HIGH COURT OF AUSTRALIA

                                      Metal Trades Employers Association

                                                           Vs.

                                        Amalgamated Engineering Union

                        (Latham C.J., Rich, Starke, Dixon, Evatt and McTiernan JJ.)

                                                 17 December 1935

Latham C.J.

The Commonwealth Court of Conciliation and Arbitration has jurisdiction to settle industrial
disputes by an award (Commonwealth Conciliation and Arbitration Act 1904-1934, secs. 18, 19, 24
(2)). Sec. 4 of the Act provides that "industrial dispute" means "an industrial dispute extending
beyond the limits of any one State and includes--(i.) any dispute as to industrial matters." The same
section provides that "industrial matters" includes (inter alia) "all matters relating to work ... wages
... rights, or duties of employers or employees ... the relations of employers and employees ... the
employment ... of persons ... being or not being members of any organization ... and all questions of
what is fair and right in relation to any industrial matter having regard to the interests of the persons
immediately concerned and of society as a whole." The terms of employment of persons in industry
constitute an industrial matter and there may be an industrial dispute as to such terms between such
persons and their own employers.

The first question which arises in this matter is whether there may be an industrial dispute between
employees (A) and employers (B) as to terms of employment of other employees (C) in the same
industry in which employees (A) are engaged in cases where none of the employees (A) are
themselves employed by some or even by any of the employers (B).

A dispute exists only between the disputants. Generally and naturally it relates to their mutual
industrial relations. But there is no reason why it should not relate to the industrial relations between
one set of the disputants and third persons. In actual experience preference to unionists is an
industrial matter which is a common source of industrial disputes between unionists and their
employers. In such disputes the contention of the disputants essentially relates to the employment or
non-employment by one set of disputants of third persons who are not parties to the dispute. Such a
matter is of great industrial importance alike to unionists and non-unionists (as well as to
employers), but only unionists, in the case supposed, are parties to the dispute on the side of the
employees. There does not appear to be any reason in principle for denying that the terms upon
which non-unionists may be employed may be as much the subject matter of an industrial dispute as
the question whether non-unionists shall be employed at all.

Unionists may be concerned and apprehensive with respect to any matters which may affect the
terms upon which their employers can afford to employ them. If other employers are at liberty to
employ non-unionists at lower rates of wages, the competitive efficiency of employers employing
unionists may be seriously prejudiced, and the continued employment of the unionists may be
jeopardized. Employers of unionists may take the same view. It is to be expected that the opinions
of those engaged in industry will vary upon this subject. Some will regard it as a matter of principle,
others as a matter of interest. Divergence of views is well illustrated in this very case. Four unions
have definitely claimed that employers should give to non-unionists the same conditions as to
unionists, while two unions have appeared before the Court to oppose that claim. Employers in New
South Wales, Victoria and Tasmania argued in the same way as the four unions mentioned, while
employers in South Australia supported the arguments of the two opposing unions. The question of
the terms upon which non-unionists may be employed can hardly be denied to be industrial in
character, and it is obvious that it may become the subject of a dispute--between employers and
employees, or between employers and employers, or between employees and employees.

