and stipulates that such a vessel shall not be taken to sea with a lesser number than that ordinarily carried even though the number carried is in excess of the prescribed number except upon the fulfilment of certain conditions which need not be here set out. (at p333)

3. These are, substantially, the provisions of the Navigation Act which are relied upon to establish that the provisions of Div. 2 of Pt III of the Conciliation and Arbitration Act do not authorize the making of an award in the terms now sought or in relation to a matter such as was in dispute when the award was made with the provisions of cl. 22 included therein. The provisions in the Navigation Act are not novel and have existed in substantially the same form since 1912 when the first Navigation Act was enacted. (at p333)

4. Considered by itself, s. 71 is quite explicit as to what are "industrial matters"; it defines the term to mean "such matters as would be industrial matters within the meaning of the definition of 'Industrial matters' in sub-section (1) of section four of this Act if the references in that definition to employees were references to seamen only". On the face of the definition there is no reason for treating the range of matters which it embraces as more limited than those referred to in s. 4 of the Act. The point that is made, however, is that the provisions of the Navigation Act are of a special character and that the general provisions of Div. II should be read subject to them. But in our view it is not correct to regard both sets of provisions as enactments dealing with the same topic, one dealing with it in a general fashion and the other with it more particularly. In point of fact they deal with substantially different topics. One set of provisions defines "industrial matters" for the purpose of the rest of Div. 2 which empowers the Commission to settle industrial disputes by conciliation or arbitration and to hear and determine industrial matters submitted to it so far as those matters relate to trade and commerce with other countries or among the States or in the Territories of the Commonwealth whether or not an industrial dispute exists in relation to those matters. The other set of legislative provisions does not purport to regulate or authorize the regulation of industrial matters or the settlement of industrial disputes between employers and employees in the industry; they operate within the legislative competence of the Commonwealth Parliament (as to which see Newcastle and Hunter River Steamship Co. Ltd. v. Attorney-General (Cth) (1921) 29 CLR 357 ) to prescribe one set of minimum conditions that must be observed before a master takes his vessel to sea and they are prescribed as minimum requirements to ensure the safety of the vessel and the safety and comfort of passengers and crew. The principal provisions seem to have been adopted from the New Zealand Act No. 178 of 1908, s. 54 (See now Shipping and Seamen Act 1952, s. 55) and there is nothing in them which requires the definition of "industrial matters" in s. 71 to be read in any qualified way or to suggest that the provisions of the Navigation Act exclude the power of the Commission to deal with a matter such as that now in dispute. This is not to say, however, that a provision of an award made pursuant to the Conciliation and Arbitration Act may not be found to be in conflict with s. 43 of the Navigation Act but this is not the point of the prosecutor's argument nor would it, in the circumstances of the case, be ground for prohibition at this stage. (at p334)

5. Our view on this point reached independently is, we think, strengthened by the long-standing decision of this Court in Federated Seamen's Union of A/asia v. Commonwealth Steamship Owners' Association (1922) 30 CLR 144 , where it was contended that it was not competent for the Commonwealth Court of Conciliation and Arbitration to make an award requiring wages to be paid more frequently that monthly. This contention was founded upon s. 77 (2) of the Navigation Act as it then stood which provided that:

"In cases where the seamen are engaged on time or running agreement on an Australian-trade or limited coast-trade ship, all wages earned shall be paid monthly not later than the first day of each month, or thereafter within twenty-four hours after the ship first arrives at any port in Australia at which there is a banking institution. . . . "

The Court divided on the question and held that there was no conflict between such a provision and an award requiring the payment of wages more frequently than once a month. But although the Court divided it is noticeable that there was really no difference in principle between them. The minority took the view that the statutory provision contained "a direction that the wages to which it applies shall be paid once and once only in every month" whilst a majority took the view that it merely prescribed a minimum requirement and that, since employers and employees were at liberty to agree that wages should be paid more frequently, it was competent for the Arbitration Court so to order. (at p335)

6. Before leaving the point we should perhaps mention s. 75 of the Conciliation and Arbitration Act to which we were referred. This section contains an express provision that an award under Div. 2 may be made inconsistent with Div. 15 of Pt II of the Navigation Act. Division 15, it may be said, provides that: "The Governor-General may make regulations prescribing the accommodation to be provided for the master, officers and crew of a ship and, without limiting the generality of the foregoing, prescribing matters for or in relation to" a considerable number of detailed subject matters. It is obvious that it was thought, and rightly thought, that such subject matters might well be fruitful sources of industrial disputes and, accordingly, it was provided by the first section of the Division - s. 135 - that the Division should apply subject to an order or award made under Div. 2 of Pt III of the Conciliation and Arbitration Act. But the fact that such a specific provision was made does not support the prosecutor's contention that the absence of such a provision in relation to Div. 7 of Pt II of the Navigation Act means that "industrial matters" in s. 71 should be read in any restricted fashion or that the authority of the Commission is excluded by the provisions of the last-mentioned Division. (at p335)

7. The remaining question is whether a dispute as to whether the Cellana should have three cooks on its staff is a dispute as to an industrial matter. The claim has already been set out and it is quite obvious that it is a claim that the work in the galley of the Cellana shall be shared by three cooks and that two cooks should not be required to perform the work. We should have thought that it was beyond argument that a dispute on such a subject matter is an industrial dispute and that it clearly relates to the relations between employer and employees and to work done or to be done by employees. The decision in Melbourne and Metropolitan Tramways Board v. Horan (1967) 117 CLR 78 is the clearest authority for such a proposition and we doubt whether there would have been any dissent in that case if the award impugned had simply stipulated that an employee shall not be required to drive a 'bus without the assistance of a conductor' (see (1967) 117 CLR, at p 85 ). (at p336)

8. In our view the order nisi should be discharged. (at p336)

Orders

Order nisi for writ of prohibition discharged.