LWB Murray McCarthy

Week 6
INDUSTRIAL DISPUTES POWER

ELEMENT 1: Head of Power

s.51 The Parliament [has] power, subject to this Constitution, to make laws for the peace, order and good
government of the Cth with respect to:
(xxxv) conciliation and arbitration for the prevention and settlement of industrial disputes extending
beyond the limits of any one State.

The Cth industrial disputes power:

Can only set up conciliation and arbitration system, not regulate employer-employee worker relations
directly.
HOWEVER, it can regulate employer-worker relations under OTHER powers. Eg Corps Power, and ILO
Conventions
system itself has to wait for a dispute to be brought to it, so IRC can make an award
dispute has to extend beyond a State

Conciliation is the coming together of the parties for the discussion of questions with a view to amicable
settlement
Arbitration includes the settlement of the dispute by a tribunal which included disputing employers and
disputing employees as well as an independent umpire.

ELEMENT 2: Are the Disputants Parties to the Proceedings

Conciliation and arbitration only binds the parties to the dispute.

The parties to a matter are ONLY those who initiate it and those whom the former ones serve with
proceedings.
Whybrows Case
- the HC held that a provision creating a common rule throughout an industry (which was binding on all
employers whether disputants or not) under Cth law was invalid b/c it was going outside the notion of the
prevention and settlement of industrial disputes.
- There can be no common rule binding on all employers and employees engaged in the industry
covered by the award.

Qualifications to Whybrow principle

1923
George Hudson
- GH Timber had tried to side step the award by simply incorporating a new coy (still with the name Hudson
in it) and transferring the business and assets to the new coy.
HELD:
- It was valid for Parliament to provide that any assignee of the employers business was still bound by
the award.
- There was a section that purported to catch them and the HC said that that section was valid.

1925
Burwood Cinema
HELD:
- An employer is bound even if some of its workers (or even all of its workers) have said that they are
not in dispute.
- S.51(xxxv) disputes are based on groupism in industry, industrial disputes are collective disputes.

1935
Metal Trades Case
HELD:

Page 1
LWB Murray McCarthy
- Employers are bound as to both Union and non-Union workers (even if it has no Union workers).
- HC explained why the Union workers have a legitimate interest in making claims about the pay rates of
their non-Union rivals (whether the boss can engage non-Unionists at cheaper rates then the effect of the
award can be defeated).
- If one particular coy can engage all its workers at non-Union rates, not only can the effect of the award be
defeated, but it also disadvantages the boss that is paying the award rates.
- Thus the HC highlighted the groupism concept, the fact that the employer can be bound by the award for a
workforce that is all Union, for a workforce that has a mixture of Union and non-Union members, and for a
workforce that has no Union members at all, as long as the employer is a party.
- However, one legalistic point they held was that although non-Union members can get the benefit of the
award in an indirect way, they are not parties to the dispute (they can not bring an action on their own
behalf to enforce an award - the Union can do it or the inspectors given powers under the Act).
- Consequences if you have been a non-Union worker and you have been overworked and underpaid? - join
the Union!

1950
R v. Kelly
- A common rule is still not valid.

BUT NOTE
Re Federated Storeman and Packers Union; Ex parte Wood Lumpers Vic Pty Ltd
- Mason J. suggested that s.51(xxxv) would support legislation to prevent industrial disputes which fall short
of being threatened, impending or probable disputes.
- Deane J. said that s.51(xxxv) could be sufficiently wide and flexible to take account of the close interaction
and interdependence of almost all industrial relations b/w employers and employees in Australia so as to
authorise the conciliation and arbitration to prevent industrial disputes. (i.e. where there is no presence of
pending dispute, if this occurs then it may be impossible and impractical to maintain the restrictive position
endorsed in R v. Kelly).

ELEMENT 3: Is there some involvement of a 3rd party?

Conciliation - requires a 3rd party to be working with the 2 parties to the dispute to get them to agree
on a resolution.
Arbitration - the 3rd party hears the arguments of both sides and then makes a decision.

Railways case
- There was a provision which permitted parties to make their own agreement and register it .
- It was held that because their was not a third party that it was not within the power.

