Melbourne & Metropolitan Tramways Board v Horan [1967] HCA 1

High Court of Australia Barwick C.J. McTiernan, Taylor, Menzies and Owen JJ. Melbourne & Metropolitan Tramways Board v Horan [1967] HCA 1

ORDER Motion for writ of prohibition dismissed with costs, including costs of the ex parte application.

Cur. adv. vult.

The following written judgments were delivered:

March 3 Barwick C.J.

The applicant seeks prohibition to a Conciliation Commissioner to prevent further action upon an interim award made by him in purported settlement of what the applicant concedes was an industrial dispute extending beyond the limits of one State, the disputants being the respondent union on the one hand and the State transport authorities of New South Wales, Victoria, South Australia and Tasmania on the other. Prior proceedings between these parties both before the respondent Commissioner and before this Court are recounted by my brother Taylor in his reasons for judgment which I have had the advantage of reading. It is clear, to my mind, from the reports of those proceedings that the respondent union has heretofore sought either itself to participate in the management of the transport systems of those authorities, or to have the Conciliation Commissioner placed in a position to do so. The area of management has concerned the conversion of transport services from one manner of operation to another. The respondent union has tried to put itself into industrial dispute with the transport authorities as to whether such a conversion should take place without its assent or without the concurrence of a Conciliation Commissioner. It has been decided that these endeavours of the respondent union have been ineffective, ultimately on the ground that the subject matter of the intended dispute was not industrial.

The present application arises out of a further attempt by the respondent union to place itself in dispute with those transport authorities to such an extent that an award could be made in substantially the same terms as those formerly made by the respondent Commissioner and the subject of prohibition by this Court. My brother Taylor sets out in his reasons the precise terms of the latest written demand by the respondent union, the interim award made by the respondent Commissioner and the facts and circumstances relevant to the consideration of the question whether that award should be prohibited and I have no need to set them out.

A demand that the driver of a public passenger vehicle shall always be assisted by a conductor when operating the vehicle, if the union genuinely desired that it should be granted, could give rise to an industrial dispute. It would do so, in my opinion, because the assistance of the conductor bore upon the nature and extent of the effort required by the driver to perform the work of driving the vehicle, work provided for him by the employer and because of the universality of the demand. But, having regard to the antecedent efforts of the respondent union to prevent the changeover from what has been described as a "two-man" bus or tram service to a "one-man" bus or tram service and to the facts and figures to which my brother Taylor has called attention, a real question arises in my mind as to whether or not the respondent union genuinely desires that the driver of every bus or tram shall at all times and in all circumstances be assisted by a conductor. It may be that whilst not so desiring, the union has merely cast its written demand into the form which it takes simply in an endeavour to attract the jurisdiction of the Conciliation Commissioner, not intending to ask him to make an award in the terms of the demand. If I had not formed a firm view as to the invalidity of the interim award which the respondent Commissioner has made, I would have wished to afford the respondent union an opportunity, which its counsel in argument sought, to convince the Court that the respondent union did genuinely desire the acceptance by the four transport authorities of the precise demand it lately made upon them. Personally I am far from convinced of that proposition as the evidence now stands and I would not be prepared to act in a matter which goes to the constitutional validity of an industrial award merely upon the applicant's concession that an industrial dispute does exist. However, because of my conclusion as to the terms of the interim award, I am prepared to assume that the failure of the four State transport authorities to concede the written demand of the union gave rise to a genuine interstate industrial dispute in terms of that demand.

The interim award, however, was not made in those terms. In fact the Conciliation Commissioner was not asked to do so. He was requested by the respondent union to make an award in terms of the interim award: and he did so. In a single provision, though expressed as a general prohibition with a proviso, the respondent Commissioner made an award that an employee might not be required to drive a bus without the assistance of a conductor when or where or in circumstances under which an employee was not already required to drive such a vehicle without such assistance.

