R v Commonwealth Conciliation & Arbitration Commission; Ex parte Transport Workers' Union of Australia [1969] HCA 49; (1969) 119 CLR 529 (13 October 1969)

HIGH COURT OF AUSTRALIA

REG. v. COMMONWEALTH CONCILIATION AND ARBITRATION COMMISSION; Ex parte TRANSPORT WORKERS' UNION OF AUSTRALIA [1969] HCA 49; (1969) 119 CLR 529

Conciliation and Arbitration (Cth)

High Court of Australia

Barwick C.J.(1), Kitto(2), Taylor, Menzies(3), Windeyer(4) and Owen(5) JJ. (THE RIGHT HONOURABLE MR. JUSTICE TAYLOR died before judgment was delivered in

CATCHWORDS

Conciliation and Arbitration (Cth) - Industrial dispute - Industrial matter - What constitutes - Demand for demarcation in handling cargoes in container form - Relations of employers and employees - "Demarcation of functions of employees" - Classes of employees - Preference to members of particular organizations - Recommendation of Commission on matter not within its power - Prohibition - Conciliation and Arbitration Act 1904-1968 (Cth), ss. 4 (1)*, 47, 144.

HEARING

Sydney, 1969, May 22, 23, 26, 27.

Melbourne, 1969, October 13. 13:10:1969

PROHIBITION.

DECISION

October 13.

The following written judgments were delivered:-

BARWICK C.J. The prosecutor, The Transport Workers' Union of Australia, an and Arbitration Act 1904-1968 (Cth) (the Act) seeks prohibition against the Commonwealth Conciliation and Arbitration Commission (the Commission) set up under the Act, a Deputy President of the Commission, the respondent employers, namely, Associated Steamships Pty. Limited, Brisbane Wharves and Wool Dumping Pty. Limited, Liner Services Pty. Limited, McLlwraith's Transport Pty. Limited, Seatainer Terminals Limited and Trans-Ocean Containers Pty. Limited, and the respondent unions, namely, The Waterside Workers' Federation of Australia, The Federated Storemen and Packers' Union of Australia, The Federated Engine Drivers and Firemen's Association of Australasia and The Federated Clerks' Union of Australia, which are also organizations of employees registered under the Act, to prevent further proceedings upon an award of the Commission, known as "The Container Depots Demarcation Award, 1969" (the award) made on 3rd March 1969 and varied on 10th March 1969. The award was made in purported settlement of a dispute said to be created by the service by the respondent employers upon the prosecutor and the respondent unions of a log of claims and its non-acceptance by those on whom it was served. The occasion for the service of the log was the expectation by the respondent employers of commencing what in Australia were then new procedures in the handling of goods to the wharf and into and out of ships and from the wharf to distribution points in the course of export and import trade. Terminals are to be set up on wharves where containers holding goods which have been packed therein will be assembled for shipment on, or for removal after discharge from, ships, as the case may be. Suitable gear will be installed at the terminal to handle the containers inboard or outboard, as the case may be, of ships suitably designed for the purpose of carrying containerized cargo, called container ships. The containers are to be moved out of or into depots where goods will have been packed into them or where goods will be unpacked from them. These depots will not be at or necessarily adjacent to wharves, the goods being brought to them or moved out of them in general by land transport. (at p534)

2. According to the log of claims -

"As the introduction of container vessels necessarily involved

new arrangements for the handling of cargoes, the employers

foresaw the likelihood of conflicting claims by different unions

and their members for the right to perform the work required

by the companies and have sought by negotiations through

the A.C.T.U. and directly with the unions involved to achieve

an agreement accepted by all the unions and the companies.

In this they have proved unsuccessful as the unions have not

been able to resolve their conflicting claims." (at p534)

3. Before going further I ought to express my view upon the meaning of the expression as used in the log "conflicting claims by different unions and their members for the right to perform the work". This, as I understand it, is an industrially understood phrase to express the footing on which a demarcation dispute usually emerges. Employees assert their "right" to perform particular operations - the claim being grounded upon the nature of the work to be performed or upon some historical or traditional circumstance. This "right" of the employee is as a rule asserted by the union of which he and his fellow employees in a like case are members. Inevitably, therefore, unions are in their representative capacity involved in demarcation disputes, that is to say, in disputes between the employer and the employee as to which of his employees he shall assign the performance of particular work. Of course, such a dispute may, and frequently does, involve other employees who claim for themselves and their fellows the right to perform the same work. Thus, two or more unions, each claiming the right of its members to do the work in question, are likely to be involved in the demarcation dispute and appear as antagonists in it. An employer may be indifferent to the result of the dispute, being himself willing that any group of employees should do the work ; or, of course, he may have distinct considerations relating to his total industrial operation which require him to assert his own preference in the matter. But neither the inter-union aspects of the demarcation dispute nor the employer's indifference to its result can be allowed to deny the fact that the demarcation dispute is fundamentally a dispute between employer and employee and properly regarded for the purposes of the Constitution and the Act as involving the relationship of employer and employee. When such a dispute is settled, it is the employer who is bound to assign the work as between his employees in the agreed or awarded direction. (at p535)

4. Thus, as I read the log, the employers were apprehensive of demands being made upon them by their employees, through their respective unions, to assign to particular employees the work to be provided by the employers in and about the proposed depots and terminals. In this connexion it is to be remembered that the union can itself be in dispute with the employer or with employers' organizations on such a matter (see Australian Workers' Union v. Pastoralists' Federal Council [1917] HCA 17; (1917) 23 CLR 22 ). Further, the claim to a demarcation of function assumes the antecedent employment : that is to say the resultant award is not in the form of a direction to employ some person or class of persons not already employed. It is a direction to allot certain work to specified employees or classes of employees. (at p535)

5. The award closely follows the terms of the log of claims. It contains the following relevant provisions :

"4. In respect of the following container depots, namely :

Employer Depot

Seatainer Terminals Ltd. Sudholtz Street, West

Melbourne, Victoria.

Liner Services Pty. Ltd. Alexandria, N.S.W.

Seatainer Terminals Ltd. Chullora, N.S.W.

Seatainer Terminals Ltd. Napier Road, North

Fremantle, W.A.

the following demarcation of work shall be observed in the

performance of work by employees of employers parties to

the Award : -

THE FEDERATED STOREMEN & PACKERS' UNION OF AUSTRALIA

AND ITS MEMBERS"

Then follows a list of various descriptions of work.

"TRANSPORT WORKERS' UNION OF AUSTRALIA AND ITS

MEMBERS"

Then follows a description of work in two categories, namely :

(a) driving motor trucks at or to or from a container depot

and to or from a container terminal and

(b) in the designated container depots of Seatainer Terminals

Limited in Victoria and Western Australia the work of

driving forklifts, side loaders and straddle trucks.

"THE FEDERATED ENGINE DRIVERS' AND FIREMEN'S

ASSOCIATION OF AUSTRALASIA AND ITS MEMBERS (at p536)

6. The work of driving an overhead crane in a container depot. FEDERATED CLERKS' UNION OF AUSTRALIA AND ITS MEMBERS (at p536)

7. All work of employees engaged principally in clerical work in or about a container depot and without limiting the generality of the foregoing including . . ." and then follows a description of various forms of clerical work.

