R v Commonwealth Court of Conciliation and Arbitration and Merchant Service Guild of Australasia [1912] HCA 85

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CES tell 586 HIGH COURT (1912.

(HIGH COURT OF AUSTRALIA.]

THE KING AGAINST

THE COMMONWEALTH COURT OF CONCILIATION AND ARBITRATION anp THE MERCHANT SERVICE GUILD OF AUSTRALASIA.

Ex parte ALLEN TAYLOR & COMPANY LIMITED AND OTHERS.

Ex parte THE GULF STEAMSHIP COMPANY LIMITED AND OTHERS.

Ex parte WILLIAM HOLYMAN & SONS LIMITED AND

OTHERS.

H.C. or A. Industrial Arbitration—' Industrial dispute," meaning of—Demand and refusal— 1912. Absence of prior discontent—Jurisdiction of Commonwealth Court of Concilia- " tion and Arbitration—Single dispute—Inter-State and Intra-State shipping—

Sypney, Award—Conditions of employment—Leave of absence on full pay—The Con-

Nov. 25, 26, stitution (63 & 64 Vict. c. 12), sec. 51 (wazv.), 27, 28, 29;

Dec. 13. 'The term " industrial dispute" in sec. 51 (xxxv.) of the Constitution con-

ee notes a real and substantial difference having some element of persistency, Barton aid" and likely, if not adjusted, to endanger the industrial peace of the community. Tsaacs JJ.

Such a dispute is not created by a mere formal demand and a formal refusal.

A letter was sent by the secretary of an association consisting of masters and officers of ships employed by shipowners in the several States to each of those owners, 83 in number, stating that he was instructed to request that within 15 days certain specified terms and conditions of employment should be the subject of an industrial agreement between the particular employer and the association, which should be filed under the Commonwealth Concilia-

15 C.L.R.] OF , AUSTRALIA.

sistent with any award or industrial agreement, he demanded a variation of such award or agreement ; that, failing the consent of all the employers to be bound in an industrial agreement in the terms aforesaid, at the expiration of 15 days the association had been requested to submit 'the dispute" by _ plaint to the Commonwealth Court of Conciliation and Arbitration, and that, should it then be found that that Court was unable to make a settlement, "your employés will themselves take action to compel you and all other employers to observe " the specified conditions ; and also stating that should you feel that any good purpose would be served by your convening, within the period mentioned, a conference representative of the whole of the employers in the shipping industry, I am instructed to state that your employés ask for such conference and the representatives of your employés will be pleased to attend thereon." There was no prior knowledge by, or communication to, the employers of any discontent on the part of their masters or officers or any of them with the conditions of their employment. Some of the employers answered the letter, but none of the demands were acceded to by any of the employers. Six weeks afterwards a plaint was filed in the Commonwealth Court of Conciliation and Arbitration claiming the terms and conditions above mentioned, and an award was made by the Court.