The decision by the transport authorities as to the times when, the places where and the circumstances under which drivers should be required to drive without a conductor has not been, in my opinion, a decision as to the relations of employer and employee but has been a decision solely as to a matter of management in the conduct of a public transport service. Whilst an unqualified requirement in an award that a driver be always assisted by a conductor might in appropriate circumstances be a provision as to an industrial matter, it seems to me that a qualified requirement of that kind will only be such a provision if it can be seen that the qualification itself relates to industrial conditions. It does not follow, in my opinion, that, because in the circumstances a total prohibition upon some activity of an employee can be the regulation of an industrial matter, a conditional prohibition in the same circumstances must be so. The question must be whether the award, or the provision of the award, under challenge is as a whole dealing with the relations of employer and employees, not as a matter of mere verbal expression, but in point of substance.

Here the terms of the qualification of the general prohibition upon the employer make it plain to my mind that the award is not related to the working conditions of the driver though doubtless compliance with the award would indirectly affect those conditions. The managerial consideration whether or not some extension should be made to the times when, or the places where or the circumstances under which the driver without a conductor shall be employed is the matter upon which the prohibition operates. It is not merely that the effect of the interim award will be that no further conversion of transport services from one form of operation to another will take place: in terms, the award conditions its operation upon managerial and not upon industrial considerations. It is therefore, in my opinion, not an award which has confined itself to the industrial dispute which I have assumed and which on my assumption related to working conditions in the employment which the employer has provided. It does not, in my opinion, make any provision as to those working conditions. It does in terms seek to settle a different dispute, namely, a dispute as to whether or not the occasions on which as a matter of management a public transport service of a particular kind is provided shall be multiplied.

For these reasons, and for those expressed by my brother Taylor with whose judgment I agree, I would grant the application and order that further proceedings upon the interim award be prohibited.

McTiernan and Menzies JJ.

The facts of this matter have been outlined by other members of the Court. Upon those facts we have, for reasons which we will proceed to state, come to the conclusion that the application for prohibition should be refused.

The past history of the endeavours of the Australian Tramway and Motor Omnibus Employees' Association to obtain an award relating to the manning of buses by one or two men, which would bind The Melbourne and Metropolitan Tramways Board, could indicate that what the association presently sought was nothing more than to prohibit the Board from introducing one-man buses upon the Melbourne routes now served by buses staffed by two men. The proviso to the award now challenged, which was framed by the association and submitted to the Conciliation Commission, also suggests that this award is concerned with the same problem. It has, however, been established that a dispute as to this matter would not be an industrial dispute: Reg. v. Commonwealth Conciliation and Arbitration Commission; Ex parte The Melbourne and Metropolitan Tramways Board [1] . Furthermore, a simple dispute about the manning of buses upon Melbourne routes would not be a dispute extending beyond the limits of one State. In making the demand which it did, the association was, of course, taking advantage of the doctrine that a refusal or non-compliance by employers in two or more States of a paper demand by an organization of employees relating to an industrial matter creates an industrial dispute. The demand here was made by letter and was that four transport authorities in Victoria, South Australia, New South Wales and Tasmania respectively should observe, inter alia, the condition that an employee shall not be required to drive a bus without the assistance of a conductor. Having regard to the facts set out by Taylor J. relating to the manning of buses operated by the four authorities, it was obvious that this demand would not be granted. The association's first contention is, however, that nevertheless, upon non-acceptance within the time limited in the demand for acceptance, an industrial dispute extending beyond the limits of one State arose.

1. (1966) 115 C.L.R. 443.

Notwithstanding the often-repeated formula that it is only a genuine demand that can give rise to an industrial dispute falling within the jurisdiction of the Commission and notwithstanding our conviction that the immediate object of the association was simply to obtain an award rendering it impossible for the Board to effect a changeover upon its routes serviced by buses manned by two men, we do not regard ourselves as at liberty to regard the immediate object of the association's demand as its only purpose so that, as and when the demand was made, it was not a genuine demand relating to an industrial matter. On paper, the association did demand a general prohibition against requiring an employee to drive a bus without the assistance of a conductor. This was, upon its face, a demand concerning an industrial matter and, prima facie at least, the non-acceptance of that demand by employers in the four States gave rise to an industrial dispute extending beyond the limits of one State: see Reg. v. Commonwealth Conciliation and Arbitration Commission; Ex parte The Melbourne and Metropolitan Tramways Board [1] , per Barwick C.J. Only if we were satisfied that the demand was not genuine in the sense that what was demanded was not what was wanted would we be justified in regarding what was, prima facie, an industrial dispute as a dispute of a different character. Against reaching such a conclusion there are considerations (1) that the association's long-term policy was no doubt to have all buses manned by two men; (2) that consistently with this policy the association could genuinely demand more than it knew could reasonably be granted immediately; and (3) that if the association's only demand was that the authorities should not provide different services from those presently provided, it was, as the association knew full well, an abortive demand that could not give rise to an industrial dispute. Such a futility should not be imputed to the association. We have come to the conclusion, therefore, that the demand and its non-acceptance did give rise to a dispute within the jurisdiction of the Commonwealth Conciliation and Arbitration Commission.

