R v Kelly; Ex parte State of Victoria

()2 HIGH COURT

[19;)0.

II, ( ' . O K

tliat ground 4 asserts a ])ro])osition which is sound in itself, I do not

1051).

think thaf it entitles the a])|)lieant to a writ of prohibition.

Till': Kin(!

Ground 5 of the order nisi is concerned with the later order made

r.

by Danphy J. on 28th March 1950. It is in the following terms : -

C O SIM O N -

W K A LTII

“ (5) That the ])rovision in the said order that in the event of the

C O K R T OF said George McTseill failing to i)erform or comj)lete any duty therein

(

'ONOII .I.ATION

jjrescribed on or by the time a])].)ointed or failing to attend at any

. ■\unrrn.\-places therein prescribed or otherwise failing to comply with the

TTON ;

terms of the said order or the order made on the 14th day of

K x

F AU TK

G r a n t .December f919 ])erformance, completion, attendance or compliance

I'ullanar .1.by the De])uty Industrial Registrar, Sydney, shall be deemed to be

and shall have the effect of performance, completion, attendance or compliance by or of both Returning Officers was not authorized by the Contmonweallh Conciliation and Arbitration Act 1949 (No. 28 of 1949) or otherwise by law and is invalid and void.”

I regard the question raised by this ground as a question of great practical importance, but i do not regard it as presenting any real difficulty. Even if the point raised were sound in itself, again I do not think that it would afford a basis for a Avrit of prohibition. But I think it reasonably clear that such an order as was made is “ incidental ” or “ supplementary,” within the meaning of s. 9 6 g (3 ) (e ) , to the order already made. Having regard to the nature of the jurisdiction given, I think that a very liberal construc­ tion indeed ought to be accorded to s. 9 6 g (3 ) (e). But, apart altogether from this, it seems to me that a power to make some such order as was in fact made is practically necessary if the general powers given to the court are not to be in danger of being frustrated by Avilful acts or omissions of interested parties. Tn my opinion, ground 5 also fails.

I Avould add one brief observation—at the risk of being thought to exceed my function.

The jurisdiction gicmn by the Act of 1949

is a no el and difficult jurisdiction. Its difficulty is greatly increased by the fact th a t the rules of many registered organizations Avith regard to elections are extremely defective—in some cases almost incredibly defectiA’e. Section 96o (3) (r/) proAudes a means of overcoming the difficulty thus occasioned, and, in my opinion, par. (r/) should, like par. (c), receive a very liberal construction. Doubtless before long something in the nature of a standard order, capable of Auriation to meet each individual case, will be Avorked out. If my Auew that an order leaxung “ safeguards ” to be deter­ mined ad hoc by the returning officers is not authorized by the Act is accepted, it means that the order’must often condescend to ver}'

81 C.L.R.] OF AUSTRALIA.

()3

considerable detail. But I should imagine that this is likely to ‘1-

render it not less practically effective but more practically effective.

I

In my opinion, the order nisi should be discharged.' I’/r E K i x ( i

r.

(JO.M.MON-

Order nisi discharged. Prosecutor to pay the

W E A I .T K

costs of respondents. Costs of Dun/phy J.

( J o i n i T OF

('ONfTÛTIOX

to be as of a submitting respondent.

.AND

A r b it r .a-

T IO N

;

Solicitor for the prosecutor, Harold Rich.

K x P A R T H

Solicitors for the respondent O’Shea, Murphy & Moloney.

O ra nt .

Solicitor for the respondents Commonwealth Court of Conciliation and Arbitration, Dunphy J., Deputy Industrial Registrar, and the Attorney-General of the Commonwealth, K. C. Waugh, Crown Solicitor for the Commonwealth.

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153

HIGH COURT

[1950.

[HIGH COUKT OF AUSTRALIA.]

THE KING

AQAINST

KELLY AND OTHERS;

Ex PARTE THE STATE OF VICTORIA AND ANOTHER.

H.C. OF A. Industrial Arbitration [Cth.)—Award—Validity—Power to make award a common

1950. rule of an industry—Power to fix trading hours of shops—“ Industrial dispute ”

—̂“ Industrial matters ”—“ Matters pertaining to the relations of employers and M e l b o u r n e , employees ”—“ Matters . . . affecting or relating to work done or to be

Feb. 28;

done ”—The Constitution (63 & 64 Viet. c. 12), s. 51 {xxxv.), (xxxix.)—Common­

March 1-3.

wealth Conciliation and Arbitration Act 1904-1949 [No. 13 of 1904—No. 86

Sy d n e y ,

of 1949), ss. 4, 41 (1), (3), 50 (e).

M ay 4.Section 41 (1) of the Commonwealth Conciliation and Arbitration Act 1904­

Latliani

1949, which purports to give power, “ if it appears to be necessary or expedient

Dixon,

McTiernan,

for the purpose of preventing or .settling an industrial dispute . . . or of

Williams, Wet)b

preventing further industrial disputes,” to “ declare

. . . that any term

and

FlillaKar J.J.of an order or award shall be a common i-ule of any indirstry in connection

with which the dispute arose,” is beyond the power conferred on the Common­

wealth Parliament by s. 51 (xxxv.), (xxxix.), of the Constitution.

Australian Boot Trade Employees' Federation v. Whyhrow cfc Co., (1910)

11 C.L.R. 311, apjjlied.

The power conferred by the Commonwealth Conciliation and Arbitration Act 1904-1949 to make an award for the purpose of settling an industrial dispute does not include a power to prescribe the trading hours of shopkeepers who are parties to the award. The time at which a shopkeeper (who may or may not employ labour) may open and close his shop is not a “ matter ” which is within the sphere of the relation of the shopkeeper as employer with any person as employee ; it is therefore not within the definition of industrial matters ” in s. 4 of the Act as being a matter “ pertaining to the relations of employers and employees ” ; as trading hours of an employer are not the same subject as working hours of an emplo3'ee, it is not—under par. a of the definition—a matter “ affecting or relating to work done or to be done,”

81 C.L.R.] OF AUSTRALIA.

65

and it is not within any other paragraph of the definition.

Accordingly, a H. C. of A.

dispute as to such a matter is not an “ industrial dispute ” as defined in s. 4.

1950.

Clancy v. Butchers' Shop Employees Union, (1904) I C.L.R. 181, at p. 207,

T h e

K ing

apphed.

V.

K ell y ;

Australian Tramivay Employees Association v. Prahran and Malvern Tram­ way Trust, (1913) 17 C.L.R. 680, Waterside Worhers' Federation v. Alexander

Ex PAETE

State of

Ltd., (1918) 25 C.L.R. 434, Federated Clothing Trades v. Archer, (1919)

ViCTOEIA.

27 C.L.R. 207, George Hudson Ltd. v. Australian Timber Workers' Union, (1922) 32 C.L.R. -413, Burwood Cinema Ltd. v. Australian Theatrical tfc Amusement Employees' Association, (1925) 35 C.L.R. 528, Amalgamated Clothing cfc Allied Trades Union of Australia v. Arnall <k Sons ; Re American Dry Cleaning Co., (1929) 43 C.L.R. 29, Long v. Chubhs Australian Co. Ltd. (1935) 53 C.L.R. 143, Metal Trades Employers Association v. Amalgamated Engineering Union, (1935) 54 C.L.R. 387, and R. v. Commonwealth Court of Conciliation and Arbitration ; Ex parte Kirsch, (1938) 60 C.L.R. 507, con­ sidered.

