Prohibition against the Conciliation and Arbitration Commission requires clear establishment that identified persons are not parties to the dispute; a showing that an unascertained number of unidentified persons are probably not parties is insufficient.
Later decisions that cite R v Alley; Ex parte NSW Plumbers & Gasfitters Employees' Union
Decisions cited by R v Alley; Ex parte NSW Plumbers & Gasfitters Employees' Union
THE QUEEN V. ALLEY; Ex parte N.S.W. PLUMBERS & GASFITTERS EMPLOYEES' UNION
[1981] HCA 61; (1981) 153 CLR 376
Industrial Law (Cth) - Constitutional Law (Cth)
High Court of Australia
Gibbs C.J.(1), Mason(2), Murphy(3), Aickin(4), Wilson(5) and Brennan(6) JJ.
CATCHWORDS
Industrial Law (Cth) - Conciliation and Arbitration - Conciliation and Arbitration Commission - Industrial dispute - Determination of existence - Log of claims of organizations of employees - No evidence that persons served were employers - Powers of Commission - Conciliation and Arbitration Act 1904 (Cth), ss. 24(1)8 40(1) (a), (c), 61(c).Constitutional Law (Cth) - Powers of the Commonwealth Parliament - Conciliation and arbitration - Interstate industrial dispute - Provision that award determining dispute binds all parties notified who do not satisfy Commission they are not parties to dispute - Validity - The Constitution (62 & 63 Vict. c. 12), s. 51(xxxv) - Conciliation and Arbitration Act 1904 (Cth), s. 61 (c).
HEARING
1981, March 11, 12; November 17. 17:11:1981DECISION
November 172. It was not in contest that there was, in the present case, an industrial dispute extending beyond the limits of one State. The dispute was a paper dispute, which had been created by the formal delivery, by the Plumbers and Gasfitters Employees' Union of Australia ("the respondent union"), of a letter of demand and a log of claims, and the failure of a number of employers, in three States, to comply with the demands in the log. It was not argued on behalf of the prosecutors before us that the demands were not real demands genuinely made. In these circumstances, the Australian Conciliation and Arbitration Commission ("the Commission") had jurisdiction and power to settle that dispute by arbitration. However, the submission that the Commission had exceeded its jurisdiction was based on the finding made in the Commission by Alley J. at first instance, and affirmed on appeal by a majority of a Full Bench, that 1,992 persons, who had been served with the log of claims and with a notice fixing the time and place of the hearing, and who had been sent a questionnaire asking them whether they employed any persons within the descriptions contained in the log, but who neither appeared nor replied to the questionnaire, were parties to the dispute. It was possible that some of these 1,992 persons employed employees in the categories of employment to which the log related, but it was virtually certain that some of them did not, and there was no evidence to show which were and which were not employers. The Master Plumbers and Mechanical Contractors' Association of New South Wales ("the Association"), an industrial union of employers and one of the prosecutors, which, it is now conceded, did not employ any employees of the relevant kind, was also found to be a party to the dispute. In these circumstances the submission on behalf of the prosecutors was put in two ways. In the first place it was said that if the Commission made an award it would not be binding on some, at least, of the 1,992 persons, and that in proceeding on the basis that an award would bind all of those persons the Commission was exceeding its jurisdiction. Secondly, it was said that it was the duty of the Commission, before it exercised its jurisdiction, to determine, inter alia, who were the parties to the dispute, and that this condition precedent had not been satisfied, because the Commission had acted on an error of law, and its determination of the question who were the parties to the dispute was an ostensible but not a real performance of its duty. Therefore, it was submitted, mandamus should be directed to the Commission to compel it to perform its duty in accordance with the law, and a temporary prohibition (or prohibition quousque), operative only until the Commission had made a proper legal determination, should be issued. (at p381)
3. The first of these submissions - that an ordinary order of prohibition should issue because the Commission was exceeding its jurisdiction as to some at least of the 1,992 persons - cannot be sustained. There is no doubt that the jurisdiction of the Commission to make an award binding on any person depends on the person being a party to the dispute in settlement of which the award is made: R. v. Kelly; Ex parte Victoria [1950] HCA 7; (1950) 81 CLR 64, at p 82 . A person who does not employ (or intend to employ) any labour cannot be a party to a dispute with a union which makes a demand about the pay and conditions of work of employees. In the present case the Commission could not make an award which would bind any one of the 1,992 persons who was not an employer (including in that expression intended employer) of labour of the relevant description. Where the jurisdiction of the Commission depends on the existence of facts, it is proper for the Commission to inquire whether those facts exist, so that it may determine whether or not it should proceed with the matter before it. However, its decision on that question is not binding, and when an application for prohibition is made to this Court, it is for this Court to decide as to the existence of the facts which constitute the condition of jurisdiction. This is well settled: see Federated Engine-Drivers' and Firemen's Association of Australasia v. Broken Hill Pty. Co. Ltd. [1911] HCA 31; (1911) 12 CLR 398, at pp 415, 428, 444, 453-454 ; R. v. Blakeley; Ex parte Association of Architects, etc., of Australia [1950] HCA 40; (1950) 82 CLR 54, at pp 69-70, 90-91, 98-100 ; Mutual Life & Citizens' Assurance Co. Ltd. v. Attorney-General (Q.) [1961] HCA 51; (1961) 106 CLR 48, at p 56 ; and see also Reg. v. Federal Court of Australia; Ex parte W.A. National Football League [1979] HCA 6; (1979) 143 CLR 190, at pp 215-216 . On an application for prohibition, the burden of establishing the facts which show an absence of jurisdiction always rests on the prosecutor: Reg. v. Foster; Ex parte Commonwealth Life (Amalgamated) Assurances Ltd. [1952] HCA 10; (1952) 85 CLR 138, at p 153 . The onus was not discharged by the prosecutors in the present case except in relation to the Association. Since there is no evidence to show whether any of the 1,992 persons was or was not an employer, the prosecutors have failed to show that any particular person (apart from the Association) was not a party to the dispute and was not subject to the jurisdiction of the Commission. No ground has therefore been established for directing prohibition to the Commission in respect of any person except the Association. Mr. Handley, for the respondent union, was prepared to submit to an order absolute in respect of the Association. However, in the circumstances it hardly seems necessary to prohibit the Commission from proceeding in the matter in so far as it relates to the Association only. The fact that the Association was not an employer was not apparent on the face of the proceedings, and, it appears, was not made known to Alley J., and an amendment to the findings of the Commission will correct the oversight in this regard. (at p382)