1. (1966) 115 C.L.R. 443, at p. 450.

The next problem is whether the award under challenge was made in settlement of the industrial dispute which we find had arisen. Had the award been made without the proviso, it would have been an award of what had been demanded but not yielded and we would have seen no reason for regarding it as otherwise than in settlement of the industrial dispute which had arisen. The award, however, went further and the problem which faces us here cannot be solved simply by reflecting that a valid—albeit an industrially impossible—determination of the dispute would have been made by an award in the terms of the association's demand without the proviso which is in fact part of the award which was made. The question now is whether what has been awarded is something which was not demanded and in answering this question it is the paper demand upon which attention must be concentrated. That demand, as we have decided, was one for a condition affecting an industrial matter and we have no doubt that the dispute to which it gave rise could only be settled by an award affecting an industrial matter. An industrial dispute cannot be settled by a non-industrial award. For instance, an industrial dispute about better wages and conditions, arising from a demand based upon a comparison between what employers were making and what their workers were receiving, could not be settled by an award reducing the prices of goods or restricting production. The question here may, therefore, be reduced to this: does the award in question affect an industrial matter which was the subject of the industrial dispute? The dispute was whether any employee may be required to drive a bus at any time and in any place without the assistance of a conductor. The award is that, except in the particular circumstances in which some employee did at the date of the award drive a bus without the assistance of a conductor, no employer shall require any employee to do so. Our conclusion is that the award thus made was within the ambit of the dispute which had arisen. It provided, in effect, that except in particular circumstances what was demanded should be awarded and it is not, we think, of decisive importance that the excepted circumstances did not fall within the category of industrial matters. If the proper conclusion were that the award, in substance, directed that no service being provided to the public by an authority operated by buses manned by two men should be converted into a service operated by buses manned by one man, the award would be invalid as one falling outside the terms of the industrial dispute. If, however, the award is properly to be regarded as requiring the driver of a bus to be assisted by a conductor except in particular circumstances—as we think it is—then that award would not lose its prima facie validity because the intended consequence of its being made would be that the authorities bound cannot convert any two-man bus service into a one-man bus service or start a new one-man bus service.

Because we are satisfied that there was an industrial dispute and because of the character which we have attributed to the award, we consider that this application should be refused.

Taylor J.

In these proceedings the prosecutor seeks a writ of prohibition restraining the Commonwealth Conciliation and Arbitration Commission and the respondent association from further proceeding with or upon an award, entitled The Australian Omnibus Interim Award, 1966, which the Commission purported to make on 29th August 1966. The underlying bone of contention between the prosecutor and the association is the completion of the establishment of so-called one-man omnibus routes in Melbourne and the present proceedings, it may be said, are concerned with another chapter in a disagreement which, in some form or other, has been before this Court on other occasions.

In Reg. v. Commonwealth Conciliation and Arbitration Commission; Ex parte The Melbourne and Metropolitan Tramways Board [1] prohibition went in respect of an award which provided that notwithstanding anything contained in the awards known as The New South Wales Government Ombibus Traffic Employees Award, 1963 and The Tramway and Employees (Melbourne) Interim Award, 1958, the employers respondents to such awards should not "without the consent of The Australian Tramway and Motor Omnibus Employees' Association or by order of the Commission require an employee to operate on his own an omnibus on a route on which on or after the 4th March 1965, tramcars or omnibuses had been operated by two or more employees". Later, in proceedings between the same parties [2] it was held that a demand in a log of claims that no two-man tram or bus service should be converted to one-man operation did not directly involve the relationship of employer and employee and, therefore, was not a demand which could give rise to an industrial dispute within the meaning of the Conciliation and Arbitration Act 1904-1964. Following this case a further demand was made by the respondent association on 26th May, 1966. It was made by letters addressed to the respondent Board and to the Municipal Tramways Trust, Adelaide, The Commissioner for Government Transport, New South Wales, and The Metropolitan Transport Trust, Tasmania, and it demanded of those employers that the following conditions be observed:

(1) An employee shall not be required to drive a bus without the assistance of a conductor, and

(2) An employee shall not be required to drive a bus whilst any passenger is standing.