Order Nisi for prohibition.

On 20th May 1948 Mr. Frank D. Kelly, Conciliation Commissioner, made an award under the. Commonwealth Conciliation and Arbitra­ tion Act in an industrial dispute in which the Australasian Meat Industry Employees Union was claimant and the Meat and Allied Trades Federation of Australia (an organization of employers) was respondent. The award provided that it should “ be binding on the Australasian Meat Industry Employees Union its branches and its members and on the Meat and Allied Trades Federation of Australia and its members in respect of all their employees in the classifications contained herein whether members of the union or not ” (clause 3) and should apply in the States of Queensland, New South Wales, Victoria and South Australia (clause 4). Clause 16 fixed the hours of labour in retail butchers’ shops and small- goods factories. Clause 1 6 a provided that “ notwithstanding anything contained in clause 16 . . . the following shall be the opening and closing times of butchers’ shops ” [Then followed a prescription of times, varying according to season, day of the week and locality, the details of which are not here material]. Clauses 17 and 18 dealt with meal intervals and overtime respec­ tively. In clause 33 (c) “ butcher’s shop ” was defined as meaning “ any shop, tent, stall, vehicle or place other than abattoirs where uncooked meat (including the preparation thereof) are [sic] offered for sale, i.e., beef, mutton, lamb, pork, veal and/or sausages.” On 8th December 1948, on the application of the federation of employers, to which the union of employees was respondent, the commissioner made an order that the provisions of the award “ shall be a common

VOL. LXXXL-

fit;

[1950.

hix; h (j o u r t

II. C. OK rule of tlu'. industries of l)uteherinff und the sale of fresh meat and

I'loO.the inakiiio for sale or (listril)ution by wholesale of small-goods and meat product,s in the States of New South Wales (witti the exception

T i i n

K i no

of the Cit.y of lirokum Hill), Victoria., South Australia and (Queens­

K ni.i.v :

IC.K I’.Aurio

land ('.xcluding a.ny of such work performed in fiarn and bacon

S t a t u o J''factories in the sa.id Sta,tes. For the purposes of tfiis order ‘ fresh

\ ' l ( ' T ( ) K l A .

meat ’ means uncooked b(;ef, mutton, hutd), pork or veal or pnjpara- tions thereof but does not include sausages, poultry, rabbits, hams, uncoolced or sa.Ited |)igs’ checks or pigs’ trotters, bacon, ham or pork bonc,s.” d'he order further providijd that the common rule should be binding upon (u) the respondent union, its officers and its members respectively ; (h) the applicant federation and the members therciof; “ (c) all employers engaged in the abovmmen- tioned industries and all |)ropri(tors of shops selling fresh mea.t in the aforesaid States ; (c/) all employees whether members of an organization or not enga.ged in the said industries in any of the occupa:tions spcicified in the said award.” This order was varied by an order of 5th Ajiril 1949, and clauses lb and 16a of the original award were varied by an order of 1st iSeptetnber 1919 the jiature of the variations is not material to this re[)ort.

The State of Victoria and its Attorney-Cleneral obtained in the High Court an order nisi for a writ of ])rohibition directed to the commissioner and the ])arties to the award prohibiting them from ])roceeding further on the award and the further orders, the validity of which was challenged on the grounds sui)stantially that there was no power to make a common rule and, as to clause I b A , that the (piestion of the trading hours of sho])s was not an “ industrial matter ” within s. 4 of the Act and therefore not the subject of an “ industrial dispute.”

(1. K. Ihvnricli K.C. (with hitn J). I . Manzies K.C.), for the prose­ cutors. The Constitution does not enable tlie ('ommonwaailth Parliament to confer power on an arbitral tribunal to make an award a, common rule in an industry {/hin/ralum Boot Trade, Bmployees’ Federation v. Whybrow <{: (!o. (I) ). ddie .\ct as amended in 1947 cannot validly confer any greater power than the original pro­ visions on which tlu; case cited was decided. It is true that the new s. 4 1 (1), in providing that tlie court or commissioner, “ if it appears to be necessa.ry or expedient for the purpose of preventing or settling an industrial dispute which comes before- it or him or of preventing further indu.strial disputes,” may declare the award Ac. to “ be a commoti rule of any indu.stry in connection with which

( I ) (lOlO) 11 {'.L.R.

I.

SI C.L.R.] OF AUSTRALIA.

(17

the dispute arose,” introduces a condition whicli was not expressed

fl. ( OF ,\^

in the former s. 38 (/), but this does not bring it any the more

li ».■)(».

within the constitutional power. The former s. 29 (c), which ]>ro-

Thk Kr.N'c

vided that an award .should be binding on “ all organizations and

r.

K k i . i. v

:

persons on whom ” it “ is at any time declared by the Court or i*;\ I'.'Vin’n

. . . commissioner to be binding as a common rule ” is now

S’lwn: OF

s. 50 (e). None of the decisions of this Court since Whybrotv hCase (1) has departed from, or cast any doubt on the correctness of, the decisiorr in that case, and the matter should not now be reopened. Accordingly, the orders of 8th December 1948 and 5th. A[)ril 1949, which. j)urported to malre tlie award of 20th May 1948 a common rule, should be held invalid. So far as the application of the common-rule orders to clause K Ja of the original award is concerned, it ajipears from the facts that the orders were not in. settlement of the original (lis|.)ute, and it is difficult to see that there was any other dispute as to this clause. The declaration, of the common rule in regard to this clau.se was virtually a consent order. Clause H)A pur)>orts to fix the opening and closing hours of “ butchers’ shops '” (as to which see the very wide definition in clause 3.3 (c) of the original award). A claim for such a provision was made in the original log of demands, and on it the award containing clause IGa W'as made. It follows immediately on clause IG, which provides for the hours of labour of em])loyees, and is followed by clauses 17 and 18, providing re.spectively for meal intervals and overtime. After the making of the original award there does not a|)pear to have been any di.spute as to clause IGa, and, when application was made to have the award declared ;i cotnrnon rule, the parties to the award—both employers and employees—were in agreement as to the desirability of the declaration. Apart from the common-rule (jue.stion, however, clause IGa is, it is submitted, beyond any power conferred by the Act because the matter of the opening and closing hours of .shops is not an “ indu.strial matter ” within the (hdinition in s. 4 of the Act and, therefore, cannot be the subject of a,n “ indus­ trial di.spute” as defined in s. 4. This cpiestion is determined by the decision in Cla/ncy v. Butchers Bhoj) Employees Uniofi, (2). That ca.se was decided on a New Houth Wales Act containing a, definition of “ indu.strial matters ” not expre.ssed in the .same terms as in tin; Commonwealth Act, but it will be seen from the judgments that liie view taken of th(! definition would apply ecjually to the lattau'.

The resj)ondent connriissioncr did not appear.

(I) (J9 I0) 11 C.L.R. 311.

(2) ( 1904) 1 C.L.R. 181 : .Sco pp. ISo,

200, 201, 209.

f)S HIGH COURT

[1950.