4. The second submission involves questions of greater difficulty. By s.
24(1) of the Conciliation and Arbitration Act 1904 (Cth)
as amended, ("the
Act"), it is provided as follows:
"Subject to this section, where proceedings in relation to an industrial
dispute or alleged industrial dispute come before
the Commission, however
constituted, the Commission shall determine whether there is an industrial
dispute and, if so, who
are the parties and what are the matters in
dispute, and record its findings, but the Commission may vary or revoke
any of
those findings."
The provisions of sub-s. 2 of that section are not material in the present
case. Alley J. did determine who were the parties to the
dispute, and he did
record his findings. As has been said, the persons found to be parties
included that 1,992 persons as to whom
there was no evidence as to whether
they were employers or not. Alley J., and the majority of the Commission, held
that s. 61(c)
of the Act entitled the Commission to find that those persons
were parties to the dispute. It is necessary to set out the provisions
of s.
61 in full. They are as follows:
"An award determining an industrial dispute is binding on - (a) all
parties to the industrial dispute who appeared or were
represented before
the Commission;
(b) all parties to the industrial dispute who were summoned or notified, either personally or as prescribed, to appear as parties to the dispute, whether they appeared or not;
(c) all parties who, having been notified, either personally or as prescribed, of the industrial dispute and of the fact that they were alleged to be parties to the dispute, did not, within the time prescribed, satisfy the Commission that they were not parties to the dispute;
(d) in the case of employers, any successor to, or any assignee or transmittee of, the business of a party to the dispute or of a party bound by the award, including any corporation which has acquired or taken over the business of such a party;
(e) all organizations and persons on whom the award is binding as a common rule; and
(f) all members of organizations bound by the award." (at p383)
5. Section 61 presents some difficulties of construction, but it has no
operation when the Commission is making a finding under
s. 24(1) as to the
parties to the dispute. Section 61 is directed to a different question, namely
who are the parties on whom an
award is binding. Paragraphs (a) and (b) make
the award binding on all parties to the dispute who appeared or were
represented or
were summoned or notified to appear as parties to the dispute.
Paragraph (c) does not refer to "parties to the dispute" but to "parties".
This difference in terminology between par. (c) on the one hand and pars. (a),
(b) and (d) on the other is significant. If the provisions
of par. (c) were
understood to refer to parties to the dispute, they would seem to add very
little to the provisions of pars. (a)
and (b), and they would also be
nonsensical; their effect would be that an award would bind a person who was
in fact a party to a
dispute, if, having been notified that he was alleged to
be a party to the dispute, he did not, within the time prescribed, satisfy
the
Commission that he was not a party to the dispute. For these reasons, the
words "all parties" in par. (c) cannot refer to parties
to the dispute; they
must refer to parties to the proceedings, or to the award, who have not been
shown to be parties to the dispute.
So construed the provision seems of
doubtful validity, for, under the Constitution, the jurisdiction of the
Commission, so far as it is relevant, depends on the existence or threat of an
interstate industrial dispute,
and, as I have said, an award cannot bind a
person who is not a disputant. The Parliament cannot extend the operation of
its laws
to subjects beyond its power: Milicevic v. Campbell [1975] HCA 20; (1975) 132 CLR
307, at p 316 . It is difficult to treat s. 61(c) as merely an evidentiary
provision. However, it is unnecessary to pronounce finally on the validity of
s. 61(c), for that provision has no relevance in the present case. (at p384)
6. A further reason for holding that s. 61(c) could not on any view have any operation when the matter came before Alley J. is that the "time prescribed" by that paragraph had not expired when the determination under s. 24 was made. Regulation 32(1) of the regulations made under the Act provides that the prescribed time for the purposes of s. 61(c) is "fourteen days after the service on the person concerned of the notification referred to in that paragraph or the time between the date of that service and the date of the conclusion of the hearing of the industrial dispute, whichever is the longer". The making of a determination under s. 24(1) does not conclude the hearing of the industrial dispute, so that the time allowed for a party to satisfy the Commission that he was not a party to the dispute had not expired at the time of the making of the determination under s. 24. (at p384)
7. However, the fact that the Commission has misunderstood the effect of s.
61(c) does not mean that it has misconceived its duty
under s. 24. The law
applicable to this question is nowhere more clearly explained than in the
judgment of Rich, Dixon and McTiernan
JJ. in R. v. War Pensions Entitlement
Appeal Tribunal; Ex parte Bott [1933] HCA 30; (1933) 50 CLR 228, at pp 242-243 , where their
Honours said:
"In the case of a tribunal, whether of a judicial or an administrative
nature, charged by law with the duty of ascertaining
or determining facts
upon which rights depend, if it has undertaken the inquiry and announced a
conclusion, the prosecutor
who seeks a writ of mandamus must show that the
ostensible determination is not a real performance of the duty imposed by
law upon the tribunal. It may be shown that the members of the tribunal
have not applied themselves to the question which the
law prescribes, or
that in purporting to decide it they have in truth been actuated by
extraneous considerations, or that
in some other respect they have so
proceeded that the determination is nugatory and void. But the prosecutor
who undertakes
to establish that a tribunal has so acted ought not to be
permitted under colour of doing so to enter upon an examination of
the
correctness of the tribunal's decision, or of the sufficiency of the
evidence supporting it, or of the weight of the
evidence against it, or of
the regularity or irregularity of the manner in which the tribunal has
proceeded. The correctness
or incorrectness of the conclusion reached by
the tribunal is entirely beside the question whether a writ of mandamus
lies."