There was a failure to agree to these demands and, thereafter, the respondent association sought an award based upon the dispute which was said to have arisen as the result of the rejection of the demand set out in the paragraph of the letter numbered one. Argument took place before the Commissioner and on 29th August he purported to make an award the material parts of which are as follows: Title.

This award shall be known as "The Australian Omnibus Interim Award, 1966."

Parties Bound.

This award shall be binding upon The Australian Tramway and Motor Omnibus Employees' Association (hereinafter referred to as the Association) and the members thereof and upon the Commissioner for Government Transport, New South Wales; the Melbourne and Metropolitan Tramways Board and the Municipal Tramways Trust, Adelaide (hereinafter referred to as "the employers") in respect of all employees working on buses in the bus services of the employers whether members of the Association or not.

Assistance of Conductor.

Notwithstanding anything contained in the awards known as "The New South Wales Government Omnibus Traffic Employees Award, 1963"; "The Tramways Employees (Melbourne) Interim Award, 1958"; "The South Australian Tramway and Omnibus Award, 1963"; and "The Tramways and Motor Omnibus Employees Traffic Margins Award, 1965" an employee shall not be required to drive a bus without the assistance of a conductor. Provided that this award shall not affect the right of an employer to require an employee to drive a bus without the assistance of a conductor at a time when and in a locality where and in circumstances under which buses were so driven before the date of this award.

The award was framed in accordance with a draft prepared by the respondent association's advisers which was produced to the Commission at the hearing. 1. (1965) 113 C.L.R. 228. 2. (1966) 115 C.L.R. 443.

The evidence before this Court shows that in New South Wales the Commissioner for Government Transport operates, in Sydney, a total annual mileage of omnibus routes of approximately thirty-nine million miles, of which all routes are at some times "operated on by omnibuses when staffed with only one man". In South Australia the Municipal Tramways Trust operates no omnibus routes staffed at all times by two men but only one route staffed at all times by only one man. The Metropolitan Transport Trust in Tasmania operates no omnibus services staffed at any time by more than one man. In Melbourne the respondent Board operates a total annual mileage of omnibus routes of approximately 6.94 million miles and it appears that for some years all the omnibus services operated by the Board, except on two routes, have been operated by omnibuses staffed at all times by only one man. It may be observed that the principal award, which is binding on the respondent Board, contemplates that buses may be manned by one man only and, by cl. 1 of Pt III thereof, it prescribes a special wages margin for the classification—"One-man bus operator". But no doubt the association was at liberty to initiate a dispute as to whether buses should be operated by one man alone, or, a dispute concerning the terms and conditions upon which the Board should be permitted to operate one-man buses. Disputes as to either of these matters would, in general, fall within the concept of "industrial matters" and would be industrial disputes.

However, the demand made by the association was not in any way concerned with the terms of employment of one-man bus operators or with the conditions in which this form of employment should be permitted. It simply demanded that "an employee shall not be required to drive a bus without the assistance of a conductor" in any circumstances. I add "in any circumstances" because the prohibition was sought to be imposed regardless of any terms or conditions which might be thought to be appropriate to be prescribed in relation to the operation of one-man buses.

Having regard to the history of the matter and to the form of the draft award which was produced before the Commissioner one might take leave to doubt the sincerity of the association in making such a demand. But I am prepared to assume for the purposes of the case that the failure of the employers concerned to accede to the demand gave rise to an industrial dispute of the precise nature described. What was then the function of the Commissioner? If no agreement was arrived at it was clearly his function, subject to the Act, to determine the dispute (s. 32) and for this purpose he was authorized by the Act to make an award. But his authority to make an award in settlement of an industrial dispute is not without limits. His award "cannot give a form of relief that is not relevant to a matter in dispute, that is not reasonably incidental or appropriate to the settlement of that part of the dispute and that has no natural or rational tendency to settle the particular question in dispute" (Reg. v. Galvin; Ex parte Amalgamated Engineering Union [1] and Charles Marshall Pty. Ltd. v. Collins [2] ). Nor, of course, can an award deal with a matter that is not within the ambit of the dispute.