H. (’, I)F A.R. Ashburner, for the respondent Meat and Allied Trades Federa­ tion of Anstralia. Tdealing first with the prosecutors’ last point, 'J'liK KlXli it is submitted tluit the fixation of trading hours of shops is an

r.

industrial matter within the meaning of the Act.

The prosecutors

K e i . i .v

;

have referred to clause 1G of the award —the hours-of-labour clause—

E x

PA RT H

S'l 'ATF. OI'-

as though it in some way determined the length of time which

V i c t o r i a .

ein])loyees must sj>end in the shops. That is not so ; all the clause does is to fix the ordinary working liours of employees in the shops. Clause 18 (overtime) must also be regarded. The working hours of employees in fact—whether ordinary hours or hours to be reinunerated at overtime rates—are dependent on the trading hours of the shops. It is not correct to regard clause 16 as fixing the maximum hours which an employee can be called upon to work. Nor is it correct to treat the question of the validity of clause 1 6 a in the original award and the common-rule'question as one question, as the prosecutors have sought to do. The first question is whether the commissioner had power to include clause 1 6 a in the original award ; it is submitted that he had. If that is so, quite distinct considerations will determine the validity or otherwise of the common rule. It is not necessary in this case for the respondent to put the first submission as a general proposition covering all industry. I t is sufficient to show, as appears from the facts here, that there is such a relationship between the trading hours of the shops concerned and the hours for which employees may be required to work that the fixation of the trading hours becomes an industrial matter. A comparison of the definitions of “ industrial matters ” in the Act which was before the Court in ClancyA Case (1) and in the Commonwealth Act shows that the latter is so much wider as to make the decision inapplicable. The definition in 'the latter Act, s. 4, includes “ all matters pertaining to the relations •of employers and employees ” ; these words were not in the New ■South Wales Act. Then the Commonwealth definition includes “ (m) any shop, factory or industry dispute, including any matter which may be a contributory cause of such a dispute.” If it is ■suggested that the fixation of trading hours is not generally a matter pertaining to the relations of employers and employees and is not—within par. a of the definition—a matter or thing “ affecting or relating to work done or to be done,” at least a dispute as to trading hours becomes—within par. m,—an industrial matter as a contributory cause of a dispute wffiich is admittedly industrial, namely, one affecting hours of labour. Alternatively, the matter is within the concluding words of the definition in s. 4 (which were

(1) (190'i) 1 C.L.R. 181.

81 C.L.R.] OF AUSTRALIA.

69

not in the New South Wales Act), “ all questions of what is right

H. C. OF A.

and fair in relation to an industrial matter having regard to the

1950.

interests of the persons immediately concerned and of society as a T h e

K in o

whole.” In

Clancy’s Case (1) no argument was put that men were

r.

K elly ;

required to work, or could be required to work, in the shops at

Ex F.4RrE

overtime rates after their ordinary hours of work had concluded. State of

The judgments proceeded on the basis that what happened after

ViOTOKIA..

the men went home—whether the employer kept his shop open or not—coidd not be an industrial matter. It nowhere appears that the Court had before it the consideration that the fixing of trading, hours had a direct relation to overtime and overtime pay. That Clancy’s Case (1) has not been regarded in this Court as an authority on the Commonwealth Act appears from Federated Clothing Trades- V. Archer (2) and Australian Tramways Employees Association v. Prahran and Malvern Tramway Trust (3). As to the power to declare a common rule, the decision in Whyhrow’s Case (4) depended on a much narrower conception of the phrase “ industrial disputes ” in s. 51 (xxxv.) of the Constitution than has since been entertained by the Court. At the time of that decision an “ industrial dispute ” was conceived as being a dispute between actual employers and their- existing employees in an industry, with the solitary extension that an organization as recognized under the Act could represent either employers or employees. I t was also thought that the arbitration power did not extend to the prevention, as distinct from the settle­ ment, of a dispute. [He referred to Whyhrow’s Case (5).] Since then the views of the Court have altered substantially and the conceptions of an “ industrial dispute ” and of the arbitral power have greatly widened. In George Hudson Ltd. v. Australian Timber Workers’ Union (6) the Court upheld the validity of the then recent amendment allowing successors in business to be bound by an award. In Burwood Cinema Ltd. v. Australian Theatrical & Amuse­ ment Employees’ Association (7) it was decided that an employer could be bound even though he did not employ any unionists, the conception apparently being that he might do so in the future. In Metal Trades Employers Association v. Amalgamated Engineering Union (8) it was decided that employers could be bound in respect of all their employees, whether members of the union or not. [He also referred to R. v. Commonwealth Court of Conciliation and

(1) (1904) 1 C.L.R. 181.(4) (1910) 11 C.L.R. 311.

(2) (1919) 27 C.L.R. : See pp. 209,

(5) (1910) 11 C.L.R., at pp. 317, 318„

211, 213, 214, 216.

323.

(3) (1913) 17 C.L.R. ; See pp. 692

(6) (1922) 32 C.L.R. 413.

695, 702, 704, 705, 711, 715, 717, (7) (1925) 35 C.L.R. 528.

718.

(8) (1935) 54 C.L.R. 387.

HIGH COURT

[1950.

H. ('. (IK A.

Jrbilmtwri ; Ex parte Kirsch (1).] Demarcation di.s]mte.s as between

!!).')< I,

unions of eni])Ioyees are well recognized as industrial disputes, and, likewise, it is submitted, there may be disputes as between organiza­

'J'lus K inc

r. tions of employers. Tliere are dicta to that effect, though there is no

K hi.i.y

:

Ex I’AUTE actual decision ; see, e.g.. Metal Trades Case (d). An illustration

.State ukof a. dis])ute between employers can be got from the facts of this \ ’j("roiUA.case. A])art from the coinmon rule the award binds only those

employers who are members of the respondent Federation. It might be that some non-members are undercutting the members as to the wages ])aid to their employees. An industrial dispute could be created by a claim by the Federation or its members for an award that the non-members pay the same rates of wages as fixed in the original award. The matter of the common rule then becomes merely a matter of procedure. One method—but a very cumbersome and expensive one—of obtaining an award binding all employers in the industry would be to seek them all out and serve the demand on them individually. Section 41 (3) provides a simpler method—which is in effect substituted service—by advertisement of the claim for a common rule. When an application is made to have a particular award declared a common rule, it is on the basis that there is at least a threatened dispute between employers bound by the award and the other employers in the industry who are not so bound. It is submitted that Whyhron/s Case (3) should be

overruled.

,

F.

D. Philli'ps K.C. (with him C. 1. Menhennitt), for the re.spon-

dent Australian Meat Industry Employees Union. The decision in Whyhrow’s Case (3) depended on three main conceptions : (1) The Court approached the power in s. 51 (xxxv.) of the Constitution in terms of the reserve powers of the States ; (2) it applied common- law conceptions of arbitration ; (3) having done so, it limited s. 51 (xxxv.) accordingly, without sufficient regard to the fact that the power related to arbitration for the settlement of industrial disputes. The first of these conceptions is no longer relevant. The second is not conclusive. The real question is whether, in the light of experience, it is true that the ])Ower to enact the common rule is not within s. 51 (xxxv.) and (xxxix.). The early view, which has not survived, was that the power which Parliament could confer under s. 51 (xxxv.) was judicial and must not savour of legislation {Australian Boot Trade Employees Federation v. Whyhrow & Co. (4) ). I He referred to Waterside Worhers’ FedercUion v. J. W. Alexander Ltd. (5) ; Clyde Enyineeriny Co. v. Cawburn (G).] The result of the

(1) (1938) 60 C.L.R. .507.(4) (1910) 10 C.L.R. 266.