"5. Each union party to this Award shall recognize and

accept the right of the employers parties to this Award to

allocate work as between their members and as between the

classes of employees which they represent in accordance with

the foregoing demarcation and shall accept in relation to

employment with the said employers the exclusive right of

each of the other unions to represent and protect the industrial

interest of employees performing the work allocated to the

members of the Union in accordance with such demarcation." (at p536)

8. In addition to the above provisions the log of claims demanded agreement upon a "bans" clause binding all the respondent unions as well as the prosecutor. The award as originally made although otherwise in the terms of the log of claims did not include any "bans" clause. (at p536)

9. However, after the making of the award, the prosecutor organized a stoppage of the transport of containers from the depots to the terminals, whereupon the respondent employers moved the Commission to vary the award by the insertion of a bans clause binding the prosecutor. The Commission by its award of 10th March varied the award and inserted therein a clause in the following terms :

"8. The Transport Workers' Union of Australia shall not

in any way, whether directly or indirectly be a party to or

concerned in any ban, limitation or restriction upon the

performance of any of the work covered by the foregoing

demarcation or any ban limitation or restriction which has

the effect of limiting, delaying, preventing or interfering with

the performance of such work, whether by preventing the

movement or handling of goods to or between ships, terminals

or depots or otherwise, and whether any such ban, limitation

or restriction as aforesaid involves members of the said Union

employed on the work the subject of the foregoing demarcation,

or not. If on any day the Union is directly or indirectly party

to or concerned in any such ban, limitation or restriction, it

shall not, on the next day, continue to be party to or concerned

in such ban, limitation or restriction. On each and every day

on which the Union is party to or concerned in any such ban,

limitation or restriction, it shall take all steps within its power

to bring such ban, limitation or restriction to an end." (at p537)

10. The grounds put forward by the prosecutor for its submission that the award, both as originally made and as varied, is beyond the power of the Commission are:

(1) That the demand of the respondent employers was incapable of giving rise to an industrial dispute within the meaning of the Act in that - (a) it did not relate to the relations of employer and employee; (b) it did not seek a demarcation of functions of employee; (c) it sought a demarcation of the spheres of influence and of "representation" of the prosecutor and the respondent unions as amongst themselves, a matter not within the competence of the Commission; (d) the substance of the log was for a demand for a bans clause to protect the employers' business activities from the consequences of industrial action by members of the union employed by other employers; (e) the award and a recommendation (to which I shall later refer) brought about a scheme of compulsory unionism within the respective areas allocated to unions and their members.

(2) That the bans clause included in the award binding the prosecutor was beyond the powers of the Commission because - (a) it forbids the union from being concerned in any ban or restriction upon work done by persons not members of the union and whose industrial interests are not to be represented by the union; (b) it forbids the union from being concerned in any ban on work (i) done by members of the union, (ii) or done by persons not members of the union and whose interests are not to be represented by the union - (A) who are not employed by any of the employers, (B) and who are not employed on any of the work the subject of the award - if such ban would have the effect of limiting, delaying, preventing or interfering with work the subject of the award by preventing the movement or handling of goods, (1) between ships and terminals, (2) between terminals and depots, (3) or otherwise; (c) the provisions purporting to impose separate daily obligations, on a continuing act or omission by the union, are not justified by the Act. (at p537)

11. Because of the provisions of the Stevedoring Industry Act 1956- 1965 (Cth), the Commission had no jurisdiction by its award in this matter to deal with work to be done in the terminals, and accordingly it made no award in respect of that work. However, it issued what it termed a recommendation proposing a course of action to be followed by the employers and by the unions concerned in relation to work in the terminals. Whilst in a sense the recommendation is complementary to the award, it is not an award or part of an award, nor is it in any sense a binding instrument, however useful and wise it may have been in an industrial sense that it should have been made. Accordingly, that recommendation cannot be the subject of prohibition: nor, in my opinion, does its existence affect any question which arises in this application. (at p538)

12. I turn to consider the attack upon the award in the first place apart from the variation of 10th March 1969 and later with that variation. (at p538)

13. An industrial dispute is exclusively defined by s. 4 of the Act, so far as presently relevant, as a dispute as to industrial matters extending beyond the limits of any one State. "Industrial matters" by definition means -

". . . matters pertaining to the relations of employers and

employees and, without limiting the generality of the foregoing

includes -

(a) all matters or things affecting or relating to work done

or to be done;

(i) the employment of children or young persons, or of any

persons or class of persons;

(n) any question arising between two or more organizations

or within an organization as to the rights, status or

functions of the members of those organizations or of

that organization or otherwise, in relation to the

employment of those members;

(p) any question as to the demarcation of functions of

employees or classes of employees, whether as between

employers and employees or between members of

different organizations." (at p538)

14. I ought at this stage to mention s. 47 of the Act with respect to preference to unionists and the decision of the Court in R. v. Wallis; Ex parte Employers' Association of Wool Selling Brokers (1) with respect to the inability of the Commission to award compulsory unionism. As will appear, some submissions made in this matter turn on that section and that decision. (at p538)

15. The principal argument of the prosecutor is that the award is not in reality an award effecting a demarcation of function as between one workman and another or one class of workmen and another class of workmen but that in truth it effects no more than the delimitation of the areas of influence, or as it was said of "representation", of one registered industrial organization of employees vis-a-vis another or other such organizations. (at p539)

16. It may be granted that a dispute solely between two registered organizations of employees, each of which is able by its constitution to have members who follow the same trade or calling, as to which of them should be entitled to represent and protect the industrial interest of persons following that trade or calling would not be an industrial dispute within the statutory definition. (at p539)

17. On the other hand, it must be conceded, as I have already indicated, that the assignment by an employer of specific work to an employee to be done in his employment is a matter which pertains to the relations of employer and employee and directly relates to work to be done. It must also be conceded that a dispute between employer and employee, or between an employer and a registered organization of employees, or between a registered organization of employers and a registered organization of employees as to which employee or which class of employee shall be assigned particular work in an employment can be an industrial dispute within the meaning and operation of the Act. Such a dispute may exist between an employer or employers or a registered organization of employers on the one hand and more than one registered organization of employees on the other, for example, where the work to be assigned is claimed by more than one of such organizations to be proper to be performed by employees following some particular trade or calling. More than one of such organizations may have members of the one trade or calling; or some one or more may not have such members but be claiming that the work in question is work to be performed by employees following another trade or calling of which class of employee they have members. In my opinion, an award which settles any such dispute by a demarcation of the functions of particular employees or of a class or classes of employees in an employment would clearly be valid whilst it effects its demarcation by reference to a class of employees, or by reference to a trade or calling, or by sex or by age or by some other description. The identification of the employee to do the specified work by any of these descriptions would not be a departure from the demarcation of function which was the substantive subject matter, and constituted the substantial operation, of any such award. That conclusion, in my opinion, would not appear to be disputed by the prosecutor. Nor would the prosecutor seem to dispute, and in my opinion it could not successfully dispute, that the employer or registered organization of employers could initiate such a dispute by a suitable log of claims served upon a registered organization or upon several organizations of employees, with respect to the allocation of work amongst its employees or the employees of its members. Whether an employer or a registered organization of employers could thus create a dispute with respect to such of its employees as were not members of any registered organization need not presently be considered for, in my opinion, the log of claims in this matter properly understood seeks only a demarcation of functions as between such of the employees of the respondents as are members of one or more of the respondent organizations of employees. (at p540)