(See also R. v. Blakeley; Ex parte Association of Architects, etc., of
Australia (1950) 82 CLR, at p 73, 83-84 .) (at p385)
8. In the present case the Commission clearly perceived that its duty was to find who were the parties to the dispute, and the prosecutors really seek to canvass the correctness of the conclusion which it reached and the sufficiency of the evidence supporting it. By s. 40(1) of the Act, the Commission, in any proceedings before it, is not bound by any rules of evidence but may inform itself on any matter in such manner as it thinks just, and shall act according to equity, good conscience and the substantial merits of the case, without regard to technicalities and legal forms. Those provisions would enable the Commission to act on the view that a person served with a log of claims, notified of the proceedings, and then requested to reply to a questionnaire which asked whether he was an employer, and who did not appear or reply, might, prima facie, be treated as a party to the dispute, if the circumstances did not indicate to the contrary. However, whether the Commission's determination was supported by any evidence is not the question on this application for mandamus. (at p385)
9. It is true that the determination made by the Commission as to who are the parties to the dispute may become important when the Commission comes to consider whether it should exercise its power under s. 41(1)(d) of the Act to refrain from further hearing or from determining the dispute on the ground that the dispute is proper to be dealt with by a State industrial authority or that further proceedings are not necessary or desirable in the public interest. The prosecutors in the present case are, respectively, an industrial union of employees and an industrial union of employers registered under the law of New South Wales. For many years, industrial relations between employers and employees in the industry in question have been regulated under the law of New South Wales. In these circumtances, it may be relevant to the question whether the Commission should proceed with the present matter to know how many employers are parties to the dispute. The finding that the 1,992 persons form part of the number of such employers is, admittedly, inaccurate, but the Commission has power to vary or revoke that finding. These matters, however, are irrelevant to the present application. (at p386)
10. For these reasons I have concluded that the Commission has discharged its duty under s. 24 to determine who are the parties to the dispute. It follows that the further argument that prohibition should be granted until the Commission has performed its duty under s. 24 must also fail. (at p386)
11. For the reasons that I have given the orders nisi should be discharged. (at p386)
MASON J. We have two applications to make absolute orders nisi for prohibition made by Stephen J. Each order nisi is directed to Alley J., a Deputy President of the Australian Conciliation and Arbitration Commission, and the Plumbers and Gasfitters Employees' Union of Australia ("the federal union") and it seeks to prohibit further proceedings in matter C. No. 1140 of 1979 in the Commission in so far as it related to parties in the State of New South Wales. By amendment certain members of the Full Bench of the Commission have been joined as respondents. (at p386)
2. The prosecutors in the first application (No. 113 of 1980) are The N.S.W. Plumbers and Gasfitters Employees' Union ("the N.S.W. union") which is registered under the Trade Union Act 1881 (N.S.W.), as amended, and the Industrial Arbitration Act 1940 (N.S.W.), as amended, and Mr. Bignell, the Secretary of the N.S.W. union. The first prosecutors in the second application are The Master Plumbers and Mechanical Contractors Association of New South Wales ("the Association") which is an industrial union of employers registered under the Industrial Arbitration Act and as a trade union under the Trade Union Act, but it is not registered under the Conciliation and Arbitration Act 1904 (Cth) ("the Act"), as amended. The second prosecutor is F. E. McDonald Pty. Ltd. which is engaged in the business of plumbing and gasfitting contracting. (at p386)
3. The prosecutors seek prohibition in relation to some 1,992 New South Wales persons and entities found by the Commission to be parties to an interstate industrial dispute extending to New South Wales, Victoria and Queensland on the grounds that they are not parties to that dispute and that there was no evidence before the Commission showing them to be parties. The prosecutors also seek mandamus requiring the Commission to make an appropriate finding as to parties. (at p386)
4. The practical importance of the contest between the parties is that the Commission is proposing to proceed to the making of an award which will regulate relations between employers and employees in the plumbing industry in New South Wales when the industry has been regulated in the past by a State award, the Plumbers and Gasfitters (State) Award made by the Plumbers and Gasfitters (State) Conciliation Committee on 28 November 1979. Both the N.S.W. union and the Association are opposed to the making of a federal award, the initiative for that development having been taken by the federal union. (at p387)
5. According to an affidavit sworn by George Robert Crawford, the General Secretary of the federal union, the federal union on 22 June 1979 served a letter of demand and an attached log of claims by post on a large number of persons and entities in New South Wales, Victoria, Queensland and the Australian Capital Territory. It seems that most if not all the New South Wales names and addresses were obtained from New South Wales telephone directories under the heading of "Plumbers and Gasfitters". The log related to remuneration and conditions of employment. The log was accompanied by a letter of demand asserting that the terms of the log applied to "all employees in your employ, whether members of" the N.S.W. union "or not". (at p387)
6. The letter of demand also stated:
"Unless within seven days of the service of this Log you comply with the
demands contained in it the Union will regard
the matters set out in the
Log of Claims as in dispute and will proceed accordingly under the
provisions of the Conciliation
and Arbitration Act 1904-1975 to seek an
Award in the terms of the Log of Claims in settlement of the said
industrial dispute."
(at p387)
7. On 24 July 1979 each person and entity served with the log of claims was
duly notified by a Deputy Industrial Registrar of the
time and place of
hearing of the industrial dispute. The notification stated:
"TAKE NOTICE that you are alleged to be a party to an Industrial Dispute
in relation to the following industrial matters,
i.e., the several matters
claimed against you in a Log of Claims served on you in the manner
prescribed"The notification concluded by saying:
by the federal union.