(2) (193;)) ;54 C.L.R., at p. 403.(.5) (1918) 25 C.L.R. 434.

(3) (1910) 11 C.L.R. 311.

(6) (1926) 37 C.L.R. 466.

81 C.L.R.] OF AUSTRALIA.

71

more recent authorities is that in one way or another a union can

H. C. OF A.

effectively bind every existing employer in the industry, whether he

1950.

employs members of the union or n o t; and can bind him if he gets

I'llE KiN<!

unionist employees in the future ; and can bind all businesses with

V.

KiSI.LV ;

regard to their successors. The only employer who is outside the

Ex P.4RTJS

scope of an award, in fact, is a newcomer into the industry after iState of

the date of the award. However, by fresh service of demands

ViCTOBtA.

and variation of the original award he can be brought in ; but the award can be made to speak, on the day that it is pronounced, with respect to the whole of the employers in the industry except future entrants. In practical terms, therefore, the question of the common rule comes down to this : Is it incidental to the Parlia­ ment’s power to make laws with respect to arbitration to authorize the arbitrator—if he thinks it proper to do it—to make an order having the effect of bringing within the scope of the award one class that otherwdse would not be within i t ; namely, the employers who come into the industry and establish a neŵ business and do not buy out an existing one after the date of the award ?

[L atham C. J. And also the other class; namely, existing

employers who have not been made parties to a dispute and who

have not been concerned in any arbitration proceedings.]

That is so, but, as Mr. Ashburner has pointed out, they can be made parties. Settling a dispute by an arbitrator does not neces­ sarily mean quietening the disputants ; it means making an order which is as just as the circumstances demand. I t may be that an order imposing obligations on employers will not be a just and proper settlement of the dispute unless it be made a common rule. M’hat Parliament claims to be able to do is to equip the arbitrator with power fairly and properly to settle a dispute. An arbitrator may make an award on the supposition that he has provided a just settlement of the dispute, and thereafter it may appear that it was not a just settlement; if such appears. Parliament says that the arbitrator has what may be a necessary power justly to settle the dispute ; namely, the power to make the award a common rule. [He referred to Master Retailers’ Association of Nevj South Wales V. Sho]) Assistants Union of New South Wales (1).] It is conceded that making the common rule is not in itself an arbitral procedure, but in a proper case it is incidental to just arbitration. Cases which, though not directly in point here, show the great lengths to which the incidental power in relation to s. 51 (xxxv.) has been carried are

(1) (1905) 2 C.L.R. 94, at p. 112.

72 HIGH COURT

[1950.

H. C. OF A. Stcmp V. Australian Glass Manufacturers Co. Ltd. (1) ; K. v. Taylor

U)50.(2). Some light on what is incidental to the arbitration j)Ovver

may be gained from seeing how ultimately the arbitration j)ower

Tiin

K i n (s

V. itself has developed. On this matter, see the summary of the

IVHLLY ;

evolution of the power by Diron J. in the Metal Trades Case (3).

K x

I'ARTK

S'I'ATU OF No (]uestion of the ambit of an iTidustrial dispute arises in connection

N'H'TOIUA.

with the common rule. The common-rule power is not a power to regulate industry inde])endently of an award or outside a dispute ; it is merely a ])ower to settle a dispute by adding something which goes beyond the ambit of the dispute itself but which is called into existence by the necessity of setthng the dispute within its ambit. The effect of s. 4-1 is to enable the arbitrator to make a common-rule order in connection with an award which he has power to make, and not otherwise. If literally it is capable of some more extended meaning which would take it beyond the constitutional power, it should be so read as to keep it within power. On the facts of this case it is clear that the reason for the common rule was the unfair­ ness of competition imp>osed on the employers bound by the award unless the award was extended to all other employers. It is sub­ mitted, therefore, that Whybrow’s Case (4) should not be applied to the Act in its present form. As to clause 1 6 a of the award— considered in the first instance apart from the common-rule question —it is submitted that an “ industrial matter ” is involved : namely, how long shops in which employees are engaged should be kept open, with or without the employees—how long shops with pro­ prietors who have employees should keep them open, whether they keep their employees back or whether they send them home and keep the shops open. The question how long the working place in which employer and employee are concerned oj^erates in each day is a matter pertaining to the relation of employer and employee. That is to say, if it is assumed that there are no shops without employees at all, then the hours at which the shops should remain open—all shops having employees—is a matter pertaining to the relation of employer and employee. Then it does not cease to be such because it is assumed (contrary—as must be known—to the facts in a great many cases) that the shop can continue open, after the employees’ working day is done, with the proprietor and his family. With regard to the supposed sho])s that do not have employees, this respondent does not contend that the matter of their trading hours is an industrial matter : They are reached

(1) (1917) 23 C.L.R. 226.

(3) (1935) 54 C.L.R., at pp. 428

(2) (1949) 79 C.L.R. 333.

et seq.

(4) (1910) 11 C.L.R. 311.

81 C.L.R.] OF AUSTRALIA.

73

because the arbitrator, having made an award on an industrial

H. C. OF A.

matter—on an industrial dispute—namely, the trading hours of

19.50.

shops Avhich have employees, says that the common rule extends

T he K ing

the rule of the award to non-employee shops by virtue of his

V.

K b l i.y ;

statutory authority to make a fair settlement of the industrial

E x PARTE

matter—the trading hours of shops which have employees. Thus,

State of

it is conceded, by the common rule the arbitrator can affect some

VlCTORI.V

non-industrial situations ; but it would be a mistake to assume that this involves a vast extension of the arbitrator’s primary power. I t is much more likely to be confined to marginal cases. The power which the arbitrator undoubtedly has to make awards in industrial matters is much more significant socially than any additional power he may get by way of the common rule.

G.

Gowans K.C. (with him R. L. Gilbert), for the Commonwealth

(intervening by leave).

The Commonwealth is concerned with two*

constitutional aspects of this case. The first relates to clause 16a of the award. I t is desired to leave to the parties the question whether this is an “ industrial matter ” within the meaning of the A ct; but it appears to be implicit in the prosecutors’ argument that the matter of this clause could not be the subject of an indus­ trial dispute within the meaning of the Constitution, s. 51 (xxxv.),. and this view it is desired to contest. The term “ industrial disputes ” is wide enough, it is submitted, to cover any dispute between employers and employees in the industry which touches or relates to the industrial relations of either employers or employees. The dispute must arise in the industry, but it is not necessary that it be confined to the relations of employers and employees with each other. There may be a relation between A and third persons which is an industrial relation, and a claim may be made by X against A in relation to the industrial relations subsisting between A and B. That is illustrated by the Metal Trades Case (1) : See also Archer's Case (2). The reasordng in those cases is incon­ sistent with that in Clancy's Case (3). See also the Tramways Case (4) ; R. v. Commonwealth Court of Conciliation and Arbitration ; Ex pa.rte Australian Paper Mills Employees' Union fS) ; Burwood, Cinem,a Case (6). When the question is whether a dispute is industrial or not one is concerned only with two things, (1) whether the dispute arises between persons in the industry and (2) whether

(1) (]935) .54 C.L.R. .387: See pp.

