R v Portus; Ex parte

[1969] HCA 15

HIGH COURT OF AUSTRALIA

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

REG. v. PORTUS; Ex parte THIESS BROS. PTY. LTD.

(1969) 121 CLR 406

22 April 1969

Conciliation and Arbitration (Cth)

Conciliation and Arbitration (Cth)—Industrial dispute—Commonwealth Conciliation and Arbitration Commission—Award—Dispute as to application and meaning—Whether subject-matter of industrial dispute—Clause in award prescribing maximum deduction for accommodation provided for employees—Accommodation provided in premises leased from employer at cost greater than maximum amount—Claim that accommodation provided in fact by employer—Conciliation and Arbitration Act 1904-1966 (Cth), ss. 4 (1)*, 23**, 32***.

Decisions

April 22.
The following judgments were delivered:-
BARWICK C.J. This application to make the order nisi for prohibition absolute ought, in my opinion, to be granted. The facts of the matter are simple : an award permits an employer who provides accommodation for his employees to deduct no more than a stated sum per week in respect of such accommodation from the wages payable to the accommodated employees. (at p408)

2. The applicant did not itself provide any such accommodation but two other persons provided accommodation at a hostel, charging persons including employees of the applicant who sought and received such accommodation, a sum in excess of that which an employer bound by the award might deduct for accommodation provided by him. (at p408)

3. Certain contractual arrangements existed between the applicant and these persons. (at p408)

4. The respondent union claimed that the applicant was itself providing the accommodation for its employees through its agents. It filed a notice under s. 28 of the Commonwealth Conciliation and Arbitration Act 1904-1966, made applicable with certain variations to the Northern Territory by the Northern Territory Administration Act 1910-1962, s. 6. A result of such variations is that an industrial dispute in relation to the Northern Territory need not extend beyond the limits of the Territory. (at p408)

5. The dispute which the notice claimed to be likely to arise was as to whether or not the applicant was conforming to the award, it being suggested either that in fact the applicant was providing accommodation and charging therefor amounts in excess of the sum fixed by the award or that in allowing the persons actually providing the accommodation to charge more than that amount, the applicant was in breach of the award properly construed. (at p408)

6. It was, in my opinion, abundantly clear on the face of the notice given by the respondent union that the dispute to which it referred was an existing dispute as to the meaning and application of the award and that what the union sought to do was to obtain an interpretation of the award and to enforce it in the sense in which the union thought it ought to be construed. It has been suggested that the notice was of a dispute likely yet to occur, the terms of the award and the applicant's conduct merely providing the reasons for that impending dispute ; but in my opinion the notice is clearly incapable of any such meaning. (at p409)

7. It was therefore plain that there was no industrial dispute notifie d in respect of which the Commission could take jurisdiction. This Court has clearly laid down the distinction between a dispute which may be settled by award and the enforcement of an award whether or not the interpretation of the award is involved ; but, of course, a difference as to the construction of an award will not itself give rise to an industrial dispute in the relevant sense. Such a difference cannot be settled by arbitral award, but only by the exercise of judicial power. (at p409)

8. But the respondent Commissioner purported to exercise powers of delegation under ss. 43 and 44 to a local industrial board in respect of the matter notified. I pass by the seeming incongruity of contemporaneous delegation to the same person under both ss. 43 and 44 and also the apparently defective form of the delegation in fact made on 10th December by the respondent Commissioner. (at p409)

9. The local industrial board, after hearing evidence, reported the contentions of the parties, the facts as it found them and concluded that it had no authority to deal with the matter. But the Commissioner was undeterred by the terms of the report. He proceeded to find that the appellant was to be treated as the provider of the accommodation to its employees and to hold that the charges made by the persons to whom payment for the accommodation had been made were excessive as beyond the sums deductible under the award. (at p409)

10. No formal order or award was drawn up. If it had been, the fact that the Commissioner was attempting to interpret and to enforce the award must have become even more apparent. But the Commissioner's decision was itself, however, and, I think, intended to be, in the nature of a declaration of legal right and clearly an attempted assumption of judicial power. (at p409)

11. In my opinion, it clearly appears from the notice given by the respondent union, from the evidence given before the local industrial board, particularly from the union advocate's statement of his case, from the statement of the contention of the parties in the chairman's report, and indeed from the very terms of the Commissioner's decision, that there was in this case no industrial dispute within the meaning of the relevant statutory provisions and that from first to last the attempt of the respondent union was to enforce the provisions of the existing award which according to the union's interpretation of it, had been breached by the applicant. (at p409)