8. The Association sent a questionnaire to recipients of the log of claims in
New South Wales asking them whether they employed
relevant labour. Those who
replied that they did not were excluded by Alley J. from the finding of a
dispute made on 25 March 1980.
Other persons were excluded or placed on a
"reserve list". However, Alley J. included in the parties to the dispute 1,992
persons
and entities on whom the log of claims and letter of demand had been
served and who failed to reply to the notification of dispute
or to the
questionnaire. He did so relying on s. 61(c) of the Act. (at p388)
9. The prosecutors appealed from that part of the decision to the Full Bench of the Commission. They argued that the jurisdiction of the Commission to conciliate and arbitrate interstate industrial disputes can extend only to parties to the dispute who are established as employers of relevant labour or, if not, as persons who usually employ such labour and that as such employers they are in dispute upon the log of claims. If they are not shown to be employers then they cannot be disputants because the condition necessary for the existence of a dispute, the employment of labour, is not satisfied, so it was argued. (at p388)
10. It was conceded that, of the 1,992 persons served who did not respond to the log of claims and questionnaire, some probably employed labour and some did not. As those who did could not be distinguished from those who did not, none of the 1,992 were parties to the dispute or could be named as parties to it. (at p388)
11. The majority of the Full Bench (Coldham J. and Commissioner Paine, Staples J. dissenting) thought that s. 61(c) provided an answer to the argument. They read the section as identifying the persons whom it is appropriate to include as parties to a dispute which the Commission otherwise has jurisdiction to arbitrate. They rejected the contention that s. 61(c) should be interpreted as referring to "parties to the dispute" who are alleged to be parties, are then shown to be parties and have not satisfied the Commission that they are not parties. They therefore concluded that Alley J. found that the 1,992 parties in question were parties to the dispute. (at p388)
12. The majority considered that Mr. Crawford's statement in his affidavit of service that the log of claims and letter of demand had been served on employers in each State was not acceptable evidence that the 1,992 were employers, the more so because the prosecutors were refused permission to cross-examine Mr. Crawford. (at p388)
13. However, the majority, noting that the names had been obtained from the
heading "Plumbers and Gasfitters" in the telephone directory,
inferred that
they had "inserted their names at their own instigation and are probably
plumbers and gasfitters". They pointed also
to the statement in the first
paragraph of the log of claims:
"This log relates to the employment of employees whether members of the
Plumbers and Gasfitters Employees' Union or not who
are employed or
usually employed in executing any plumbing, gasfitting, pipefitting or
domestic engineering work . . . "
In these circumstances it was thought proper to conclude that the 1,992 were
"alleged to be parties to the dispute" and that s. 61(c)
in conjunction with
s. 24(1) entitled, and indeed obliged, Alley J. to include them as parties to
his finding. (at p389)
14. Section 61 is one of a series of provisions dealing with the form, effect and operation of awards. It is not to be found in the earlier provisions of the Act which regulate the procedure and powers of the Commission in proceedings leading to the making of an award. It is remote from s. 24 which imposes on the Commission the duty of determining whether there is an industrial dispute and, if so, who are the parties and what are the matters in dispute. As its place in the scheme of things suggests, it is not designed to prescribe the procedure binding the Commission in making findings under s. 24 or in making an award. All that it seeks to do is to describe or list the persons or classes of person on whom an award once made is binding. Paragraphs (d), (e) and (f), in referring to persons who are not parties to the proceedings, make it clear that the role of s. 61 is to identify the persons bound by an award and that it does not prescribe the procedure to be applied by the Commission in making findings as to parties under s. 24. (at p389)
15. However, the Commission is entitled in the exercise of its discretion to determine its own procedure: s. 40(1)(a). It can, if it so chooses, adopt the s. 61(c) rule as a rule of procedure or apply the rule which it embodies as a basis for deciding who are the parties to a dispute. It is a sensible rule which might well have been applied by the Commission even if it had not been expressed in s. 61(c). (at p389)
16. In one sense the interpretation of s. 61(c) is immaterial to the issues which this Court has now to decide. Whether s. 61(c) is given the construction which I favour or the one which I reject, it cannot affect or qualify the exercise by this Court of its jurisdiction to determine whether the Commission is exceeding its power to arbitrate a dispute falling within s. 51(xxxv) of the Constitution. It has been repeatedly affirmed by this Court that it has to determine independently for itself whether in a particular case the Commission has or lacks jurisdiction and that in reaching its decision this Court will apply the ordinary rules of evidence: Federated Engine-Drivers' and Firemen's Association of Australasia v. Broken Hill Proprietary Co. Ltd. [1911] HCA 31; (1911) 12 CLR 398, at pp 415-416, 444, 453-454 ; R. v. Blakeley; Ex parte Association of Architects, etc., of Australia [1950] HCA 40; (1950) 82 CLR 54, at pp 69-71, 73, 91-92 . There are several reasons why this is so. The Commission is not a court. It is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks just: s. 40(1)(b). Conversely, it may apply, or by bound to apply by virtue of the statute, a specific rule of evidence or procedure which has no application to the High Court. And it is at least doubtful whether Parliament could legislate so as to qualify by a rule of evidence (not being an onus of proof provision) the High Court's constitutional jurisdiction under s. 75(v) to determine whether an interstate industrial dispute exists: see Milicevic v. Campbell [1975] HCA 20; (1975) 132 CLR 307, at pp 318-319 . (at p390)
17. In passing I note the comments of Fullagar J. in Blakeley (1950) 82 CLR, at pp 92-93 . His Honour, though maintaining the doctrine that this Court must determine for itself questions on which the jurisdiction of the Commission depends, drew a distinction between questions of law and questions of fact. He said that if the jurisdiction depends on matters of fact, considerable weight is attached to the decision of the court. He was, of course, referring to the old Arbitration Court. His remarks have equal application to the Commission. He concluded by saying (1950) 82 CLR, at p 93 , after referring to the remarks of Isaacs J. in Caledonian Collieries Ltd. v. Australasian Coal and Shale Employees' Federation (No. 1) [1930] HCA 1; (1930) 42 CLR 527, at pp 547-548 : "It may be more correct to say that, as to fact, a doubt as to error is resolved in favour of the decision of the inferior tribunal." The weight to be given to the Commission's decision will depend on the circumstances. If the evidence remains the same, if the Full Bench on appeal has confirmed the decision at first instance and if the issue of fact is one in the resolution of which the Commission's knowledge of industry specially equips it to provide an answer, greater weight will be accorded than in cases in which one or more of these factors is absent. (at p390)