1. (1952) 86 C.L.R. 34, at p. 40. 2. [1957] A.C. 274, at p. 285.

The earlier case between the same parties, which was reported [1] , contains a statement of our reasons for thinking that a demand of the character in question in that case was not a dispute as to an industrial matter within the meaning of the Act and that case is of some assistance in solving the question whether the award now in question was validly made. The resolution of this question requires some examination of the statutory provision that "if no agreement between the parties as to an industrial dispute is arrived at, the Commission shall, subject to this Act, determine the dispute". What I understand that provision to mean is that if employers and an organization of employees are in dispute as to any matter comprised in the definition of "industrial matters" the Commission, in its capacity as arbitrator, may make an award prescribing, in relation to that matter, an appropriate rule of conduct to be observed as between employer and employee. But this, it seems to me, is just what the award under attack does not do. It is true that the award stipulates that an employee shall not be required to drive a bus without the assistance of a conductor and it seems that if the award stopped at that point it would be such a prescription. But the award does not stop there; it is not to affect the right of an employer "to require an employee to drive a bus without the assistance of a conductor at a time when and in a locality where and in circumstances under which buses were so driven before the date" of the award. The problem cannot, in my view, be solved by saying that an express prohibition would constitute a valid prescription and, therefore, a valid award, and that the subsequent relaxation of the prohibition in the manner indicated cannot affect its validity. The questions which must be asked are what is the substance of the award and how does it operate in relation to some "industrial matter" as defined. It was conceded by counsel for the respondent—and in my view rightly conceded—that there would be no difference in substance between the award now in question and an award which provided that an employee should not be required to drive a bus without the assistance of a conductor at any time when or in any locality or under any circumstances where an employee is not at present required to drive without the assistance of the conductor. This, in my view, is the substance of the award in question and it was clearly invalid. So, also, would an award be, in the present circumstances, if it were made in terms prohibiting the operation of one-man buses, unless the driver of the bus was paid a special rate of wages, for the log did not give rise to a dispute concerning what wages should be paid to one-man bus drivers; the dispute was simply that an employee should not be required to perform these duties at all. Perhaps, it is unnecessary to add that an award prohibiting the operation of one-man buses unless a condition was observed which had no bearing on the employer/employee relationship would also be invalid because it would not be concerned with any industrial matter in dispute. It should be further pointed out that no claim had been made concerning the conditions under which employees might be required to perform these duties; it was, I reiterate, simply a claim that an employee should not be required to perform these duties and, of course, this was the only claim which the prosecutor had before it for consideration and the only claim which had been rejected. It may be, perhaps—though the point was not argued and need not, in the circumstances of the case, be considered—that within the ambit of the dispute, an award might have been made prescribing the physical conditions under which one-man buses might be operated but this is not what the award did. It simply left the employer free to operate one-man buses "at a time when or in a locality where and in circumstances under which" (whatever that expression may mean) buses were so driven before the date of the award and denied the right to operate one-man buses where and when and in circumstances in which they had not theretofore been operated and, simply, on the ground that they had not been so operated. Consequently, for example, a change in or an extension of any particular route or an alteration of the timetable in any particular case would bring the prohibition into operation and it can be seen clearly enough that its operation is not conditioned, and was not intended to be conditioned, upon any circumstance concerned with the relations inter se of the employers bound by the award and their employees. In other words, under the award as made, it permitted the operation in some cases of one-man buses and, in other cases, it prohibited such operation. But the distinguishing criteria were not, in any way, related to any matter or thing affecting or relating to the work to be performed. It seems to me—and this view is confirmed by a reading of the transcript—that what the Commissioner did, and intended to do, was simply to settle a dispute that no further one-man buses should be introduced which, according to our view in the case between the said parties, reported [1] , was held not to be a dispute as to an industrial matter.

1. (1966) 115 C.L.R. 443. 2. (1966) 115 C.L.R. 443.

In my opinion there should be a rule absolute for prohibition.