18. But, if as I think, the prosecutor is bound to concede so much, it none the less asserts as one aspect of its main submissions to the Court that the identification of the employee or class of employees who or which is to be assigned the specified work may not be effected wholly or partially by reference to membership of a registered organization of employees. That objection, on any view, in my opinion, can scarcely be maintained universally without qualification. If the membership of each registered organization were limited to persons following specified trades or callings and no other, i.e., if we were dealing with craft rather than industrial unions, the identification of the employee to perform the work by reference to his membership of such a union where the demarcation was limited to employees who were members of some union could hardly be any different from his identification by reference to his trade or calling. In such a situation each union has been claiming that the work be treated as work properly to be performed by employees following a particular trade or calling and by such claim each is in substance claiming the allocation of the work to employees who are its members. Either description would identify the same person in the employment. The problem arises in this case because no such exclusive eligibility clauses exist in the constitutions of all the respondent unions. (at p540)

19. The question is whether an industrial dispute can arise out of an employer's claim that specified work in his employment should be done by such of his employees, who being members of some registered organization of employees, are members of a specified registered organization of employees. (at p540)

20. In my opinion, the log of claims sought a demarcation of function of such of the employees employed or to be employed by the employers' parties to the log of claims as were members of one or more of the registered organizations of employees upon whom the log was served. It sought no agreement as to the allocation of work amongst other employees. It sought the concurrence of the unions on behalf of their members and on their own behalf to the proposed allocation of work as between such employees. That allocation of work according to membership of an organization contains implicitly a reference to the employees' trade or calling. This, it seems to me, must be so because at least some of the respondent organizations would have members for whom the allotted work would obviously be inappropriate. Thus, for example, a reference to members of the prosecutor in the log and the award is in reality, in my opinion, a reference to transport workers who are members of the prosecutor. (at p541)

21. These are all, in my opinion, valid conclusions on which to base an opinion upon the matter which to my mind should be decisive of this case, namely, does the inclusion in the log and in the award of membership of an organization in the specification of the identity of the employee to whom the work is to be allotted of itself either prevent the dispute being an industrial dispute or invalidate the award? (at p541)

22. After much consideration I am unable to see why the overlapping of membership eligibility as between the registered organizations of employees should prevent the creation of such a demarcation of function dispute as I have already described. A new element undoubtedly intrudes where the membership eligibility has elements common to two or more of such registered organizations. It is no longer sufficient for each organization to claim that the work is properly to be done by employees following some particular trade or calling if employees following that trade or calling may be members of more than one registered organization of employees: in such a case it is necessary, it seems to me, that membership of one organization or another be added as an additional identifying factor in the allocation of work. A demarcation award which merely allotted work according to trade or calling in such a situation would not settle the matter. The existence of industrial rather than craft unions, and of overlapping membership eligibility, not merely makes possible disputation between registered organizations but makes possible disputes between employers and employees or their representative organizations as to the demarcation of function to be effected in the employment at least in part by reference to membership of a registered organization of employees. As I mentioned before, although an indifferent attitude of the employer or of the employers' organization may allow the dispute to appear to be principally a dispute between the contesting unions, that, in my opinion, it is not, either in form or in reality. (at p541)

23. The Act has recognized this practical consequence of the creation of registered organizations with capacity to represent employees following various trades or callings not limited to what I have called exclusive membership eligibility. One of the paragraphs of the definition of industrial matters expressly covers the demarcation of function of employees as between members of different organizations. The relevant paragraph, (p), is expressed somewhat compendiously. It needs, in my opinion, to be expanded in construction. Bearing in mind the opening paragraph of the definition of industrial matters, the paragraph, in my opinion, contemplates that a question as to the demarcation of function of employees may arise simply between the employer and the employee whose functions are to be marked out, that it may arise between the employer and more than one employee or class of employees, and that it may arise between the employer and his employees who are members of different organizations and in respect of such membership. I find no need to call in aid in this connexion any part of par. (a) of the definition which presents its own difficulties. In my opinion, par. (p), as I would interpret it, would in itself be sufficient warrant for holding that a demarcation of function of employees who are members of some registered organization of employees according at least in part to their membership of such an organization may be an industrial matter within the meaning and operation of the Act. Indeed, in my opinion, without the benefit of the particularization of the opening words of the definition of "industrial matters" in s. 4 constituted by the several paragraphs and subject to the effect of s. 47 with which I shall later deal, the identification of which of the employees who happen to be members of some organization of employees should be allotted particular work in the employment of a disputant employer by reference to his or their calling and his or their membership of an organization of employees seems to me to be an industrial matter within that section. The demarcation pertains to the relationship of employer and employee: it does so none the less because membership of an industrial union is included in the description of the employee or employees who are to be selected to do particular work for the employer. Also employees who are members of a particular registered organization of employees, in my opinion, form a class of employees within the meaning and scope of par. (p). Thus for these several reasons, I conclude again, subject to consideration of s. 47, that an industrial dispute can arise between an employer or an employers' organization and a number of employee organizations as to the allocation by the employer of work to be done in his employment by his employees who are members of one or more of those employee organizations according to the industrial occupation of the employee and his membership of a named organization of employees. The subject matter of the log was therefore, in my opinion, capable of being an industrial matter within the meaning of the Act. Was the demand to seek such a demarcation capable of giving rise to an industrial dispute? (at p543)

24. A registered organization, in my opinion, can agree with an employer for the purposes of the Act that specified work be or be not allotted to employees who are its members both as to the work to be performed by its own members and the work to be performed by the members of another organization. Also such an organization can for the same purpose make such an agreement with another organization or organizations. Thus the demand for agreement contained in the log of claims was, in my opinion, capable of acceptance by the unions on whom it was made. I am of opinion, again subject to what I have to say about s. 47, that by reason of the service of the respondent employers' log of claims and the non-compliance with its demand by the prosecutor and respondent unions there did exist in this case an industrial dispute between the respondent employers on the one hand and the prosecutor and the respondent unions on the other. (at p543)

25. However, the log of claims included cl. 5, which I have already quoted in full. Standing alone, in my opinion, that clause does not represent a demand in relation to an industrial matter within the meaning of the Act. But it does not stand alone. It is ancillary to the demand for an agreement as to the demarcation of function of certain employees in the employers' employment. It is in form a clause which presupposes the demarcation to have been made at least in part according to membership of an organization of employees and that there is overlapping in the membership eligibility of two or more of such organizations. The clause, in my opinion, is in its nature, protective of such a demarcation. A registered organization for the purposes of the Act may agree not to make or to press claims on behalf of its members, though as was rightly pointed out by counsel for the prosecutor, it may not deny membership to a person falling within its membership eligibility clause. The presence of s. 144 in the Act as it presently stands was much emphasized by counsel for the prosecutor, who sought to build upon it an argument that because a worker now had a right of admission to membership of an appropriate registered organization of employees, such a registered organization could not abandon or be required to abandon its "right", as it was called, of "representation" of potential as well as of actual members. But I have been unable to appreciate the relevance of s. 144 to the resolution of the present problem. Whilst a person may be able to insist on membership, I do not understand his right to membership of an organization to involve a denial of the power of the organization to exercise, or not to exercise, as the case may be, the powers both express and implied, which it derives from its constitution and the fact of its incorporation under and for the purposes of the Act. It seems to me that the ability of the organization to agree to vacate some field which according to its constitution it might occupy remains unimpaired. Nor do I find it the least incongruous that if a demarcation of function according to membership of an organization is agreed to by two or more organizations with an employer, that each organization bound by the agreement should also agree to respect the demarcation and pro tanto to vacate the field of industrial activity in which it might otherwise prosecute the interests of its members. Consequently, I do not regard the presence in the log of the clause in the terms of cl. 5 of the award as violating the conclusion otherwise drawn as to the industrial nature of the demands of the log. Nor, in my opinion, does the presence of a clause in the award (cl. 5) in the terms of the log make the award allocating the functions of employees of the respondent employers who are members of a registered organization an inappropriate or inadmissible settlement of the industrial dispute. (at p544)