(4) (1913) 17 C.L.R. 680, particu­

402, 40.3, 416.

larly at p. 704.

(2) (1919) 27 C.L.R. 207, particu­

(.5) (1943) 67 C.L.R. 619, at p. 631.

larly at pp. 213, 217.

(6) (1925) 35 C.L.R., at pp. 539, 541„

(3) (1904) 1 C.L.R. 181.

548.

74

HIGH COURT

[1950.

H. OF A.

it touchcH oi' concenis the industrial relations in the industry of

19.̂ 0,

either of the di,s[uitants. It is not contended that a di.spute touches or concerns the indu.strial relations of the di.sputants merely becau.se

'I'llK K i n i ;

r. it is claim made by employee.s again.st employees or vice versa ;

Ivicl.i.v ;

E x 1>..\UTK

for instance, a claim by employees against employers that the

S t a t i c o f

employers should join a certain religion.

\ ’ IC'TOKI.-\.

[ Fullagar j .

The position must be such that any award made

will aflect the relations between employer and employee 1J

Yes, it must affect them at least jiroximately ; not necessarily directly, but, on the other hand, not merely remotely. To take a case where employees are claimants, the te.st is wRether the claimants have a practical interest which arises out of or relates to their employment, or arises out of or relates to their industrial relations, so that the claim, if granted, would tend to affect conditions of employment in their favour. The position is the same wdiether the dispute is between employees and their employers, betw'een employers respondents and other employers or between employee and employer claimants and non-employers who are engaged in the industry. As to a claim against non-employers for limitation of trading hours, the question would be whether the trading hours of the non-employers had a .sufficient proximate effect on the working hours of the claimants. As to the common rule, it is submitted that ss. 41 and 50 (e) are valid. Section 41 (1) forms a contrast with the old s. 38 (/), and also with the present s. 41 (2), relating to the Territories (where the legislative power depends on s. 122— not s. 51 (xxxv.)—of the Constitution). In s. 41 (2), Parliament has preserved substantially the same words as in the old s. 38 (/), but in s. 41 (1) it has introduced words which are obviously intended to be both significant and narrowing. Under s. 38 (/) the prelimmary consideration was whether there was an industrial dispute of which the Court had cognizance. Under s. 41 (1) there must come before the arbitrator an industrial dispute (which, by definition in s. 4, includes a threatened, impending or probable dispute) and it must appear to be necessary or exj^edient for the purpose of preventing or settling such dispute or preventing further disputes to make the common rule. Then, under s. 41 (3), there must be notification by advertisement to persons or organizations interested so that an opportunity is given for them to be heard. Section 50 (e) is a direct provision that the persons or organizations declared to be bound shall be bomid. The question whether the process of arbitration can be applied to prevent a dispute as well as to settle an existing dispute has been determined in the affirmative {Merchant Service

81 C.L.R.] OF AUSTRALIA.

75

Guild of Australasia v. Newcastle & Hunter River Steamship Co. Ltd.

A.

[Ao. 1] (1) ). Section 41 can be compared with s. 14, which is the main section conferring jurisdiction on conciliation commissioners.

T h e Jvihc,

Under s. 14, before he gets to the stage of arbitration, at the time

V.

K elly ;

when he ascertains that a dispute exists or is likely to occur, the

Ex PARTE

commissioner has to ascertain the parties to the dispute and the State of

matters which form the subject of the dispute. Under s. 41, at the

V ic to r ia .

stage when the question of making a common rule arises, the commissioner must ascertain the classes of persons interested in the dispute. I t may be that only at that stage the dispute receives sufficient definition to enable the process of arbitration to take place. If the matter rested entirely on s. 51 (xxxv.) of the Constitution, perhaps Parliament could not empower the arbitrator to make an award in the first instance which would bind any but the persons or organizations which are before him or those that they represent. But s. 51 (xxxix.) enables Parliament to take the matter further, as has already been submitted on behalf of the respondents. As to the objection that ss. 41 and 50 (e) purport to bind non-disputants, it has already been held (as a general proposition—though not with particular reference to the common rule) that there is a power to bind non-disputants {Hudson’s Case (2) ). This would seem to depend on the incidental power. The result of that decision is that there is power to bind a person who has not been notified of any dispute, has not been called—or given an opportunity of being heard— before any tribunal and who is not represented by any organization which is before the tribunal. The class generally in respect of which the dispute arose having been ascertained, the obligations of the award are extended into the future to include persons who subsequently come within that class. Section 41 may be described as contemplating the extension of the award “ laterally ” to include persons who are not strictly disputants but are within the industry to which the dispute relates, who are—so to speak—within the area of the dispute. This is equally within the logical basis of Hudson’s Case (2), and the same may be said as to provisions such as ss. 40 (/), 50 (b) and (c).

G. E. Harwich K.C., in reply. The two resjrondents in this case have sought—each by a different ap]>roach—to give clause 1 6 a of the award a construction which will limit it in some way so as to bring it within an employer-employee relationship. The argument of Mr. Phillips, in particular, seeks to read into the clause restrictive

(1) (1913) 16 C.L.R. .591 : See pp.

(2) (1922) 32 C.L.R. 413.

633, 643, 644:.

HIGH COURT

[1950.

H.('. (.IF A. words wliicli are not warranted l>y anything to be found in the

1U5(I.award and in some cases will leave it in doubt, as to how the clause is to operate. In the origimil award (apart from the common rule)

T h F I v lN d

r. the clause is a perfectly general one, litnited -as to the persons to

Riou.v ;

lOx I'AHTF

be bound—only by the words of clause d to the effect that the

S t a t i c o faward shall be binding on the respondent union and its members

\'R'T0IUA.

and on the res])ond(int Federation “ and its members in respect of all their employees in the classifications contained herein whether members of the union or not.” if this clause was to have the effect claimed, it would itself have to have words read into i t ; it would need to be expressed to be binding on the Federation “ and its members, if employers, in resjiect of ” &c. This would not give the award its natural construction. Moreover, it would create difficulty in the case, for exarnple, of the proprietor of a small business, who .sometimes has, say, one enpiloyee and sometimes none. There is no such inter-relation between clause 16a and clauses 16 and 18 as was sugge,sted by Mr. Ashburner. Clause 16a is quite independent of the provisions as to hours of employment and overtime. It w'ould not be an apt order to make in a dispute as to the hours at which employees .should be required to work ; the appropriate order in .such a case would be one directly providing that employees should only be employed during hours specified. The argument for the re,spondents has not succeeded in showing that the clause is within any of the words of the definition of “ indu,strial matters.” Clancy’s Case (1) is not distiiigui.shable on the ground which has been suggested. The argument as reported wmuld seem to have brought sufficiently to the mind of the Court such bearing as trading hours of shops might have on hours of employment. The definition of “ indu,strial matters ” in the Act then before the Court was no narrower than that in the present Commonwealth A ct; if anything, it wms wider. As to the common rule, it is contended by the resj^on- dents and by the Commonwealth that the ])resent s. 41. is limited in a way in which the original s. 38 (/) was not by the introduction of the words of the condition relating to the prevention or settlement of di.sputes. Section 41 does differ in certain res[)ects from, s. 38 (/), but not in the manner so suggested. Section 38 (/) was itself con­ ditioned on the Court’s being engaged in settling a disy)ute of which it had cognisance under the former s. 19 (now repealed). Therefore, no change has been made by way of limiting the purjiose of the exercise of the power to make the common rule. A change does, how'ever, seem to have been effected in this way. Section 38 (/) spoke of “ a common rule of any indnstry in which the dispute

(1) (1904) 1 C.L.R. IBl : See pp. 191, 194, 196.