The question which arises cannot however be decided merely by determining that the subject matter
of the claim made may be the subject of an industrial dispute. The Act authorizes the settlement of
industrial disputes only by conciliation or by arbitration. Conciliation may bring about an
agreement: arbitration may result in an award. An agreement between two persons may produce an
effect upon third persons, but it can impose duties or confer rights only upon those who make the
agreement. Similarly an award may produce an effect upon third persons, but it can directly affect
the legal relations only of those who were parties to the arbitration proceedings of which it is the
result. In industrial arbitration the conception of "parties" is extended by a doctrine of representation
which is in itself associated with the idea of "industrial disputes." Industrial disputes are essentially
group contests--there is always an industrial group on at least one side. A claim of an individual
employee against his employer is not in itself an industrial dispute. If it professes to be based upon
an existing right (as, for example, a contract of employment, or an award (see Mallinson v. Scottish
Australian Investment Co. Ltd.[1]) such a claim may give rise to litigation in the civil Courts--but it
is not an industrial dispute. If a claim is made by an individual employee for some improvement in
his pay or conditions of employment, the refusal of the claim by his employer may result in a
personal dispute, but this in itself would not be an industrial dispute. One necessary element of an
industrial dispute, as distinguished from other disputes, is the circumstance that a demand is made
by or upon a group of employers or employees. Thus an industrial organization is engaged in such a
dispute when it makes what may be called an industrial demand on behalf of its members, present
and future. In a forensic sense the organization is the party to the dispute, though it asks for nothing
for itself as an organization. In another sense, the existing members of the organization are the
parties to the dispute. The object of the dispute is to obtain rights for them or to cause them to
become subject to obligations. The future members of the organization, though not in existence as
such, are also regarded as represented in the dispute by the organization (Burwood Cinema Ltd. v.
Australian Theatrical and Amusement Employees' Association[2]).

The conception of industrial arbitration is closely similar in these respects to that of an industrial
dispute. The parties to the proceedings always include some group which makes or resists a demand
for an award which will impose duties or confer rights upon or in relation to the members of the
group. This conception underlies the provision in sec. 29 of the Act that members of an organization
shall be bound by an award, though they have not individually taken any part in the arbitration
proceedings. Any statement that an industrial award binds only disputants who are parties to the
arbitration proceedings must be understood in the extended sense which has been illustrated by what
has just been said. It is unnecessary to give any further illustration of the principle that even the
strictly legal effect of an industrial award extends beyond the area of the rights and duties of those
natural persons or juristic persons (including industrial organizations) which are the "litigants" in the
arbitration. This result follows from the actual fact that an industrial dispute necessarily involves the
idea of a demand made by or upon a group of employers or employees.
These considerations do not affect the principle that the Commonwealth Court of Conciliation and
Arbitration cannot impose duties or confer rights upon persons who are neither parties to, nor
represented in any manner in, the dispute or the arbitration proceedings.

It does not, however, follow that an industrial award, by imposing duties upon such parties (which
are owed only to other such parties), cannot affect the possible employment of third persons who are
not such parties in any sense. It is true that the procedural provisions of the Act limit the legal effect
of an award to persons who either directly are, or by reason of representation are regarded as being,
such parties. But the terms of an award may prevent the creation of specified legal relations between
a party and third persons. An obvious example is found in the admitted proposition that an award
may grant preference to unionists. So far as the award creates legal relations between persons, it
affects only the parties to the dispute and to the proceedings. But it prevents the lawful employment
of non-unionists and therefore prohibits the creation of a contract of employment between
employers and non-unionists, even though the latter were not parties to or heard in the arbitration
proceedings.

The power to grant preference to unionists is not found in sec. 40. That section assumes the
existence of such a power and prescribes conditions affecting its exercise. The power is to be found
in the definitions of industrial dispute and industrial matters, and in the sections which give the
Court jurisdiction to settle such disputes by the method of arbitration.

If it is admitted (as is the case) that an award may entirely prohibit the employment of non-
unionists, though they are not parties to any dispute or to any arbitration proceedings, it is difficult
to see why an award should not contain a provision prohibiting the employment of non-unionists
except upon industrial terms and conditions specified in the award. Such an award would not confer
rights upon non-unionists, but it would impose duties upon employers and a breach of such duties
would be an offence under the Act (see secs. 38 (d), 44, 49).