26. No doubt the making of this award had a considerable effect upon the area of industrial representation and influence of the prosecutor and at least some of the respondent unions. It is because of this that the prosecutor submits that the log merely sought, and that the award merely effected, a delimitation of the several areas of influence and representation of the prosecutor and of the respondent unions. (at p544)

27. This submission it seems to me confuses the substance of the demand and of the award with the consequences which may flow from such an award and its observance, particularly in so far as a clause such as cl. 5 is contained in the award. It is quite true that the effect of the demarcation of function of the respondent employers' employees who are members of an organization by reference to membership of the prosecutor or of one of the respondent organizations together with the clause as to the observance of the demarcation by the prosecutor and the respondent unions is to bring about a limitation of the sphere or area of influence or representation of those respective organizations. But, that is not, in my opinion, the substance of the award. In my opinion, the demarcation of function is the substance. (at p545)

28. It should be observed that in any case in which there is a demarcation of function by agreement or by award there may be a substantial consequential limitation of the area of employment over which an organization of employees may operate. Where there are no overlapping membership eligibility provisions a demarcation of function merely by trade or calling carries the consequence that in relation to the particular work or function one industrial organization has or perhaps more than one have the area of their operations reduced. An award that specified work should be done in some employment by persons following a particular trade or calling must reduce the areas of influence or representation of an organization whose membership eligibility does not embrace such trade or calling, though it had theretofore claimed, and perhaps successfully, that the specified work was that of employees following another trade or calling which did fall within its membership eligibility. Thus, whilst the consequential effect of the award in the submitted respect may be granted, it is, in my opinion, but a consequence and not of the substance of the log of claims or of the award. It cannot be doubted, in my opinion, that the employers desired a demarcation of function, so that work would be allocated to be performed in their employment by nominated classes of employees. No doubt they also desired that the organizations concerned should respect that allocation of work. But the primary and the substantial matter was the allocation of work amongst classes of employees. (at p545)

29. It was then submitted that the award amounted to an award of compulsory unionism. The argument in this respect was twofold. First, it was said that this log of claims could not give rise to an industrial dispute because its real claim was for compulsory unionism and, second, it was said that the award was invalid in so far as in settling the dispute, if it existed, it contravened s. 47 as going beyond preference and in substance awarding exclusion of non-unionists. But in reality it seems to me those were only different aspects of the same submission. (at p545)

30. As I read the log of claims it does not seek an award binding the employers as to all their employees but only as to such of them as are members of a union. If compulsory unionism involves the exclusion from employment of persons not members of some union neither the log nor the award in this case comprehended compulsory unionism, for neither sought nor ordered the exclusion of non-unionists: neither dealt with them. (at p546)

31. The award does not direct or require the respondents or any of them to employ or not to employ any person. The terms of the award in R. v. Wallis (1) are illustrative of what is involved in an award of "compulsory unionism". To be an award of preferential employment, it is essential that the employer be bound to receive or not to receive into or retain in his employment persons selected for their membership of a registered organization. Nothing of that kind appears in this award. (at p546)

32. As I have already indicated, the log of claims, in my opinion, cannot be read as being or including a demand that only members of one of the named organizations shall be employed to do specified work. So to read it, in my opinion, inverts it altogether. For this short reason I would reject the applicant's submission. However, it is as well that I indicate my view as to s. 47 and the authority relied upon in support of the applicant's submission. (at p546)

33. The Court in R. v. Wallis [1949] HCA 30; (1949) 78 CLR 529 dealt exclusively with preference in employment. It reached its conclusion by regarding the provisions of s. 47 as being the exclusive source of any power to award preference in employment and as indicative of an intention in the Parliament not to include compulsory unionism as included in the definition of industrial matters, or to give power to award it by such general provisions as s. 33 and s. 41 of the Act. The Court held that the exclusion from employment of persons not members of any or of any specified organization of employees was not an industrial matter and that a claim to such exclusion could not give rise to an industrial dispute. The Court found in the terms of s. 47 warrant for a narrow construction of par. (j) of the definition of "industrial matters". In substance the Court founded its entire conclusion on the provisions of s. 47, and the absence of any counteracting provisions of s. 4 as the Court construed that section. (at p546)

34. However, in the present case, par. (p) is, in my opinion, both specific and appropriate to the demarcation of function of persons already employed on the basis of their membership of one or other of different organizations. Section 47, in my opinion, would not warrant any limitation upon the construction which would otherwise be given to that paragraph of the definition of "industrial matters". Therefore, in my opinion, the presence of s. 47 in the Act does not require any alteration in the view I have otherwise formed and earlier expressed in these reasons that the demand by the employers in this case was a demand as to an industrial matter as defined. (at p547)

35. However, s. 47 is not limited to the awarding of preference in employment; it extends to preference in any respect. But it may well refer to the preference of a unionist over a non-unionist, although verbally the section could be applied to the giving of preference of one unionist over another. That form of preference, however, if authorized by the section does not involve an exclusion of the kind which was found to be fatal in Wallis' Case [1949] HCA 30; (1949) 78 CLR 529 . (at p547)

36. If it refers only to preference of unionist over non-unionist, it has no significance in the present case. If it includes preference of one unionist over another, it supports the award. (at p547)

37. Thus, it seems to me, however regarded, s. 47 neither prevents the log in this case giving rise to an industrial dispute nor does it prevent the dispute being settled in the manner in which it was settled by the award. (at p547)

38. I turn now to the other substantial submission of the prosecutor, a submission which concerns the insertion of the bans clause binding the prosecutor by variation of the award. At the threshold of the consideration of the validity of this clause of the varied award, it is important, it seems to me, to recall the nature both of the dispute and of the settlement of it as expressed in the award. Although not, as it seems to me, a matter going to the validity of the award, it can readily be conceded that the dispute and its settlement exhibit features of novelty. A demarcation as between members of registered organizations is usually effected by the use of other provisions of the Act, namely, s. 41 (1) (d) in combination with s. 39 in circumstances where the registered organizations of employees have the initiative. But nothing in the Act suggests to my mind that these sections provide the exclusive means of obtaining a demarcation of function. I see no reason why an employer should not have the initiative in obtaining a demarcation award in anticipation of an industrial stoppage, or indeed in anticipation of inter-union disputation as to a demarcation of function. The convenience of such a course being available and the contribution it may make to industrial peace are obvious. Nothing in the Act forbids it: and nothing, in my opinion, in the concept of an industrial dispute denies the possibility of it. (at p547)

39. Further, as the dispute is between the employer and several unions as to a demarcation of employee functions by the employee being identified at least in part by reference to his membership of an organization, the demarcation may well need protection by a clause such as cl. 5. Thus the award in this case protects the demarcation it effects by requiring each organization to respect the demarcation and its consequences upon the representative areas of each organization. (at p548)