81 C.L.R.] OF AUSTRALIA.

77

arises " ; in s. 41, the word “ arose ” is substituted for “ arises.”

H. C . OF A.

The arguments both of Mr. Ashburner and Mr. Gowans appear to

1950.

be founded on the assumption that the common-rule power now

T he K ing

extends to the declaration of the rule in a new dispute, not neces­

V.

K elly ;

sarily in the same industry as the original dispute or having the

E x PARTE

same parties. The section does seem wide enough as a matter of State

of

construction to support such arguments, but that does not contribute

V iCTORI.l..

in any way to its validity. At all events, the reasoning of Whybrow’s Case (1) is at least as applicable to the new section as it was to the old one. Such changes as there may have been since in judicial views as to what is “ arbitration ” and what is an “ industrial dispute do not touch the present question. The view that there must be a dispute—necessarily involving ascertained disputants— still remains, and that is the fundamental consideration here. So far as threatened or future disputes are concerned, they must still be disputes between ascertained disputants. Whether the common rule is regarded as one operating universally in an industry or as having some less extensive operation by reason of s. 50 (e), it neces­ sarily has the effect of extending the award to non-disputants. The idea that a person might be represented in a dispute by an organiza­ tion was already current at the time of Whybrow’s Case (1). The later decisions are merely applications of this idea, so that “ dis­ putants ” must be understood as meaning those who are in fact disputants or those who might be described as their privies either by representation or succession. These decisions have not impaired the authority of Whyhrow’s Case (1) ; rather they have reinforced it. Problems such as arose in the Metal Trades Case (2), for instance, need not have arisen if the power to make a common rule had been recognized. As to the incidental power, the argument really comes to this ; that a power to bind non-disputants can be incidental to a power which itself is limited to binding disputants—in effect, that the incidental power may be inconsistent with the main power. There is no authority to support this. The suggestion that the common rule is or may be necessary to do justice between the parties to a dispute hides the real problem. There is no general power “ to do justice ” ; the powers of the arbitrator are those validly conferred by the Act. The argument that the common rule, being declared at a later stage than the original award, is in settlement of the original dispute must fail on the facts here ; there was no claim for a common rule in the original dispute. If it is a question of settling a new dispute, there is no evidence here of any new dispute.

(1) (1910) 11 C.L.R. 311.

(2) (193.5) 54 C.L.R. 387.

rs HIGH COURT

[1950.

H. (’. OP A. p p Phillips K.C., by leave, referred to Victorian Chamber of Mamifact'ures v. The Cammiomvealih (Women’s Employment Case) (1).

Till': K ino

r.Cur. adv. vuU.

K elly

;

l•'-X

,1'AHTE

State oe

The t!()URT delivered the following written judgment:—

\'R’T0RIA. This is the return of an order nisi for a writ of prohibition

Muy I.directed to Mr. F. D. Kelly, a Conciliation Commissioner, under

the Govtmonwealth Goncilmtion and Arbitration Act J 904-1949 and others, ])rohibiting them from jiroceeding further upon four awards or orders dated respectively 20th May 1948, 8th December 1948, 5th April 1949 and 1st September 1949. The first of these instru­ ments is an award made by Mr. Kelly in a dispute in which the Australasian Meat Industry Employees’ Union was claimant and the Meat & Allied Trades Federation of Australia (an organiza­ tion of employers) was respondent. This award dealt in detail with wages, hours of work, and many other matters. The order of 8th December 1948 provided that the “ regulations, rules, customs, terms of agreements and conditions of employment ” determined by the award should be “ a common rule of the industries of butchering and the sale of fresh meat and the making for sale or distribution by wholesale of small goods and meat products ” in the State of Kew South Wales (with the exception of the City of Broken Hill) and in the States of Victoria, South Australia and Queensland. The term “ fresh meat ” is defined. It is declared that “ the common rule shall be binding upon ” (a) the Australasian Meat Industry Emjrloyees’ Union, its officers and members respectively, (h) the Meat & Allied Trades Federation of Australia and the members thereof, (c) all employers engaged in the above-mentioned industries and all proprietors of ■shops selling fresh meat in tlie aforesaid States, (d) all employees whether members of an organization or not engaged in the said industries in any of the occupations specified in the said award. The order of 5th April 1949 varied this order in a manner not material for present purposes.

The first of the two main questions raised by the order nisi is whether the order of 8th December 1948 making the award a “ common rule ” is valid. It appears that a ].)revious award in 1944 had been made a common rule of the industry by Chief Judge Piper acting under the power conferred by reg. 6 of the National Security (Industrial Peace) Peguhiiions, but no argument was

(1) (1943) 67 C.L.R. .347, at p. 403.

81 C.L.R.]

OF AUSTRALIA.

addressed to the Court based upon the Defence {Transitiorial Pro­

H . C. OF A.

visions) Act 1946-1949, which purports to keep those regulations in

19,j0.

force until 31st December 1950. The common rule in this case T in s K inc;

was made by a conciliation commissioner and the Industrial Peace

V.

K e l l y ;

Regiihtions gave power to the court, and not to a commissioner, to K x

P A R T E

S t a t e o f \ a C T O B I A .

make a common rule. The reasoning in R. v. Foster (1) shows,

moreover, that the regulations were no longer in operation in

December 1948. The making of the common rule is, however, l . i l t l K l I U

C.J.

Dixon J.

authorized in terms by s. 41 of the Commonwealth Conciliation and

McTiernan J.

Williams .T.

Webb J.

Arbitration Act 1904-1949. Sub-section (1) of that section, which

I''iillagar J.

was inserted by Act No. 10 of 1947, provides :—“ The Court or a Conciliation Commissioner may, if it appears to be necessary or expedient for the purpose of preventing or settling an industrial dispute which comes before it or him or of preventing further industrial disputes, declare by an order or award that any term of an order or award shall be a common rule of any industry in con­ nexion with which the dispute arose.” Sub-section (-3) provides that, before a common rule is declared, certain notices shall be published and interested persons desiring to object shall be heard. The question at issue, therefore, resolves itself into this—whether s. 41 (1) of the Act is within the legislative power conferred upon the Parliament by pars, (xxxv.) and (xxxix.) of s. 51 of the Con­ stitution.