It is contended, however, that the Court is precluded by previous decisions from adopting this view.
It has already been shown that the principle suggested does not conflict with the decisions which
declare that only the parties to a dispute and to arbitration proceedings can be bound by or acquire
rights under an award. It has also been shown that a claim by a union that employers shall not be
allowed to prejudice or to diminish the employment of unionists is a claim as to an industrial matter
which, if resisted, may bring about an industrial dispute. But it is urged that the Court has already
decided the crucial question in the case of Amalgamated Engineering Union v. Alderdice Pty. Ltd.;
In re Metropolitan Gas Co.[3], followed and applied in Amalgamated Clothing and Allied Trades
Union of Australia v. D. E. Arnall & Sons; In re American Dry Cleaning Co.[4]. In Alderdice's
Case[5] Gavan Duffy and Starke JJ., with whom the Chief Justice (Sir Adrian Knox) agreed, said:--
"It is not necessary to determine what jurisdiction might be given to the Court under the terms of the
Constitution, because clear words would be necessary in the Arbitration Act to endow the Court
with powers and authority to specify the duty of employers to employees who are not parties to the
industrial dispute before the Court, nor members of nor represented by the organization making the
claim. Nowhere in the Act are any such words to be found: always the power is to settle some
dispute in which the parties are more or less defined or capable of definition (cf. secs. 16, 18, 19,
19B, 23, 24, 26, 27, 29, 32, 37, 38 (i), (j), (p), (s), 38B and 48), and to make orders and awards with
respect to the reciprocal duties and obligations of the parties appearing or represented in that
dispute. The power in the Court to grant preference of employment to unionists in no wise conflicts
with this view: that is a power to prescribe the rights and duties of the actual disputants as between
themselves, though it may also be detrimental to the interests of others." The other three members of
the Court decided the case upon other grounds. The same learned Justices re-affirmed this statement
as to the law in Arnall's Case[6], where Rich and Dixon JJ. concurred in the decision of the Court,
stating that it would be "a futile proceeding for us to investigate for ourselves a question so recently
considered by our colleagues, and to form our opinion when we have their decision to which they
now adhere and which must govern this case. It would, in any event, be undesirable for us to take
such a course, and it is made no less undesirable by the consideration that if we did arrive at an
opinion upon the meaning of the statute opposed to that of our colleagues, a thing we do not suggest
as likely, we should then be faced with the formidable constitutional question whether, so
interpreted, the Act was within the power of Parliament."

In Long v. Chubbs Australian Co. Ltd.[7] the question arose whether an award could validly provide
that non-unionist minors (not parties to any dispute and not represented in the arbitration
proceedings) should not be engaged in certain specified occupations unless they were employed
under contracts of apprenticeship framed in accordance with the award. It was held by Rich, Dixon,
Evatt and McTiernan JJ., who constituted the Court for the hearing of the case, that, the engagement
of minors being a matter within the ambit of the relevant industrial dispute, the provision in the
award was valid; the award created, in relation to industrial matters, rights and duties which were
enforceable and performable by the parties to the award. The Court examined the decision in
Alderdice's Case[8] and, after citing the passage already quoted from the judgment in that case,
said:--"We think the passage we have quoted impliedly concedes that, where the material interests
of one set of disputants are directly affected by the relations which the other set habitually enters
into with strangers to the dispute, an award may regulate their entry into these relations, at any rate
if it assumes to do no more than confer rights and impose duties upon the disputants and, in the case
of organizations, their present and future members"[9]. The Court then repeated what was said in
Arnall's Case[10] with respect to the binding force of Alderdice's Case[11]. As to Arnall's Case[12]
itself the Court says:--"Arnall's Case4(1929) [1929] HCA 35; 43 C.L.R. 29. itself is somewhat
nearer to the present because it concerned improvers. But we do not think that we are called upon to
consider that decision, because we think that in any view apprenticeship is a matter with which the
Court of Conciliation and Arbitration may deal. It is desirable, however, to point out that the
decision of that case is by three Justices in a Court of six"[14].

These authorities, in my opinion, leave it open for the Court to decide that the Arbitration Act
authorizes the making of an award which, being limited to the ambit of an industrial dispute, and
conferring rights and imposing duties only upon the parties (understood in the extended sense
explained) to the dispute and to the arbitration proceedings, prohibits one set of disputants from
entering into industrial relations with strangers save and except upon specified terms. In my opinion
the Court should now so decide.