40. With that background I turn to the terms of the bans clause in question. The validity of a bans clause as a means of protecting an award is, in general, established by the decisions of this Court: see R. v. Metal Trades Employers' Association; Ex parte Amalgamated Engineering Union, Australian Section [1951] HCA 3; (1951) 82 CLR 208 ; Reg. v. Spicer; Ex parte Seamen's Union of Australia [1957] HCA 16; (1957) 96 CLR 341 : see also Reg. v. Galvin; Ex parte Amalgamated Engineering Union, Australian Section [1952] HCA 29; (1952) 86 CLR 34 . But the clauses in these cases were limited to bans etc. upon the performance of work which could be performed by the members of the organization bound by the clause. Here the clause forbids the prosecutor from being involved directly or indirectly in any ban etc. upon the performance of any work covered by the demarcation, i.e., whether or not the work is capable of being performed conformably to the award by the members of the prosecutor. But as I have indicated, the maintenance of the allocation of work requires the abstention by organizations whose members are not enabled to do particular work from interfering in the performance of that work by others to whom the performance of the work is to be allocated by the demarcation. Thus, in my opinion, the bans clause does not travel beyond what may be considered necessary to protect the settlement effected by the award when it requires the prosecutor to abstain from being concerned in any ban etc. on work to be performed by employees who are members of another organization. If in its nature a bans clause is no more than protection of the settlement of the dispute which has been effected, the extent to which the arbitral tribunal goes in pursuing that protection is a matter for that tribunal up to the point at which the provisions of the clause cease to be no more than protective. That point is exceeded if the particular provisions are such that they cannot reasonably be thought to be so protective of the settlement. (at p548)

41. The final provisions of the bans clause are attacked as transcending the limits to which the Commission can go in protecting a settlement, even such a settlement as is involved in the award. The provisions are twofold: first, the prosecutor is required as a separate obligation to desist from being a party to or concerned in a ban etc. on the next day after it has become such a party: secondly, the prosecutor is required when or so long as it is party to a ban etc. to take all steps within its power to bring such ban to an end. It is said that being a party to or concerned in a ban etc. is not, according to the view accepted in the decisions of the Industrial Court, a continuing breach of the award which attracts more than a single pecuniary penalty. It is then said that the Commission has no authority to convert a breach of the principal provisions of the bans clause into a continuing offence attracting daily penalties by such a clause as the first of the above provisions: and that the real effect of this bans clause is to do no more or no less than that. But I can discover no intrinsic reason why a bans clause should not impose more than one obligation upon the organization bound by it. To impose a second obligation a breach of which may attract another penalty is not, in my opinion, to increase or alter the penalty imposed upon breach of an earlier obligation imposed by the same bans clause. Thus the imposition of more than one obligation by the clause does not of itself, in my opinion, invalidate it. It may well be thought an inadequate protection of the settlement merely to forbid the organization to be a party to or concerned in any ban with no direct provision of the award by means of which that ban may be brought to a speedy end. In my opinion, to require an organization which has become a party to or concerned in a ban to desist from a continuation of such a ban etc. is reasonably capable of being regarded as a necessary or a desirable means of protecting the substance of the award. Further, I do not think that the imposition of positive obligations on the organization as a means of ensuring such protection to be beyond the power of the Commission. (at p549)

42. In the present case, the obligation to take all steps within the power of the organization to bring the ban to an end extends to the case of a ban etc. imposed by another organization and not directly involving the members of the prosecutor. But, in my opinion, this extension does not bring the clause or any part of it into invalidity. It may be that, in the case supposed, the prosecutor has no steps within its power which it can take; and it may be that situations may arise where difficult questions of fact have to be decided in determining whether or not the obligation has been breached. These, however, are not matters affecting the validity of the clause or of the particular aspect of it now under consideration. (at p549)

43. Although far reaching in its operation and effect and perhaps novel, the clause as a whole is, in my opinion, valid as a permissible means of safeguarding the particular settlement of the dispute, both the dispute and the settlement having the peculiar features to which I have drawn attention. (at p550)

44. In my opinion, all the prosecutor's submissions fail. The order nisi for prohibition should be discharged. (at p550)

KITTO J. As Dixon J. said in R. v. Findlay; Ex parte Victorian Chamber of Manufactures [1950] HCA 53; (1950) 81 CLR 537, at p 550 , the judgments in R. v. Wallis [1949] HCA 30; (1949) 78 CLR 529 show the opinion of the Court to have been that a claim for the exclusion of all but members of a particular union from employment in an industry is not a demand in respect of an industrial matter within the definition contained in s. 4 of the Conciliation and Arbitration Act 1904-1968 (Cth), the reason being that it pertains, not to the relation of employers and employees, but to the relation of employees to the union, and is not covered by any of the lettered paragraphs of s. 4. (at p550)

2. The employers' log in the present case recited that the five unions to which it was addressed were making conflicting claims for the right of their respective members to perform various types of work in connexion with the handling of cargoes shipped in container form. The demand primarily made by the log was that the unions should agree jointly and severally that in the performance of work by employees of the employers a particular "demarcation", as it was called, should be observed. The "demarcation" consisted in an allocation of work of various descriptions amongst the unions and their respective members. The plain meaning of the demand was that each union should agree with each of the others, as well as with the employers, that for work falling within any one of the descriptions the employers should engage members of the union to which work of that description was allotted in the log to the exclusion of the respective members of the other unions. The demand did not extend to the exclusion of non-unionists generally, as in R. v. Wallis (2); but in principle that case appears to me to be in point, for the demand in the present case pertained, not to the relations of employers and employees, but to the relations of employees being members of any one of the unions to each of the other unions. It was first a demand that if a particular employee, being a member of union X but not of union Y, should wish to be employed on work of a kind allotted to the members of union Y, he should be excluded because of his non-membership of union Y; and it was secondly a demand that if another employee, being a member of union Y, should be employed on that work, union X and its members should refrain from objecting to his being so employed. The general words of the definition of "industrial matter" were therefore not satisfied, and the judgments in R. v. Wallis [1949] HCA 30; (1949) 78 CLR 529 show further that none of the lettered paragraphs of the definition applied. In the argument great reliance was placed upon par. (p) which covers any question as to the demarcation of functions of employees or classes of employees; but in my opinion, for the reasons to be stated by my brother Owen, the word "demarcation" was misused in the log if it was intended to bring the matter within par. (p), and the question which was the subject of the demand was not within that paragraph. (at p551)

3. The log contained five ancillary demands, but their sole concern was to ensure that each union should refrain from objecting, or taking steps to enforce any objection, to the employers' giving effect to the allocations and consequent exclusions contemplated by the primary claim. None of them, therefore, was a demand upon an "industrial matter". (at p551)

4. I should add that I agree with the view that by implication from s. 47 (formerly s. 56) such a subject matter as that of the log in this case would have to be held to lie outside the jurisdiction of the Commission, even if it were to be considered an "industrial matter". (at p551)

5. I would make absolute the order nisi for prohibition as regards the awards of 3rd March 1969 and 10th March 1969. The recommendation referred to in the order nisi neither has nor purports to have any legal operation or effect and is therefore not subject to prohibition. (at p551)

MENZIES J. Were it not for the effect which two decisions of this Court, viz. R. v. Wallis [1949] HCA 30; (1949) 78 CLR 529 ; R. v. Findlay; Ex parte Victorian Chamber of Manufactures [1950] HCA 53; (1950) 81 CLR 537 , have attributed to the provision which is now s. 47 of the Conciliation and Arbitration Act 1904-1968 (Cth), I would have been prepared to hold that a dispute whether only members of a particular union should be employed to do certain work would be an industrial dispute simply because it pertains to the relations of employers and employees. My reading of the two cases already cited is, however, that s. 47, which provides for the making of awards giving preference in employment, prevents a dispute about a union's monopoly of employment from being regarded as a dispute about an industrial matter in the sense that without falling within the particular matter specified in the definition of an industrial matter in s. 4 (1) of the Act it simply pertains to the relationship of employers and employees. Thus in the earlier case, when what is now s. 47 was s. 56 of the Act, Latham C.J. said:

"The provisions of s. 56 do not authorize more than

preference to unionists. They do not enable a commissioner

to declare non-unionists black so that they cannot get work

in the industry to which they belong. If there is, however,

power to exclude non-unionists, the exclusion may be partial

or complete. Partial exclusion is preference to others. There

would be no rational reason for parliament carefully

prescribing

conditions in relation to preference, i.e., partial

exclusion, if it were intended that there should be an unlimited

power to order complete exclusion in any case. Accordingly,

in my opinion, the definition of 'industrial matters' should

not be so interpreted and applied as to authorize the making

of an award for complete exclusion"

(1949) 78 CLR, at p 544.