In 1910 in Australian Boot Trade Employees' Federation v. Whyhrow A Co. (2) it ŵ as unanimously held by a Court consisting of Griffith C.J. and Barton, O’Connor, Isaacs and Iligyins JJ., that the Con­ stitution did not authorize the Parliament to confer upon the tribunal constituted under the Act power to declare a common rule in an industry. At that time, and up to 1947, the relevant provision of the Act was contained in s. 38, which provided :— “ The Court shall, as regards every industrial dispute of which it has cognisance have power . . . ( / ) to declare by any award or order, that any practice, regulation, rule, custom, term of agreement, condition of employment or dealing whatsoever determined by an award in relation to any industrial matter shall be a common rule of any industry in connection with which the dispute arises.” It is clear, however, that no distinction can be drawn between the present case and Whybrow’s Case (2) on the basis of any difference between the language of the old s. 38 (/) and the new s. 41 (1). The reasoning of all the judgments in Whybrow’s Case (2) makes it quite plain that it is by reason of its inherent nature that the common rule is held to be outside the constitutional power. That which is actually

(I) (1949) 79 C.L.R. 40.

(2) (1910) II C.L.R. 311.

80 HIGH COURT

[1950.

H. uF A.

authorized by s. 41 (1) is exactly the same thing as that which was

195U.authorized by s. 38 (/), and it was held that that very thing could not

be constitutionally authorized.

This was because the constitutional

'I'liE K ing

V.power is liraitetl to conciliation and arbitration between disputing

K kli.v ;

J'lX I'jUt'J'lOparties, and to make a common ride is to go outside the scope of

State of conciliation and arbitration and to assume a function of general

ViriDKiA.industrial legislation. It was clearly recognized by both Isaacs J. (1)

l.athaiii (.'.J.

Dixon J. and Higgins J. (d) that it nught (to use the words of s. 41) be

McTionmn J.

Williams ,1.“ necessary or expedient for the purpose of settling an industrial

\Vol)b .1. dispute ” to make a common rule. But each, like the other members

Fiillagar .1.

of the Court, rejected the contention that this afforded any reason for saying that a specific function essentially different from con­ ciliation or arbitration was “ incidental ” to conciliation or arbitra­ tion. Isaacs J. (3) said ;—“ It is not open to the grantee of the power actually bestowed to add to its efficacy, as it is called, by some further means outside the limits of the power conferred, for the purpose of more effectively coping with the evils intended to be met.” Then follows a passage which concludes with the well known and often quoted saying that “ you may complement, but you may not supplement, a granted power.”

If, then, the common rule is to be upheld in this case, it is necessary that Whyhrow's Case (4) should be overruled, and we were invited to overrule it. Whyhrow's Case (4) ought not, in our opinion, to be overruled. The decision has stood for forty years, the reasoning of the judgments commends itself to us as unanswerable, and the main argument presented to us, while it has commanded considera­ tion, does not seem to us to cast any doubt upon that reasoning.

The argument naturally founded itself on changes which have taken place over the years in the accepted view of the nature and scojie of the power conferred by s. 51 (xxxv.). The view adopted by the majority of the Court in the first Whyhrow Case (5) with respect to inconsistencies in Federal awards and State laŵ s was expressly overruled in Clyde Engineering Co. v. Cowburn (6), but the reasoning of the dissenting judgments of Isaacs and Higgins JJ. in the first Whyhrow Case (5), wFich was in substance adopted in Cowburn's Case (6), has no bearing on the power to make a common rule. Isaacs and Higgins JJ. were themselves parties to the decision as to the common rule in the third Whybrow Case (4). It was suggested that in 1910 the view was entertained that the power to arbitrate, which is conferred by the Commormealth Conciliation and

(1) (1910) 11 C.L.R., atpp. 337, 338.(4) (1910) 11 C.L.R. 311.

(2) (1910) 11 C.L.R., atpp. 345, 346. (5) (1910) 10 C.L.R. 266.

<3) (1910) 11 C.L.R., at p. 338.

(6) (1926) 37 C.L.R. 466.

81 C.L.R.] OF AUSTRALIA.

8]

Arhitmtion Act, partakes of the nature of judicial power, and that H . 0 .

o r .A.

this view was rejected in Waterside Worhers’ Federation v. Alexander

19.50.

Ltd. (1). It was also suggested that it is now established that the T he

Kint.

arbitral power is of the nature of legislative power rather than

V.

K ell y ;

judicial power, and the decision that the common-rule provisions E x PASTE

were invalid was said to rest fundamentally on the view that the

State of V ic to r ia .

arbitral power was judicial in its nature.

But the argument will

not really bear examination. I t employs words in different and

Latham C.J.

Ui.xon J.

misleading senses. On the one hand, the comparison in the

McTiernan .T.

Whyhrow

Williams J.

Webb J.

Cases between the arbitral power and judicial power was only I’ullaaar J.

intended to illustrate and emphasize the fact that s. 51 (xxxv.) does not enable the Parliament to legislate, or to authorize any other body to legislate, on the general subject of industrial con­ ditions. On the other hand, it was not suggested in Alexander’s Case (1) that the arbitral power was in any relevant sense a legisla­ tive power. On the contrary, Isaacs and Rich JJ. (2) were careful to point out that an arbitrator did not legislate in the true sense : he made a determination, and the Act then operated to give to the terms of his determination the “ character of a legal right or obliga­ tion.” A hen it is said that industrial awards are of a legislative character, the point of the statement is to be found in the fact that such awards prescribe rules of conduct for the future in respect of the disputing parties and do not determine the rights and duties of those y>arties under the law as it already exists.

In George Hudson Ltd. v. Australian Timber Worhers’ Union (3), it was held that the provision in the Commonwealth Conciliation and Arbitration Act that an award should be binding on successive assignees and transmittees of the business of any party bound by an award was valid. But this decision lends no countenance to the common rule. Isaacs J. made this plain (4). The pro­ vision in question simply made the award effective “ throughout the whole ŷ eriod of its operation for and against those who during that period are or voluntarily come vnthin the area of the dispute.” (The italics are the italics of Isaacs J.)

The most substantial argument for the common rule, however, rested on a series of cases which begins with Burwood Cinema Ltd. V. Awstralian Theatrical & Amu.sement Employees’ Association (5) and may be said to end with Metal Trades Employers’ Association

V. Amalgamated Engineering Union ( 6 ) . The other cases in the

series are Amalxjamated Engineering Union v. Alderdice Fty. Ltd. (7),

(1) (1918) 2.5 C.L.R. 4.34.(;5) (192.5) .3,5 C.L.R. .528.

(2) (1918) 2.5 C.L.R., at p. 463.(6) (1935) .54 C.L.R. 387.

(3) (1922) .32 C.L.R. 41.3.(7) (1928) 41 C.L.R. 402.

(4) (1922) 32 C.L.R., at pp. 440, 441.

VOL.

L x x x r . — 6

S2

HIGH COURT

[1960.

H.C.UK A.A'>nalf/am(Ue(] Clolhinr/ cfc Allied Trades Union of Australui v.

1950. D. E. Armdl & Sons (1) and Lonfj v. Chubbs Australian Co. Ltd. (2), and to the list sliould be added R. v. Cornmommalth Court of

'I'lUC

K l N ( i

Conoiluitmi, ami Arbitration ;

Ex parte Kirsch (3).

AlderdicEs

K e l l y ;

I'l.V .PAKTU

Case was overruled by the Metal Trades Case. In the first of

. '^T.\TE OKthese cases, the Burwood, Cinema Case, the reasons for judgment

VrcroKiA.

give no sup])ort to the [iroposition that power to make a common

i.at iuui i IHxoii .1, ('..r.rule can validly be given to the court or to a conciliation commis­

McTii'niaii .1.