18. Although the decision of Alley J. was confirmed by the Full Bench, other factors in the present case do not suggest that it is one in which great weight should be given to the decision. It rested very much on the s. 61(c) rule and the issue which arose is quite as readily determined by this Court as by the Commission. (at p390)
19. As s. 61(c) is immaterial to this Court's resolution of the case I am not inclined to make any final pronouncement as to its validity. I would say, however, that the reference to "all parties" is a reference to "all parties to the proceedings", not to "all parties to the dispute". The contrasting references to "all parties to the industrial dispute" in pars. (a) and (b) and the need to avoid tautology are enough to compel this conclusion. But, for the reasons already given, the provision cannot oust the jurisdiction of this Court to determine jurisdictional questions or, for that matter, the jurisdiction of the ordinary courts to decide in proceedings for breach of an award that the defendant was not bound by it: R. v. Kelly; Ex parte Victoria [1950] HCA 7; (1950) 81 CLR 64, at p 82 . On the other hand, it is not easy to see how the provision can be regarded, as the Solicitor-General suggested, as one which enacts a prima facie or presumptive rule only. (at p391)
20. Section 24(1) imposes a duty on the Commission to make the findings and non-performance of the duty will give rise to relief by way of mandamus in an appropriate case. But I do not accept the prosecutors' submission that the making of correct findings in accordance with the sub-section as to an industrial dispute, as to parties and as to the matters in dispute is a condition precedent to the further exercise of jurisdiction by the Commission in going on to make an award. (at p391)
21. Even so this Court is bound to apply the overriding principle that the Commission's jurisdiction is relevantly limited to the prevention and settlement of an actual, threatened or impending industrial dispute extending beyond the limits of a single State. It is common ground that in the present case the Commission is dealing with an interstate industrial dispute which satisfies both constitutional and statutory requirements. The controversy is not whether such a dispute exists, but whether some of the named parties, the 1,992, are parties to it. Nevertheless, the fact that the Commission has jurisdiction to settle the dispute between those who are parties to it does not mean that it has jurisdiction to settle the dispute on the footing that it is a dispute to which 1,992 strangers are also parties. Just as this Court will prohibit the Commission at the instance of a party to a dispute which does not answer the constitutional description from arbitrating it so it will also prohibit the Commission from arbitrating a dispute which answers that description against persons who are not parties to it. The point is that to the extent to which the Commission attempts to arbitrate the dispute against nonparties it exceeds its jurisdiction and is liable to be restrained by prohibition. (at p391)
22. What I have said conforms to the well-known decisions of the Court in the
"common rule" cases: see particularly the early decisions
of Australian Boot
Trade Employees' Federation v. Whybrow & Co. [1910] HCA 53; (1910) 11 CLR 311 ; George Hudson
Ltd. v. Australian
Timber Workers'
Union [1923] HCA 38; (1923) 32 CLR 413 . In George Hudson
(1923) 32 CLR, at pp 440-441 Isaacs J. observed that the
provision in the
Commonwealth
Conciliation
and Arbitration Act 1904-1921 that an award should
bind successive assignees and transmitters
of the business of any
party bound
by the award (similar to the present s. 61(d)) made the award effective
"throughout the whole
period of the operation
of the award
for and against
those who during that period are or voluntarily come within the area of the
dispute". In a later common
rule case
Kelly the Court, in a passage which I
have already cited, said (1950) 81 CLR, at p 82 :
"A common rule does effect a result which is 'foreign to arbitration'. The
distinction may seem technical, and the practical
result of observing it
may be, as Mr. Ashburner said, merely to compel the joining of many
additional parties as respondents
before the court or commissioner - but
any parties so joined would not be bound by an award made in relation to
the dispute
unless they were parties, not only to the proceedings, but
also to the dispute. The distinction has been observed and emphasised
throughout the whole series of cases, it is a clear and logical
distinction, and, in our opinion, it ought to be observed
and the power to
make a common rule denied." (at p392)
23. The prosecutors in attempting to establish that the Commission lacks
jurisdiction to make an award in respect of the 1,992 persons
start with a
significant handicap. It is for the prosecutor seeking a writ of prohibition
to establish and to establish clearly the
facts which show an absence or
excess of jurisdiction. Reg. v. Foster; Ex parte Commonwealth Life
(Amalgamated) Asssurances Ltd.
[1952] HCA 10; (1952) 85 CLR 138 is an interesting
illustration of the proposition. There an award was made in respect of persons
engaged by an
industrial and life assurance company to canvass and collect
premiums. On its face it was restricted to "employees"
of that company.
The
company sought prohibition on the ground that the award was made without
jurisdiction because by an agreement
between the parties
the persons so
engaged were independent contractors or "agents" and not "employees" and that
therefore the dispute
giving rise to
the award was not an industrial dispute
because it did not relate to employment or as to any industrial matter
pertaining
to the
relations of employers and employees. The Court held that
the evidence failed to show that there was not any industrial dispute
because
it failed to exclude the possibility that the real relation between some or
all of the agents and the company in their work
was in
fact that of employer
and employee despite the provisions of the agreement. (at p393)
24. Dixon, Fullagar and Kitto JJ. said (1952) 85 CLR, at p 153 :
"The prosecutor's only case for attacking the jurisdiction to make the
award must be that, notwithstanding the log of claims,
there could be no
industrial dispute because no members of the respondent union in fact were
or could be employees of the
prosecutor company, so that the paper demand
was necessarily without any practical basis. To obtain a prohibition on
this
ground it is incumbent upon the prosecutor to exclude the possibility
of the log having any subject matter by clear proof leading
unmistakably
to that conclusion. The burden of establishing clearly the facts which
show absence of jurisdiction always rests
upon a prosecutor seeking a writ
of prohibition."