In the same sense McTiernan J. said:

"Of course, the question of preference to unionists or

discrimination against them are matters pertaining to the

relations of employers and employees and these matters are

included in the list of industrial matters specified in s. 4:

see cl. (j). An award granting preference to unionists or

preventing discrimination would be made in respect of an

industrial matter. But an award purporting merely to impose

compulsory membership of the union on employees would not

be an award in respect of any industrial matter"

(1949) 78 CLR, at p 555.

In the latter case Dixon J., as he then was, said that a demand for the exclusion of all but members of a union from employment in an industry

". . . is not in respect of an 'industrial matter' within

the definition contained in s. 4 of the Commonwealth Conciliation

and Arbitration Act 1904-1949. To fall within that definition

the matter must pertain to the relations of employers and

employees or else fall within one or other of the paragraphs

lettered a to q which follow the general words of the definition.

As I read the judgments in R. v. Wallis

[1949] HCA 30; (1949) 78 CLR 529

, the Court was of

opinion that such a claim pertained, not to the relation of

employers and employees, but to the relation of employees

to the union, and that it was not covered by the lettered

paragraphs"

(1950) 81 CLR, at p 550. (at p552)

2. The disputes with which we are here concerned are, in a sense, disputes between employers and unions and between unions about the unionists who should have a monopoly of employment for particular work. Therefore the decisions to which I have referred constrain me to the conclusion that these disputes cannot be regarded as disputes about an industrial matter simply because, in the absence of a provision such as s. 47, the disputes would be regarded as pertaining to the relations of employers and employees. However this conclusion does not, of itself, settle the problem here. It is necessary to decide whether the disputes with which we are concerned do fall within one of the lettered paragraphs in s. 4 (1). If it does it is an industrial dispute, notwithstanding s. 47, and that this would be so is recognized in the two cases to which I have already referred. This brings me to (p) of the definition of industrial matters which is the only lettered paragraph which could comprehend the disputes in question. Paragraph (p) is as follows:

"Any question as to the demarcation of functions of

employees or classes of employees, whether as between

employers and employees or between members of different

organizations."

Prima facie this paragraph would cover a question as to the demarcation of functions of members of different organizations. I see no reason why unionists and non-unionists should not be regarded as classes of employees and, in the same way, I see no reason why employees should not fall into classes as members of one union or another. It would be an entirely appropriate use of language for an employer to say that he had two classes of employees (1) members of union A whose employment is governed by award X and (2) members of union B whose employment is governed by award Y. It has been argued, however, that implicit in par. (p) is the limitation that the classes must be based upon some difference in occupation or trade. Why, however, could the demarcation not be upon the basis of sex, age, the presence or absence of infirmity, or the length of service, or indeed, in accordance with any other criterion that is fairly relevant to dividing employees into different classes? I can find nothing in the language of (p) or in any of the decisions of this Court that confines its meaning in any artificial way. Certainly the word "functions" does not do so because to demark the functions of employees or classes of employees means nothing more than to divide up the work to be done by employees among specified employees or classes of employees. Surely the question whether women employees should be employed instead of men to do certain work is a question as to the demarcation of function between classes of employees, notwithstanding that the women and the men concerned all follow the same calling and all have the same technical qualifications. I reject, therefore, the limitation that the prosecutor seeks to engraft upon par. (p) to confine it to demarcation upon the basis of calling or qualification. (at p553)

3. Rejecting this submission and reading par. (p) as it stands, it is my opinion that the matter in dispute here is a matter within the paragraph. (at p554)

4. This conclusion makes it necessary to consider whether s. 47 of the Act impliedly prohibits the making of the award in fact made. (at p554)

5. It appears to me that if a matter is an industrial matter because it falls within one of the lettered paragraphs in s. 4 (1), it can only be in a clear case that some other provision of the Act should be regarded as forbidding the settlement of a dispute as to that matter in accordance with the provisions of s. 23 of the Act. Of course, if the dispute is one as to preference the provisions of s. 47 apply, notwithstanding a preference based upon membership of an organization is specifically referred to in s. 4 (1) (j), and if the disputes here are as to preference or a matter ejusdem generis s. 47 can operate as a limitation upon the power to settle them. This follows, I think, from R. v. Wallis [1949] HCA 30; (1949) 78 CLR 529 . See particularly Dixon J. (1949) 78 CLR, at p 553 . I find no difficulty, however, in saying that the disputes here are not disputes about preference. I have found it more difficult, however, to determine whether the demarcation of function of members of two unions should be regarded as ejusdem generis with the preference dealt with by par. (j) and s. 47, but I have reached the conclusion that it should not. A dispute about compulsory unionism has been regarded as ejusdem generis with a dispute as to the preference to which s. 47 relates, but to demark the functions of employees is something separate and distinct from giving preference to an organization or member of an organization even if the demarcation proceeds by reference to membership of organizations. I regard par. (j) and (p) as dealing with different matters. Furthermore, I regard it as of importance that in the two cases already referred to, the Court found it necessary to negative that the matters in dispute were within any of the lettered paragraphs. This, no doubt, was because of the difficulty of confining a particular paragraph and the statutory obligation to settle a dispute about a matter covered thereby merely by implication from the then s. 56. If, for instance, the word "non-employment" in par. (j) had been understood to cover a claim that an employer should be debarred from employing particular employees there would have been no reason to deny to the Commission the power to settle such a dispute claimed by virtue of the special provision relating simply to preference. The problem which the Court faces here is different from that faced in the earlier cases and these decisions do not compel the conclusion that s. 47 forbids, by implication, the making of the award now in question. (at p555)

6. It is my conclusion that an award may be made settling a dispute as to a matter within par. (p), notwithstanding s. 47. (at p555)

7. Turning now to s. 5 of the award, which was the subject of special attack, I would say that I regard this clause as providing no more than machinery to enable effect to be given to a valid award providing for demarcation of functions on the basis of membership of particular unions. Clause 5 does not stand by itself and I do not accept the prosecution's contention that cl. 5 is the substance of what the employers demand. I reject the submission that the real question which arose between the parties concerned is one "as to the demarcation between organizations of their industrial right and interest to represent their members and employees eligible to be members". In its context, therefore, I find no objection to cl. 5 of the award. (at p555)

8. It is still necessary to consider the attack which was made upon the bans clause which does appear to go beyond anything previously upheld as a provision to make an award effective. It is a very far reaching clause. It seems to me, however, that a wide discretion must be accorded to the Commission in deciding what the circumstances of a particular case require to protect an award and, for reasons similar to those given by the Chief Justice, I have come to the conclusion that the bans clause here in question cannot be said to exceed the limits of what is permissible. (at p555)

9. I agree with the other members of the Court that the making of the recommendation that was made created no rights or obligations and I have satisfied myself that the departure from the recommendation would not, according to the terms of the award, bring the bans clause into operation. In these circumstances prohibition should not go in relation to the recommendation, and the making of the recommendation does not affect the validity of the bans clause. (at p555)