Williams J. sioner.

Lsaacs J. expressly says that “ the common rule as one

Webb J.extreme is excluded ” (4). The principle upon which the doctrine

'̂lllUlgiU■ .1.

of the Metal Trades Case rests is “ that the interest which an organization of employees possesses in the establishment or main­ tenance of industrial conditions for its members gives a foundation for an attempt on its part to prevent employers employing anyone on less favourable terms. As a result an industrial di.spute may be raised by it with employers employing none of its members, and an award may be made binding such emjjloyers and regulating the terms and conditions upon which they may employ unionists or non-unionists ” (per Dixon J. in 72. v. Contmomvealth Court of Conciliation and Arbitration ; Ex parte Kirsch (5) ). But in such a case there is ex hypothesi a dispute between the organization and the employers whom it is sought to affect by the award. The award does not affect any non-disputant. It does not create (as the common rule would create) actual rights and duties as between persons who are non-disputants. According to the theory of the Metal Trades Case it does nothing that is “ foreign to arbitration ” (per Isaacs J. in Arnall’s Case (6) ). This is made plain by Latham C.J. in the Metal Trades Case (7). A common rule does effect a result which is “ foreign to arbitration.” The di,stinction may seem technical, and the practical result of observing it may be, as Mr. Ashburner said, merely to compel the joining of many additional j)arties as respondents before the court or commissioner—but any parties so joined would not be bound by an award made in relation to the dispute unless they were parties, not only to the proceedings, but also to the dispute. The distinction has been observed and emphasised throughout the whole series of cases, it is a clear and logical distinction, and, in our opinion, it ought to be observed and the power to make a common rule denied.

The other question in the jrresent case relates to the validity of clause 1 6 a of the award of 20th Alay 1948. Clause 16 of the award

(1) (1929) 43 C.L.R. 29.(5) (1938) 60 C.L.R., at pp. 537, 538.

(2) (1935) 53 C.L.R. 143.(6) (1929) 43 C.L.R., at p. 44.

(3) (1938) 60 C.L.R. .507.(7) (1935) .54 C.L.R., at p. 408.

(4) (1925) 35 C.L.R., at p. .541.

81 C.L.R.] OF AUSTRALIA.

83

deals with hours of labour, providing for what are to be deemed to

H. C. OF A.

be “ ordinary working hours.” Clause 17 provides for meal inter­

1950.

vals, and clause 18 for overtime. Clause 18 declares [inter alia)

T he Ivi-NG

that all time worked outside the ordinary working hours on any

r.

K elly ;

one day shall be deemed to be overtime and shall be paid for at

Ex P.A.RTH

time and a half. These clauses are not challenged. But clause 1 6 a St .\te

op

is attacked. I t need not be set out in full. I t provides that \'lCTUR[.4.

.Latham C..T. Di.xoii

“ notwithstanding anything contained in clause 16 of this award

the following shall be the opening and closing times of butchers’ ^IpTim ian ,T.

WiDia.iis J .

Webb .J. Tullagar .f.

shops.”

Then follows a detailed prescription of the hours of opening

and closing, which differ according to season, day of the week, State, and district. The clause was amended in certain details by the order of 1st September 1949. The term “ butcher’s shop ” is dehned by clause 33 of the award.

We think that, as a matter of construction, clause 1 6 a operates to compel all proprietors of butchers’ shops who are among the parties bound by the award to close their shops at the times specified irrespective of whether they employ any employee or employees. It applies, in our opinion, to shopkeepers who employ no labour equally with shopkeepers who employ labour. It was sought to limit the application of clause 1 6 a by reference to clause 3 which provides that the award “ shall be binding on the Australasian Meat Industry Employees’ Union its branches and its members and on the Meat & Allied Trades Federation of Austraha and its members in respect of all their employees in the classifications contained herein whether members of the Union or not.” But it seems impossible to apply clause 3 so as to limit in any intelligible way the operation of clause 1 6 a . No meaning can be attached to an

obligation to close shops “ in respect of employees.”

The shop must

be either closed or not closed. It seems equally impossible to apply clause 3 so as to limit in any intelligible way the operation of clause 35 (6), which provides that deliveries of meat (subject to certain extensions) shall not be made outside the opening and closing hours of retail shops. We think that the true purpose and effect of clause 3 is to provide that, so far as the award affects employees, it shall bind members of the employers’ organization in respect of all their employees whether those employees are members of the union or not. So construed, clause 3 has no limiting or qualifying effect on clause 1 6 a or clause 35 (b).

The question of the validity of clause 1 6 a depends ])rimarily on the question whether it deals with an “ industrial matter ” within the meaning of the Commonwealth Conciliation and Arbitration Act.

HIGH COURT

[1950.

H, ( ' , O F A,

Tlie term “ industrial matters ” is defined l)y s. 4 as meaning “ all

]i)50.

matters pertaining to the relations of employers and employees

Tiik Kixc The definition goes on to ])rovide that the term includes a number

r.

of sjiecified matters, but the subject matter of clause 16a cannot be

K k i .ly

:

brought within any of these, unless jierhaps it be “ (a) matters or

Ex

I ’A R T F .

S ta tu o fthings affecting or relating to work done or to be done.”

We do

N ' l C T O U f A .

not thinlv that the subject matter (the closing of shops as distinct

Latliain ('..1.Dixon .). from the tvork of employees in shops) is a “ matter pertaining to

-McTienian •). the relations of employers and employees.” The words “ pertaining

Williams .].

W('t)l)

Vuilasiar J .to ” mean “ belonging to ” or “ within the sphere of,” and the

ex])ression “ the relations of employers and employees ” must refer to the relation of an employer as employer with an employee as employee. The time at which a shojikeeper (who may or may not employ anybody) may open and close his shop is not a “ matter ” which belongs to or is within the sphere of the relation of that shopkeeper as employer with any person as employee. Nor is it, in our opinion, a matter affecting work done or to be done within the meaning of par. (a) of the definition. Trading hours of an employer are not the same subject as working hours of an employee, and a prescription of trading hours as distinct from working hours does not “ affect or relate to work done or to be done.” Provisions with respect to trading hours may affect the turnover of shop­ keepers who employ persons and so indirectly affect their ability to pay award rates, and this state of affairs may in turn affect the relations of those shopkeepers and their employees. But this is the most that can be said, and it is obviously not enough. It showa only the possibility of an indirect, consequential and remote effect upon the relations of the last-mentio:ied persons. All kinds of matters, e.g. supply and prices of raw material, the state of the money market, may affect the capacity of employers to pay wages at a certain standard. But these are not industrial matters within the definition contained in s. 4 of the Act. What O’Connor J. said in Clancy v. Butchers’ Shop Employees Union (1) is as true of the Commonwealth Act here in question as it was of the New South Wales Act there under consideration. His Honour said : “ If once we begin to introduce and include in its scope ” (i.e. the scope of the Act) “ matters indirectly affecting work in the industry, it becomes very difficult to draw any line so as to prevent the power of the Arbitration Court from being extended to the regulation and control of businesses and industries in every part.”

(1) (1904) 1 C.L.R., at p. 207.