This analysis of the matter answers the objections based upon the Constitution, sec. 51 (XXXV.).
Such an award deals with an industrial dispute, and the award, regarded (as it should and must be
regarded) as conferring rights and imposing duties only upon "parties," is the result of arbitration as
defined in previous decisions of this Court.

It has been argued before us that the question which arises is concluded by the decision in
Australian Boot Trade Employees' Federation v. Whybrow & Co.[15]. In that case it was held that
the provisions of the Act which purport to authorize the Commonwealth Court of Conciliation and
Arbitration to declare and to establish a common rule were ultra vires the Parliament of the
Commonwealth and invalid. The ground of that decision, however, is to be found in the principle
that an award, whether made for the purpose of preventing or for the purpose of settling an
industrial dispute, could not bind others than the disputants. Accordingly it was determined that an
award could not extend beyond the area of the dispute so as to regulate the whole of an industry
irrespective of the extent of the dispute. But it was not denied that the award could deal with the
whole subject matter of the industrial dispute. That subject matter may include a controversy as to
the industrial relations of disputants with strangers to the dispute. If so, there is nothing in the
principles upon which Whybrow's Case[16] was decided which prevents the making of an award
dealing with that controversy (cf. George Hudson Ltd. v. Australian Timber Workers' Union[17]).
These considerations provide a reply to the objection that the proposed award would be legislative
rather than arbitral in character.

It has been urged, as an argumentum ab inconvenienti in support of the contention that the Act does
not contemplate an award being made which deals with the relations of disputants to persons who
are not disputants, that great confusion will arise if such awards are made. Unionists doing identical
work may, it is pointed out, in some cases belong to either of two or possibly more unions, but as
long as awards deal with the relation of employers to unionists and not with the relation of
employers to non-unionists, it is possible to ascertain which award applies in any given case. It is
urged that, if awards in general are framed upon the model of the proposed award in this case, it will
sometimes be impossible for an employer to know to which award he should refer in order to
ascertain the terms upon which he could lawfully employ a non-unionist. The difficulty is a real
one, but its existence or possible existence cannot be decisive of the legal questions raised. The risk
of such confusion arising and the desirability, indeed the necessity, of preventing it, will doubtless
be present to the mind of the Arbitration Court. The matter is in the hands of the Court, which will
doubtless take pains to prevent more than one award being so expressed as to be applicable in any
given case for the purpose of defining terms upon which any non-members of organizations can be
employed. It is to be presumed that, before any such award is made, the Court will ascertain the
relevant facts and that the terms of the award will be framed in the manner which the Court
considers proper in each case. The employers cited are, of course, entitled to be heard, and the
powers of the Court under sec. 25 of the Act are sufficiently wide to enable the Court to make such
inquiries and hear such representations as it may think just in relation to the interests of any non-
unionists affected, even though they are not parties to the dispute with which the Court is dealing in
a particular case.

Before applying these principles to the particular case which is before the Court it is perhaps
advisable to restate definitely the proposition that the Arbitration Court has jurisdiction to deal
directly with the actual matters which constitute the substance of an industrial dispute--that is, the
actual industrial claims made by one side and refused by the other side. When the Court so deals
directly with such a claim actually made, by granting or refusing it, the question decides itself as to
whether the relevant provision in the award is "relevant to the dispute" or "fairly incident to
composing the difference between the parties" or "incidental" to the dispute or "within the ambit of
the dispute" or "not beyond the ambit of the dispute." These phrases are taken from the reasons for
judgment in Australian Insurance Staffs' Federation v. Atlas Assurance Co. Ltd.[18]. The members
of the Court differed in opinion as to the ambit of the dispute, or the area of the controversy, in the
case then before the Court, but all accepted the general proposition that the Court could by its award
deal with industrial matters which were within such ambit.