10. Accordingly, in my opinion, the order nisi should be discharged. (at p555)

WINDEYER J. The question at issue before the Conciliation and Arbitration Commission was, I consider, an "industrial matter" within the definition of that term in the Conciliation and Arbitration Act 1904-1968 (Cth). The Commission exercises jurisdiction in what Fullagar J. once described as a system of a highly artificial nature. The artificiality is the product of factors he mentioned, and an indirect outcome of the terms of s. 51 (xxxv.) of the Constitution: see Reg. v. Graziers' Association of New South Wales; Ex parte Australian Workers' Union [1956] HCA 31; (1956) 96 CLR 317, at p 333 . But, although its field is hedged round by restrictions and artificialities, which in places resemble fictions, the jurisdiction which the Commonwealth Parliament has committed to the Commission is conferred in ample terms. In the exercise of that jurisdiction the Commission has an important place in the government of Australia, for it has a great duty in the regulation of Australian industrial conditions. I do not question that where any provision of the Act has been the subject of express and specific interpretation by this Court, we ought to adhere to that interpretation in cases which arise. But, except so far as may be necessary to keep the provisions of the Act within the scope of the constitutional power, I think that the jurisdiction of the Commission should be understood to be as wide as the words of the Act allow when they are read against a background of industrial conditions today. We ought not to be astute to interpret them narrowly. I say that merely to explain the way in which I approach the question in this case. (at p556)

2. As workers in industry are now organized, disputes as to demarcation of functions in relation to a particular task do not, as I understand the matter, depend simply upon the craft in which a particular man is a journeyman. They may arise from claims of rival organizations that their members shall be employed upon particular tasks in particular places. These dissensions can obviously directly affect employers; for they must know with what union or unions they are to deal as representing the workers they employ. Demarcation questions in that sense are thus, I think, "matters pertaining to the relations of employers and employees" within the meaning of that expression in the statutory definition of "industrial matters". I realize that this reading of the statutory definition of industrial matter cannot be readily accommodated with the provisions of s. 47 in view of what the Court said in R. v. Wallis; Ex parte H. V. McKay Massey Harris Pty. Ltd. [1949] HCA 30; (1949) 78 CLR 529 . Nevertheless I am not convinced that s. 47 precluded the Commission making the award now in question. The award does not give members of a union a monopoly of employment in an industry to the exclusion of non-unionists: rather, it distributes different phases and parts of the work in an industry among members of different unions. However, even if I be wrong in thinking that the question was within the jurisdiction of the Commission because it was within the initial words of the statutory description an "industrial matter", it was I think an industrial matter because within the particular description in par. (p) of the definition. It was a question "as to the demarcation of functions of employees or classes of employees, whether as between employers and employees, or between members of different organizations". As I read the Act, disputes about such demarcations are industrial disputes. And, assuming that the necessary inter-State element be present, a demarcation disagreement between unions, in which employers are involved, can I think amount to an industrial dispute, actual or threatened, within the constitutional description. Indeed in conditions in industry prevailing today, and having regard to the obvious importance with which the parties before us regard the present question, I think I would be shutting my eyes to reality to hold otherwise. I appreciate the force of dicta in earlier judgments of this Court which were relied upon. But these earlier judgments do not, I think, compel me to a conclusion which I think would not in this case accord with the intention of Parliament. The argument of counsel for the prosecutor certainly did not persuade me that there was no industrial dispute here. Rather the reverse: its comprehensiveness, resolution and insistence convinced me that there was here a real dispute as to demarcation of functions between classes of employees, being members of different organizations, and as between the organizations and an employer. (at p557)

3. In my opinion the order nisi should be discharged. (at p557)

OWEN J. This judgment was drafted by the late Mr. Justice Taylor. I had discussed the case with him on many occasions and agreed with his draft. I now adopt it as my judgment. (at p557)

2. With the advent of what has been referred to as container shipping questions have arisen as to how the work of unloading and loading container vessels and other work in and about container terminals and depots shall be shared among the members of various unions. The unions concerned are The Waterside Workers' Federation of Australia, The Federated Storemen and Packers' Union of Australia, The Transport Workers' Union of Australia, The Federated Engine Drivers' and Firemen's Association of Australasia and The Federated Clerks' Union of Australia. The situation that has arisen led four companies, as employers in the industry, to serve a log of claims upon the unions which recited that they had

". . . for a considerable time, been endeavouring to make

arrangements with the unions to ensure that the handling

of cargoes shipped in container form will be carried out on

the basis of amicable arrangements between the companies

and the unions and without the work being disrupted by

disputes as to the demarcation of functions of different classes

of employees, or as to the rights, status and functions of the

members of the unions in relation to employment with the

companies".

It further recited that as the introduction of container vessels necessarily involved new arrangements for the handling of cargoes, the companies had foreseen the likelihood of conflicting claims by different unions and their members for the right to perform the work required by the companies and had sought by negotiation "to achieve an agreement accepted by all the unions and the companies" but in this they had been unsuccessful "as the unions have not been able to resolve their conflicting claims". Therefore, they demanded by the log of claims that the unions in question should agree that in the performance of work by employees of the companies specified "demarcations" should be observed. It is unnecessary for the moment to set out details of the so-called "demarcations" of functions which the log demanded should be observed for, as I understand the argument, there is no question that the award of the Commonwealth Conciliation and Arbitration Commission, made on 3rd March 1969, was within the ambit of the dispute occasioned by the rejection of the log; what is said initially is that it is impossible to characterize that dispute as an "industrial dispute" as that expression is defined for the purposes of the Conciliation and Arbitration Act 1904-1966 (Cth). (at p558)

3. The award - entitled "The Container Depots Demarcation Award 1969" - was expressed to be binding upon Liner Services Pty. Limited and Seatainer Terminals Limited in respect of their respective depots in Melbourne, Sydney and Fremantle and, with the exception of The Waterside Workers' Federation, upon all the unions mentioned and their officers and members. It then provided that "the following demarcation of work shall be observed in the performance of work by employees of employers parties to the award". Thereafter appear successive clauses allocating to members of different unions the work described in each paragraph. It is unnecessary to set out the award in full but it is to be observed for the purpose of illustration that the work of driving forklifts, side loaders and straddle trucks in all places other than the depots of Seatainer Terminals Limited at Melbourne and at Fremantle is assigned to employees who are members of The Federated Storemen and Packers' Union whilst, in the case of the depots so excepted, the like functions are committed to The Transport Workers' Union. The purpose of the illustration is to show how the dispute or disagreement has arisen. It has arisen because there is some overlapping of the "constitutional coverage" of the unions concerned and the competing contentions are, on the one hand, that where, as in the present case, disputes arise in relation to a new form of industry as to whether functions commonly performed previously by members of different unions should, in relation to prescribed places of work, be committed exclusively to employees who are members of one of those unions, such disputes are industrial disputes. On the other hand, the prosecutor claims that such disputes are not industrial disputes and further that the Commission lacks authority to make an award committing any of those functions exclusively to the members of one union. (at p559)

4. Two other matters remain to be mentioned at this stage. The first is that, since it was thought that the Commission could not in the present proceedings bind The Waterside Workers' Federation by an award allocating some functions, and denying others, to its members, the Commission made and published a recommendation (presumably to the employers and unions concerned) that at the container terminals therein mentioned the functions thereinafter specified in detail should be performed by employees of the employers concerned who should be members of The Waterside Workers' Federation. (at p559)

5. The second matter is that on 10th March 1969, a so-called bans clause - which, because of the character of the award that had been made, was wider than usual - was inserted in the award. An order absolute for prohibition is now sought by The Transport Workers' Union in respect not only of the substantive provisions of the award and of the bans clause but also in respect of the Commission's recommendation. (at p559)