Victoria v Cwth (Industrial Relations Act case)

- The States challenged the Industrial Relations Act 1988 which recognises certified agreements -
parties to an industrial dispute can reach their own agreement, which is then certified by the IRC.
- The Court held this valid under s 51 (xxxv), remarking that, though there were difficulties in
describing the coming together of employers and employees without a third party as
conciliation, the provisions here were ancillary or incidental to the exercise of powers of
conciliation or arbitration.
- The judges didnt overrule Railways case but there is some criticism that what they stated did overrule
the case.

Therefore, as long as a process not involving conciliation and arbitration is clearly designed to be
incidental to the conciliation and arbitration, it is now valid.

ELEMENT 4: Dispute

What is a Dispute for the purposes of s.51(xxxv)

Page 2
LWB Murray McCarthy
A Paper dispute occurs when one party prepares a list of demands and the second party fails to grant the
demands and thereby places the parties in dispute.
Therefore, strikes are NOT disputes but a consequence of a dispute or incidental to a dispute.
The main factor is a disagreement between parties with real grievances behind them: Metal Trades;
Burwood

Is the Grievance Genuine?

The dispute must be genuine and arise out of a genuine claim being resisted and both parties are
pursuing.:
Caledonia Collieries
- Workers were trying to resist a move by the employers to reduce the rates of pay.
- The workers were not looking to increase but simply obtain a Cth award guaranteeing their current rates.
HELD:
- HC held that the workers were not genuinely claiming an increase, it was simply a move to get the workers
out of their previous State award coverage and into a Federal award.

But, as long as workers genuinely want some change, it doesnt matter that the dispute has been
created also to get a Cth award: Dunlop Rubber; Aberdeen Beef.

The HC recognises such ambit claims UNLESS really fanciful and lacking industrial reality.
State Public Service Federation Case (SPSF)
- The SPSF served logs of claims on 3 of the State govts, demanding that all public servants, regardless of
job classification, be paid a weekly wage of $5000 plus an allowance of $2500 for all workers at all levels.
HELD:
- The HC held that this was fanciful and lacking industrial reality and held that it was not a genuine claim.

ELEMENT 5: Ambit of Dispute

Is the Award within the Ambit of the Dispute?

An award must be within the ambit of the Dispute and cant be different in kind or produce a result
substantially different from demand: Crown v Findlay
The ambit is defined by the Log claims and the employers response: R v CCAC
E.g. if you ask for $520 per week, it is clearly illogical for the Commission to grant $550 per week.

Applies to the monetary amounts, and also applies if the Union, having got an award, later tries by
way of variation, to introduce some completely new term that was not asked for in the original award
1st One-Man Bus case
- ATMOEA had got an industrial award from the 1960s.
- No mention in the award of any requirement that a bus must have a conductor.
- Various transport authorities decided that a conductor was not needed, the driver could collect the money
themselves.
- When the Melbourne Tramways Board tried to bring this in, the Unions first response was to attempt to
make a variation to the award.
- The MTB went to the HC and obtained a declaration that this was not within the Commissions jurisdiction
b/c the original claims in the dispute which created the award had no mention of the no. in the crew.
- So, if something arises that is not in the first dispute, must start a new dispute all over again.

The ambit doctrine is qualified - the award is not limited by the literal terms of the log of claims, it
can include clauses which are a reasonable incident of the settlement of the dispute:
1951 Metal Trades case
- The Union had asked for a shorter standard working week and in response to that, the Commission had
granted it, but had also put in amended provisions for overtime.

Page 3
LWB Murray McCarthy
- This was challenged as not being w/i the ambit of the claim, but was held to be a reasonable incident of the
settlement of dispute.

s.120 of the Act states that the IRC is not limited by the demands of the parties. This has not yet been
challenged, but previous decisions about the ambit may suggest that this is pretty debatable.