Owen J.

The applicant Board seeks an order nisi calling upon a Conciliation Commissioner, Mr. Horan, and the association (the union) to show cause why a writ of prohibition should not be granted to restrain further proceedings upon an award made by the Commissioner on 23rd March 1966. The award purported to be binding upon the union and the applicant Board, along with certain other public transport authorities in New South Wales and Adelaide, and to be a variation of earlier awards made in 1963 and 1965. It provided that:

An employee shall not be required to drive a bus without the assistance of a conductor. Provided that this award shall not affect the right of an employer to require an employee to drive a bus without the assistance of a conductor at a time when and in a locality where and in circumstances under which buses were so driven before the date of the award. The application for the order nisi was made to the Full Court, the applicant and the union appeared by counsel and full argument was heard as though the application had been one to grant an order absolute.

The ground on which the order is sought is that the award did not relate to an industrial matter and was therefore made without jurisdiction.

The evidence shows that a letter of demand, dated 25th May 1966, was served by the union on the Board and on public transport authorities concerned with the running of buses in New South Wales, South Australia and Tasmania, in which it was claimed that:

(1) An employee shall not be required to drive a bus without the assistance of a conductor.

(2) An employee shall not be required to drive a bus whilst any passenger is standing.

The letter went on to require the addressees to indicate within seven days whether they were prepared to comply with these demands and to state that failure to do so would be treated as a refusal. Following a notification given to the Industrial Registrar of the Commonwealth Conciliation and Arbitration Commission under s. 28 of the Conciliation and Arbitration Act, all the parties concerned appeared before Mr. Commissioner Horan and the representative of each of the transport authorities informed him that the demands were unacceptable. The Commissioner thereupon found that an industrial dispute existed between the union and the various transport authorities and, with the assent of those authorities and at the request of counsel representing the union, ordered the parties to confer with a Conciliation Commissioner. This conference took place but the parties were unable to resolve their differences and the matter again came before Mr. Commissioner Horan. Counsel for the union then informed him that his client sought an interim award for a period of three months in terms of the first clause of the letter of demand and suggested that a proviso be added which would permit the authorities to continue to require drivers to drive buses without the assistance of a conductor on routes and at times and in circumstances where this was already being done. In the result, an award was made in the terms which I have set out earlier.

Before us counsel for the applicant conceded—and I think rightly conceded—that the letter of demand and the refusal to concede the claims put forward in it gave rise to a genuine industrial dispute extending beyond the limits of any one State but contended, as I understood his argument, that the award was not made in settlement of that dispute because the addition of the proviso which counsel for the union had asked to be included turned the demand into one concerning the services to be provided by the transport authorities to the public and "the service to be provided to the public is not in itself a matter "pertaining to the relations of employers and employees" ", to use the words of Taylor and Menzies JJ. in Reg. v. Commonwealth Conciliation and Arbitration Commission; Ex parte Melbourne and Metropolitan Tramways Board [1] . In that case the demand of the union was that "No two-man tram or bus services shall be converted to one-man operation" and it was held that the demand was in terms directed only to the form of transport service which the authority should provide to the public. But as the Chief Justice said [2] , "Such a demand, to my mind, is different in kind from a demand that an employee-driver of a bus shall, when working on a bus, be assisted by a conductor. The former, it seems to me, deals only with the nature of the work which the employer shall provide, whilst the latter does deal with what an employee in doing work which is provided shall be required to do in his employment."

1. (1966) 115 C.L.R. 443, at p. 456. 2. (1966) 115 C.L.R., at p. 452.

In my opinion, the demand in the present case, including the proviso which, at the hearing before the Commissioner the union sought to have added to the original claim and which was in fact put into the award, fell into the category of an industrial matter. It was a matter affecting or relating to work done or to be done by employees of the applicant and the award was made in settlement of the dispute about that matter. I cannot agree that the addition of the proviso which created exceptions to the broad terms of the prohibition which preceded it turned what would, apart from the proviso, plainly have related to an industrial matter into one which did not so relate. That one result of the award may be to compel the applicant to provide a transport service to the public different from that which it has provided in the past or may wish to provide in the future may be conceded but the same may be said of many award provisions which no one would ever think were beyond power.

I would dismiss the application.