Later their Honours said (1952) 85 CLR, at p 154 :
"In the present case the question was raised before the Conciliation and
Arbitration Court and that Court passed upon it
before making the award.
It is true that there appears to have been no independent investigation of
the matter and that the
Court merely acted upon the information that Webb
J. had so decided. At the same time, in the circumstances, the prosecutor,
before resorting to prohibition ought in all reason to have made clear to
the Court to whose jurisdiction he objected that
he sought from it an
opportunity of establishing on evidence the absence of its jurisdiction.
Section 32(2) of the Conciliation and Arbitration Act 1904- 1951 provides that a determination or finding of the Court upon any question as to the existence of an industrial dispute shall, in all courts and for all purposes, be conclusive and binding on all persons affected by that question.
It is therefore clear that the policy of the legislature was to leave questions such as that in issue to the Arbitration Court." (at p393)
25. Their Honours then stated that the presence of s. 32(2) "did not lessen
the practical responsibility of the prosecutor in pressing
his objection"
before the Arbitration Court "and seeking to prove before it the facts upon
which the objection was founded" (1952)
85 CLR, at p 155 . They then
considered the possibility that they should settle an issue for trial and
await the finding of a single
justice, only to reject it, noting that the
question was not foreclosed by an award. (at p393)
26. The issue here then is: Do the prosecutors discharge the onus of establishing facts which show an absence or excess of jurisdiction in the Commission, and if so, should prohibition issue at the instance of the prosecutors who, after all, are not (with one exception) the persons against whom the Commission is allegedly exceeding its jurisdiction? (at p393)
27. Like the prosecutor in Reg. v. Foster, neither the prosecutors here nor the persons in respect of whom they complain attempted to adduce evidence in the Commission to show that they were not employers and that therefore the dispute was not as to "industrial matters" as defined in s. 4. As it is common ground that the probability is that some of the 1,992 are employers and some are not the conclusion is inevitable that the prosecutors are unable to discharge the onus of satisfying this Court that any particular person (except the Association) is not an employer. The question raised is whether the Commission exceeded its jurisdiction by proceeding to arbitrate against persons not parties to the dispute. It is for the prosecutors to show that particular persons are not parties to the dispute. At best all they can show is that there is a probability that an unascertained number of persons whom they are unable to identify are not parties. That certainly does not justify the issue of a prohibition in relation to the entire 1,992 persons. Once that is accepted, it is obvious that prohibition cannot go in relation to persons whose standing and identity cannot be ascertained. (at p394)
28. I am by no means satisfied that this would have been an appropriate case for prohibition in the event that the prosecutors were able to show that some identifiable persons found to be parties by the Commission are not employers. In substance this is an application for prohibition by a stranger; it is not an application brought by the persons against whom it is alleged a tribunal is exceeding its jurisdiction. I do not subscribe to the view expressed on occasions that prohibition issues as of right. Certainly prohibition will issue virtually as of right when a tribunal claims to exercise a jurisdiction against persons for which there is no warrant at all. But before issuing prohibition this Court has to be satisfied that the tribunal is exceeding, or intends to exceed, its jurisdiction. We have to take account of the Commission's power to vary its findings under s. 24: see Reg. v. Turbet; Ex parte Australian Building Construction Employees' and Builders Labourers' Federation [1980] HCA 47; (1980) 144 CLR 335, at pp 341, 351 where the Court refused to grant prohibition on the footing that the Commission would in all probability amend its findings, the Commission having taken possession as here of an interstate industrial dispute. In any event when application for prohibition is made by a stranger the Court has a discretion to grant or refuse it. The discretion will only be exercised when it appears that the tribunal by exceeding its jurisdiction will cause some deteriment to the stranger or others. In this case those in respect of whom complaint is made could, if the prosecutors' allegations were well founded, establish in other proceedings that they are not bound by the award. The prosecutors claim that they will suffer detriment because as things stand a federal award, if made, would appear to have sufficient coverage to justify displacement of the existing State award; aliter, if the 1,992 were not parties to the award. I am not inclined to think that this circumstance would have been enough to warrant the grant of prohibition. (at p395)
29. Finally there remains the claim for mandamus. I do not doubt that a
refusal by the Commission to perform its duty under s. 24
would warrant the
grant of mandamus at the instance of a party to whom the duty was owed and
that to my mind would include any party
to the proceedings. But I am unable to
discern in all that has happened an actual or constructive refusal by Alley J.
or the Full
Bench to perform the statutory duty. The prosecutors have simply
failed to show that the persons in question are not parties to the
dispute.