12. Remedies are provided by the legislation for such enforcement, but these are to be sought and obtained from the Industrial Court. They are not within the competence of the Arbitration Commissioner. (at p410)

13. It was suggested in argument that the Commissioner in giving his decision was in reality varying the award so as to place upon the applicant the obligation to pay the difference between the sum in fact charged for accommodation and the amounts permitted to be deducted under the award. I can see no justification whatever for such a suggestion. The terms of the decision, apart from all else, deny it. (at p410)

14. In my opinion, the order nisi should be made absolute on the ground that no industrial dispute to support the jurisdiction of the respondent Commissioner existed. (at p410)

TAYLOR J. I agree. I have no doubt that the only dispute that had arisen was a dispute concerning the meaning and application of cl. D.23 of the award. As such, that was not an industrial dispute within the meaning of the Conciliation and Arbitration Act. Nor was there anything before Mr. Commissioner Portus to indicate that an industrial dispute in the statutory sense was likely to arise. (at p410)

2. Further, the decision which he pronounced in settlement of the dispute which had arisen clearly constituted an exercise of judicial power and was not made in a settlement of any industrial dispute or to prevent any impending industrial dispute. (at p410)

MENZIES J. It appears to me, from an examination of the notification of dispute, the hearing before the local industrial board and the decision of the Commissioner himself, that the only dispute between the union and the company was whether the company was providing its employees with accommodation, etc. within the meaning of cl. D.23 of the award, so that the maximum deduction from an employee's wages therefor was $9 a week. (at p410)

2. The Commissioner's decision was neither more nor less than a simple affirmative to this question. He said :

"Where a company provides accommodation for its employees the award specifies the deduction may be made from the wages of the employee. On the facts of this case, in my view, the company is still the provider of the accommodation for tis employees, although the lessee exists as an intermediate figure between the company and the employee. Consequently, the charge for the accommodation to the employee should not exceed the amount specified in the award." (at p411)

3. In my opinion, the dispute was not an industrial dispute, within the meaning of a statute, which, it is to be observed, does not confer judicial power upon the Commonwealth Conciliation and Arbitration Commission. The Commissioner's decision was an assumption of judicial power rather than an exercise of arbitral or conciliatory authority. Reg. v. Lydon ; Ex parte Cessnock Collieries Ltd. (1960) 103 CLR 15 , is clearly distinguishable ; there the dispute was not limited to the meaning and application of the award. Accordingly, I agree that prohibition should go. (at p411)

WINDEYER J. I agree. I consider that the Commissioner did not, in the proceedings before him, purport to make a new award or to vary an existing award with a view to preventing or settling an industrial dispute threatened or existing. He was not, I think, invited to do so ; rather it seems to me he was invited to adjudicate upon and did adjudicate upon the meaning and effect of an award already made. In doing so he considered whether or not there had been a breach of one of its provisions. He did so with a view to compelling obedience to it as he interpreted it. Whether that interpretation was right or wrong in relation to the facts is not a matter which we have to consider. In what he did it seems to me he exercised a judicial and not an arbitral function ; and this was not within his province or power. (at p411)

OWEN J. It seems to me that the plain fact of the matter is that the respondent union was claiming that the employer was not complying with cl. D.23 of the award. This emerges from the letter of 10th December 1968, from the union to the Deputy Industrial Registrar, and was confirmed by what was later said by Mr. Carroll, the advocate for the union, before the local industrial board. Mr. Carroll said :

"Our claim is a just one and we say that Thiess Bros. have been overcharging these people $9 per week, and we want the money refunded as from the time they started." (at p411)

2. When the matter was referred back to Mr. Commissioner Portus by the board, he decided that :

"On the facts of this case in my view the company is still the provider of the accommodation for its employees, although the lessee exists as an intermediate figure between the company and the employer. Consequently the charge for the accommodation to the employee should not exceed the amount specified in the award."

This seems to me to have necessarily involved a determination of the construction of the clause in the award and to amount to a declaration that on that construction the employer was in breach of it. (at p412)

3. This, in my opinion, involved the exercise of judicial power and I agree that the order should be made absolute. (at p412)

Orders

Order absolute for prohibition. Respondent union to pay the prosecutor's costs.