6. The recommendation was, it may be assumed, made in the exercise of the Commission's authority to make such suggestions and to do all such things as appear to it to be right and proper for preventing or settling industrial disputes and for effecting a reconciliation between the parties to such disputes. But, quite apart from the character of the functions in the exercise of which the recommendation may have been made, it is apparent that the recommendation does not create any legal rights, that it has no legal force of its own, that there are no means by which it can be executed in any sense of the term and that the application for prohibition is, so far as the recommendation is concerned, altogether misconceived. (at p559)

7. Many objections were taken to the award of 3rd March 1969. But in the end the initial question for decision was, it appeared to me, whether the dispute which was said to have arisen between the employers on the one hand and the six unions on the other hand, was a dispute as to an industrial matter or matters within the meaning of the Conciliation and Arbitration Act. As already appears the dispute is said to have been created by the service of the log of claims and the failure of the unions concerned to agree to the demands made. The log, itself, demands that the unions shall agree that in the performance of work by the employees of the company specified "demarcations" shall be observed. Then, as in the subsequent award, follow paragraphs successively purporting to provide for the allocation to employees who are members of a specified union specified functions at prescribed container depots. Again by way of illustration the second of these paragraphs purports to allocate prescribed functions at specified depots to members of The Federated Storemen and Packers' Union of Australia. But there can be no question that the employers concerned were at liberty to employ members of that union in the performance of those functions and that the only purpose of the log was to secure, in relation to the new form of industry, an award effecting a so-called demarcation of those functions in prescribed places of work as between members of the different unions. The log, therefore, presents itself as a demand that in respect of the functions described in each successive paragraph members of unions other than that specified shall not be employed in the performance of the specified functions. (at p560)

8. The expression "industrial dispute" means a dispute as to industrial matters which extend beyond the limits of any one State and "industrial matters" means all matters pertaining to the relations of employers and employees and without limiting the generality of those words includes a number of matters thereafter particularly specified. It is the contention of the respondents who took an active part in the case that the service of the log and the subsequent failure on the part of the unions to agree to the demands therein made gave rise to a dispute and that the subject-matter of the dispute falls fairly within the general words of the definition in s. 4 of the Act and, particularly, within those of par. (p). That paragraph provides that "industrial matters" shall include

". . . any question as to the demarcation of functions of

employees or classes of employees, whether as between

employers and employees or between members of different

organizations".

The particular question in relation to this paragraph is whether, where two or more unions have overlapping "coverage" in respect of some particular calling or occupation, employees engaged in that calling or occupation may be said to constitute different classes of employees according to their union membership and whether, in such a case, a demand that those functions shall, in a particular work place, be performed by the members of one union to the exclusion of the members of the other union or unions, provides a proper foundation for a "demarcation" dispute. Perhaps, it may be said, the question is more at large than this for neither the log in question here nor the award is, in terms, limited to employees following particular callings or occupations; the "classes" with which each instrument deals are employees generally classified by reference to their union membership and this is so in spite of the fact that the unions concerned may have as members persons following quite different callings or occupations. I am prepared, however, to assume for the purposes of the case that the immediate question for decision is as I have stated it. (at p561)

9. In considering this question one should start by emphasizing that what the paragraph is concerned with is the "demarcation of functions of employees or classes of employees". This is a comprehensive phrase and its language suggests that it is concerned with questions as to the functions of employees as such, that is to say, having regard to their particular callings or occupations. But it is upon the word "classes" in the paragraph that the respondents rely. This, they say, is a word of extremely wide import and there is no reason why it should not be understood to include a division into classes according, not to the common attributes of particular callings or occupations, but according to union membership. It may be conceded that the word "classes" is capable of the widest significance and, of course, to find what is meant by it in any particular case one must look at the context in which it is used (cf. Sovereign Life Assurance Co. v. Dodd (1892) 2 QB 573 and Ottawa Separate Schools Trustees v. Mackell (1917) AC 62 ). However an examination of par. (p) makes it clear, in my opinion, that the respondents' contention should be rejected. It is, of course, only as an employee and not as the member of a union, that an employee has functions in relation to his employment. These functions consist of the duties which he is employed to perform, or, as it may be said, appropriate to the calling or occupation in which he is engaged and it is only in relation to such functions that a "demarcation issue" of the character contemplated by the paragraph can arise. The reference to "classes" in the paragraph does no more than recognize, naturally enough, that demarcation problems may arise not only in relation to particular employees but also in relation to classes of employees and such "classes" are, I think, determinable only by reference to the common attributes of particular callings or occupations; it would, in my view, be foreign to the purpose of the paragraph to effect a division of employees into classes solely by reference to their membership of different unions and despite the fact that such employees may be engaged in a common calling or occupation. Further I am at a loss to understand how an award which specifies that at prescribed work places the work of a particular calling which is within the "coverage" of two or more unions shall be performed by the members of one union to the exclusion of the members of the other, or others, can be characterized as a "demarcation of functions of employees or classes of employees". I should add that I find some support for the view which I entertain on this point in s. 47 of the Act - a provision to which I shall refer presently. (at p562)

10. This is not, of course, the end of the matter for the general words of the definition are not limited by the paragraphs which succeed them and I am of opinion that the dispute was as to a matter which pertained "to the relations of employers and employees". It was concerned with the performance of work in specified places of work in a new form of industry and the question as to who should be employed to perform the various functions with which the log and the subsequent award dealt was not one to be determined merely by a consideration of the constitution of each union; rather it was to be resolved by determining whether any of the demands made by the log should be made the subject of an appropriate award after consideration of the circumstances prevailing at each of the places of work with which the log dealt and with which the Commission was concerned. Such a dispute was radically different from a demarcation dispute. Nevertheless, it was, in my view, a dispute as to an industrial matter and therefore an industrial dispute. (at p562)

11. But it seems to me that however widely the definition of "industrial matters" may be understood there still remains a formidable obstacle in the way of the respondents. Once the conclusion is reached that the award did not effect what was truly a "demarcation of functions" but merely assigned the performance of functions at particular work places to the members of particular unions to the exclusion of the members of other unions with overlapping "coverage" it appears to me that the award is in conflict with s. 47 of the Act. That section provides that

"The Commission may, by an award, or by an order made

on the application of an organization or person bound by an

award, direct that preference shall, in relation to such matters,

in such manner and subject to such conditions as are specified

in the award or order, be given to such organizations or members

of organizations as are specified in the award or order".

This provision, it may be noticed, is not limited to preference in employment; it extends to preference in relation to any matter which the Commission thinks appropriate for such a direction and it seems inconsistent with the notion that the Commission may by an award exclude the members of one union from the performance of functions otherwise appropriate to their calling or occupation and within the "constitutional coverage" of the union. The history of the section is set out in R. v. Wallis [1949] HCA 30; (1949) 78 CLR 529 and it appears quite clearly from the case that it constitutes a limitation on the general powers of the Commission to make awards in the settlement of industrial disputes (see per Latham C.J. (1949) 78 CLR, at p 543 and per Dixon J. (1949) 78 CLR, at p 553 ) and that the limitation is such that the authority of the Commission does not extend to the making of an award in the form now in question. (at p563)

12. In the result, therefore, prohibition should, I think, go to the award of 3rd March 1969 and, as a necessary consequence of the view that that award was made without authority, also to the award of 10th March 1969 by which the bans clause was introduced. (at p563)

ORDER

Order nisi for writ of prohibition discharged with costs.