That in itself might not dispose of the case for mndamus if it appeared that
the Commission had made no real inquiry as
to who were the parties. But Alley
J. and the Full Bench did make an inquiry. Some criticism can be made of their
approach to the
application of s. 61(c), but that criticism does not lead to
the conclusion that there was no inquiry. In this respect we should
recall
what Barton J. said in Federated Engine-Drivers' and Firemen's Association of
Australasia (1911) 12 CLR, at p 428 :
"On the other hand, where the jurisdiction is not contested by the party
defending, very slight inquiry may be adequate,
and many cases will to the
mind of the tribunal be so plainly within its competence that it will
rightly forego inquiry unless
the objection is taken, and the objector
tenders proof of facts in its support." (at p395)
30. In the result there is no case for prohibition and mandamus. Although it
is now common ground that the Association is not an
employer, we should leave
it to the Commission to vary its finding, despite the fact that counsel for
the federal union consented
to the issue of prohibition in respect of the
Association. (at p395)
31. The orders nisi should be discharged. (at p395)
MURPHY J. The onus is on the prosecutor to prove clearly absence of jurisdiction in the person or body sought to be prohibited: R. v. Commonwealth Court of Conciliation and Arbitration and Merchant Service Guild of A/asia; Ex parte William Holyman and Sons Ltd. [1914] HCA 36; (1914) 18 CLR 273 ; Foster; Ex parte Commonwealth Life (Amalgamated) Assurances Ltd [1952] HCA 10; (1952) 85 CLR 138, at p 153 ; Reg. v. Commonwealth Conciliation and Arbitration Commission; Ex parte Australian Workers' Union [1957] HCA 97; (1957) 99 CLR 505 . The prosecutor who seeks prohibition in respect of an excess of jurisdiction, must prove clearly that there is no jurisdiction in respect of that part of the proceedings sought to be prohibited. (at p396)
2. Assuming that the case for prohibition would be made out if the prosecutor proved its allegation that some of the 1,992 respondents to the proceedings in the Commission were not employers in the industry, the prosecutor did not prove it. It asserted that probably some were, and some were not, such employers, but did not attempt to prove which were not. (at p396)
3. The methods of making claims by separate service upon individual employers (or employees) of logs of claims is primitive, time-wasting and often expensive. Registration of organizations of representative bodies brings some order and coherence into the system of prevention and settlement of disputes. It needs to be supplemented by a simple method of making claims, such as filing of logs of claims with the Commission and service on any organizations concerned and advertisement of the contents of the log or the fact that a log had been filed. (at p396)
4. Parliament attempted soon after Federation to provide for declaration of common rules which would be binding upon persons in particular industries. This was declared invalid by this Court: see Australian Boot Trade Employees' Federation v. Whybrow and Co. [1910] HCA 53; (1910) 11 CLR 311 ; R. v. Kelly; Ex parte Victoria [1950] HCA 7; (1950) 81 CLR 64 . Section 49 of the Act now provides for common rules in the Territories only. By providing for simple methods of substituted service of claims, summonses and notices, Parliament might achieve in practice common rules for industries throughout Australia, with probable advantages in uniformity of wages and conditions and diminution of demarcation disputes. (at p396)
5. The order should be discharged. (at p396)
AICKIN J. The nature of these applications to make absolute orders nisi for prohibition and mandamus, the relevant facts and the state of the proceedings in the Conciliation and Arbitration Commission are set out in the reasons for judgment of my brother Mason which I have had the advantage of reading. (at p396)
2. I am in general agreement with the reasons and with the conclusion that no case for prohibition is made out. In my opinion the decision of this Court in Reg. v. Foster; Ex parte Commonwealth Life (Amalgamated) Assurances Ltd. [1952] HCA 10; (1952) 85 CLR 138 is fatal to these applications. In that case an award was made in respect of persons engaged by an industrial and life assurance company and its application was in terms confined to employees of that particular company. Prohibition was sought on the ground of lack of jurisdiction because an agreement between the company and those performing the relevant work for it provided that such persons were "independent contractors" or "agents" and not "employees" and that therefore there could be no "industrial dispute" because the alleged dispute could not relate to employment or any industrial matter pertaining to the relations of employer and employee. The Full Court held that the evidence did not exclude the possibility that the real relation between those doing the relevant work and the company was in fact that of employee and employer notwithstanding the agreement. The relevant passages in the joint judgment of Dixon, Fullagar and Kitto JJ. are set out in Mason J.'s judgment. I think it nonetheless proper to repeat one sentence from p. 153, namely, "The burden of establishing clearly the facts which show absence of jurisdiction (i.e., in the Conciliation and Arbitration Commission) always rests upon a prosecutor seeking a writ of prohibition." (at p397)
3. In the present case the applicants did not attempt that task but contented themselves with relying on the probability that some of the 1,992 persons whose names appeared in the classified directory under the heading "Plumbers and Gasfitters" were not employers of labour and that some were. No attempt was made to identify individual members of either category (save for the applicant Association which is not an employer) or to provide any estimate of the numbers in either category. (at p397)
4. In these circumstances it is clear that the applicants have failed to discharge the onus of proving lack of jurisdiction and that the applications must be dismissed. It does not however follow that the applicants would not be able to offer evidence of the relative numbers of employers and non-employers when the matter comes before the Commission for further hearing. Not only is the Commission empowered to vary its findings under s. 24 of the Conciliation and Arbitration Act 1904, cf. Reg. v. Turbet; Ex parte Australian Building Construction Employees' and Builders Labourers' Federation [1980] HCA 47; (1980) 144 CLR 335 , but in the Commission's consideration of the application on the matter resuming before it, evidence as to relative numbers of employers and non-employers among those whose names appeared in the telephone book could be given as relevant to the exercise of the Commission's discretion to refrain from further action pursuant to s. 41(1)(d). That stage has not yet been reached and it is not necessary to do more than mention the possibility. (at p398)
5. In the circumstances I do not need to consider the question whether, if there had been proof that some persons served with the log were not employers, prohibition should or would have been refused as a matter of discretion or the extent of the discretion which this Court might possess in respect of the grant of prohibition. (at p398)
6. On the question of mandamus, I agree with Mason J. that no case for the grant of that remedy is made out. (at p398)
7. I would therefore discharge the orders nisi. (at p398)