ELEMENT 6: Industrial Dispute

A) Need there be an industry?
For many years the High Court imposed the requirement that workers be involved in "industry"
before they could have an industrial dispute.
Industrial dispute is a composite term to be given its everyday meaning - disputes between two or
more parties about the terms and conditions of work. CYSS Caset
The principal group of workers kept out of the Commission's power by this interpretation were
non-"industrial" State government workers.
However, the High Court unanimously removed this separate requirement for an "industry" in the
CYSS case
BUT remember it cannot stop the State govts from retrenching their workers (b/c they must be able to
control their budgets) and also cannot apply to those workers for State govts who are up at the top policy
end, b/c that would limit the existence of the State govts as independent elements of the federation: Public
Service Case (limits from class on immunities).

B) Industrial Matter
The Act has long defined industrial dispute as a dispute as a dispute about industrial matters.
The definition of industrial matter in the Act relates to the relationship b/w employer and
employee.
BUT from the Alcan Australia Case, the HC hinted (in previous cases) that the constitutional concept of
an industrial dispute might be much broader than a definition of industrial matters.

Metal Trades Employers Assoc. v. Amalgamated Engineering Union

- HC held that a dispute b/w a Union and employers involved in the same industry as the Union but not
employing any members of the Union, as to the conditions upon which the employers should employ
non-union labour was an industrial dispute within s.51(xxxv).
- The employment of non-union labour at lower rates of pay would diminish employment opportunities for
Union labour and would place considerable pressure on the rates paid to Union labour.

One-Man Bus Case

- The Union asked for a term that a bus should not be sent out with a crew of less than two.
- The Ct ruled partly by reference to the Constitution and partly by reference to the definition in the Act, that
this was not really an industrial matter (b/c industrial matters are things about the relation b/w the boss and
impliedly the individual worker, and how many workers the boss chooses to employ is not actually relating
to the relationship b/w the boss and any worker.
- (The Union got around this by redrafting the claim.)

ELEMENT 6: Dispute extends beyond a State

The object of s.51(xxxv) is industrial disputes and it is the dispute not the industry or the
disputants which must extend beyond the limits of any one State. Jumbunna Coal

S.51(xxxv) requires that the industrial dispute must extend beyond the limits of any one State.
BLF Case
- There was not originally a national BLF (Builders Labourers Federation). The Builders and Labourers had
formed themselves into separate Unions in each of the States (which subsequently formed the BLF).

Page 4
LWB Murray McCarthy
- The BLF served the same log of claims on builders in several States.
- The builders said that this was not a dispute extending beyond the limits of any one State. They said that
that term was put in for things such as shipping disputes or mining disputes - the building industry is one in
which each workplace has a separate geographical location, so when serving the log of claims it is not a
dispute extending beyond one State, it is six separate disputes in six separate States.
Held:
- This argument was rejected and the HC held that if its the same paper dispute and it extends out of one
State, then the dispute extends beyond one State. All that a Union has to do is make demands of
bosses in more than one State and this is sufficient to constitute a dispute extending beyond one
State.

The demands dont have to be identical in each State, as long as there is some community of interest
b/w the workers or b/w the employers: BHP Case;
Aberdeen Beef
- A case about meat-works and abattoirs where it involved a no. of different meat-works and abattoirs
(killing of beef and pigs) and different processes and job classifications b/w States.
- The Union was serving different logs of claims on different employees, depending on what State they were
in and what meat was being processed.
- The employers objected saying that it wasnt the one dispute extending, it was several separate disputes.
Held:
- HC held that it is the one dispute extending, it doesnt have to be the same dispute or log of claims as long
as there is a community of interest. (They were all meat-workers who were members of the same Union).

However, if a strike starts in one State and extends to another, that is not an industrial dispute
extending beyond the limits of any one State. This is because if the strike in the second State is just in
sympathy for those in another State, those workers in the second State are not making any demands they are
just supporting the other workers: Caledonian Collieries.

As long as there is a dispute extending beyond one State, the IRC can deal with it by separate awards for
groups of bosses who may only be in one State

Once the award has been made (as a result of a dispute extending beyond a State), it may be varied (but
must be in the ambit of the first dispute) as a result of a wholly intra-State dispute b/w parties bound by it:
SEC Case

Extension beyond any one State of course includes extension into a Territory or out of Australia: Foster; ex
parte E & A SS

Page 5