WILSON J. I agree that the orders nisi should be discharged. I cannot usefully add to the reasons for that conclusion which have been prepared by other members of the Court. (at p398)
BRENNAN J. The jurisdiction of the Conciliation and Arbitration Commission to entertain an application to arbitrate an industrial dispute by making a federal award depends upon the anterior existence of an industrial dispute in the constitutional sense: Reg. v. Graziers' Association of N.S.W.; Ex parte Australian Workers' Union [1956] HCA 31; (1956) 96 CLR 317, at p 337 , per Fullagar J. Whether a particular dispute should be settled by the making of a federal award and, if so, what the terms of the award should be, are questions different from and logically consequent upon the answer to the question whether an industrial dispute exists. (at p398)
2. A dispute of the relevant kind may exist although it is difficult or impossible to identify all the disputants: Reg. v. Portus; Ex parte McNeil [1961] HCA 50; (1961) 105 CLR 537, at p 545 . Although it is not essential to the jurisdiction of the Commission to arbitrate a dispute that the disputants be identified with precision, s. 24(1) of the Conciliation and Arbitration Act 1904 (Cth) directs the Commission to determine "whether there is an industrial dispute and, if so, who are the parties and what are the matters in dispute . . . ". Of course, parties to a dispute and the matters in dispute between them are the very elements of a dispute, and it may be said that in logic a finding of a dispute either depends upon findings as to the parties to the dispute and matters in dispute or imports a present ability to make those findings. But strict logic cannot be pushed so far as to be out of accord with the subject matter to which s. 51(xxxv) of the Constitution and the Act relate. A dispute of the kind to which those provisions relate does not lose its character because of a fluctuation in the disputants: as Starke J. said in Burwood Cinema Ltd. v. Australian Theatrical and Amusement Employees' Association [1925] HCA 7[1925] HCA 7; ; (1925) 35 CLR 528, at p 548 , ". . . absolute definiteness of the individuals engaged in the dispute cannot be essential". An industrial dispute in the constitutional sense furnishes the foundation of the Commission's jurisdiction to settle that dispute by arbitration although there are persons who may be parties to the same dispute but whose identity or status as disputants is not known, or is wrongly found. (at p399)
3. Though the Commission does not have jurisdiction to include in an award made in settlement of a dispute a provision binding a person who is not a disputant (R. v. Kelly; Ex parte Victoria [1950] HCA 7; (1950) 81 CLR 64, at p 82 ), an erroneous finding that a person is a party to the dispute does not deprive the Commission of jurisdiction to settle the dispute by arbitration. And if the Commission's jurisdiction is invoked, an erroneous finding as to the status of a person or group of persons or disputants does not necessarily establish that the Commission has misconceived the nature of the particular arbitral function which the Act commits to it. (at p399)
4. In the present case, it is common ground that there is an industrial dispute extending beyond the limits of one State. It follows that, the Commission's jurisdiction having been invoked, it is empowered to settle that dispute by arbitration. It is submitted, however, that the evidence placed before the Commission thus far is insufficient to enable the Commission to ascertain the identity of those who are or are usually employers of labour among a group of 1,992 gasfitters and plumbers whose names were apparently taken from the telephone book and whom the Commission has found to be disputants. The issue is whether the Commission is empowered to proceed to arbitrate the dispute before it ascertains who are or are usually employers of labour among that group. (at p399)
5. The exercise of the arbitral jurisdiction which has been invoked is not conditioned upon the correctness of the Commission's finding on an enquiry under s. 24(1) as to the identity of the parties to the dispute. The Commission must do the best it can with the material before it: see s. 40(1), and error arising from the imperfect nature of the material before the Commission is an inevitable possibility. But it is clear that an error in making a finding on an enquriry under s. 24(1) does not bring the jurisdiction to arbitrate to an end, for a finding as to parties made pursuant to that direction is amenable to subsequent variation or revocation. In the present case, the Commission made a finding as to parties in compliance with the direction given by s. 24(1) and even if that finding were affected by error, the error does not deny the existence of the arbitral jurisdiction or preclude its exercise in hearing and determining the dispute generally. The right of any of the 1,992 who have been found to be disputants to challenge that finding is not presently in issue. Nor does the effect of an award, if an award is made, upon the rights and liabilities of any of the 1,992 arise for present consideration. Section 61 would be relevant to the latter question. (at p400)
6. Although the Commission was wrong to regard s.61(c) as a provision binding it to find that the 1,992 were disputants, I would agree with the Chief Justice that s. 40(1) would enable the Commission to act on the view that a person who was served with a log of claims, and notified of the proceedings, who was then requested to reply to a questionnaire which asked whether he was an employer and who did not reply might prima facie be treated as a party to the dispute if the circumstances did not indicate the contrary. The Commission's mistake as to the operation of s. 61(c) neither affected its finding as to the fact upon which its jurisdiction to arbitrate the dispute depended (that is to say, the existence of an industrial dispute in the constitutional sense), nor binds it to exercise its jurisdiction in a particular way. If it adheres to its finding as to the disputant status of the 1,992, as s. 40(1) entitles it to do, it may hear and determine the matter of the dispute in the light of that finding. If it chooses to vary or revoke that finding, it may do so. (at p400)
7. I would not grant mandamus to compel the making of a new finding under s. 24(1) simply because the Commission mistook the operation of s. 61(c), since the Commission is entitled to adopt the same approach pursuant to s. 40(1) and may lawfully resolve to do so in adherence to its practice. The Commission's power to vary or revoke its findings under s. 24(1) is sufficient to ensure, in the light of the judgments of this Court, that at any time when the findings might affect the Commission's exercise of its arbitral jurisdiction (and in particular in considering whether pursuant to s. 41(1) (d) it should refrain from further hearing or determining the dispute on one of the grounds therein referred to) the Commission will act upon findings made consistently with the Act. (at p400)
8. There is no ground for denying the existence of the Commission's jurisdiction nor for apprehending that its exercise will miscarry. It is unnecessary to make an order absolute merely to ensure that the prosecutor, the Master Plumbers and Mechanical Contractors' Association of New South Wales is excluded from the list of disputants. (at p400)
9. The orders nisi should be discharged. (at p400)
ORDER
Orders nisi for writs of prohibition and mandamus discharged.