The dispute with which the Arbitration Court can deal and to which it is limited is the actual
industrial dispute of which it has cognizance. The acts of the parties determine the ambit of the
dispute. The fact that the Arbitration Court or this Court may consider an industrial claim to be
unimportant or trifling or unwise has no bearing upon the actual content of the dispute or upon the
jurisdiction of the Arbitration Court to deal with that claim in an award. The Arbitration Court may,
because it considers that a claim, though actually made, is not important or really significant,
decline to include in an award any provision with respect to it. But if, for reasons satisfactory to the
Arbitration Court, such a claim is granted in the award, there can, in my opinion, be no valid
objection, upon the ground of jurisdiction, to the Arbitration Court making such an award. The
award in such a case would deal directly with an actual part of the dispute. The question of whether
such a provision is appropriate for the settlement of the dispute is a question for determination by
the Arbitration Court alone. I am of opinion, for the reasons stated, that the Arbitration Court has
jurisdiction to make an award as to the terms of employment of non-unionists by employers
between whom and a union a dispute relating to that subject in fact exists, whether or not those
employers employ any unionists. The wisdom and propriety of such an award being entirely a
matter for the discretion of the Arbitration Court, I now proceed to what I regard as the only further
question, namely, whether in this case there was evidence that a dispute relating to that subject in
fact existed between any and which of the unions and employers.

This is a case stated by the Commonwealth Court of Conciliation and Arbitration under sec. 31 of
the Commonwealth Conciliation and Arbitration Act 1904-1934 for the opinion of the High Court.
The questions arise in the matter of industrial disputes between the Metal Trades Employers
Association and its members and other employers in the engineering and metal trades industries on
the one hand, and a number of industrial organizations of employees on the other hand. The
employers' claim contained the following clause:--"Clause 20.--This award shall come into
operation on the first day of November, 1933, and shall remain in operation for a period of five
years and shall be binding upon the claimant persons, firms and companies whose names are set out
in the schedule annexed hereto and their employees members of the organizations of employees
whose names are set out in the schedule annexed hereto." Claims made by the Amalgamated
Engineering Union, the Australasian Society of Engineers, the Blacksmiths Society of Australasia,
and the Federated Society of Boilermakers Iron Shipbuilders and Structural Iron and Steel Workers
of Australia, asked that the employers grant "to your employees" or "to your employees whether
members of the union or not" certain wages and working conditions. In the case of the Federated
Moulders (Metals) Union of Australia the claims were headed:--"General Log of Wages and
Conditions of Employment:--1. Wages.--The minimum rate of pay to be paid by any respondent to
employees shall be as follows:--" [Here follows a table of classifications of employees and
marginal rates claimed for such classifications respectively.] The claims when served were
accompanied by a letter from the union in the following terms, so far as is now relevant: "I am
directed by the Federal Council of the above union to respectfully request you to grant to them
improvements in the working conditions as contained in the log of wages and working conditions
enclosed herewith." The claims made by the Electrical Trades Union of Australia, the Sheet Metal
Workers Industrial Union of Australia and the Federated Iron Workers Association of Australia did
not refer to wages &c. of persons who were not members of the unions. Employers in South
Australia were served with the claims of the first five mentioned unions, but, except for what is
stated to be a "limited extent, if at all," they are not themselves claimants in any industrial dispute
pending in the Arbitration Court. Certain employer respondents in South Australia had not at any
relevant time employed any member of the claimant organizations. Counsel for a large number of
employers in the State of South Australia, parties to the said dispute, objected that the Court had no
jurisdiction to make an award binding upon employers in respect of employees not members of the
organization or organizations by which claims had been served upon such employers. This
contention was supported in the Court also by the State of South Australia (intervening) and the
Federated Iron Workers Association and the Electrical Trades Union. Other unions concerned were
not represented upon the hearing of the case stated. The contrary view was supported by the Metal
Trades Employers Association and the Commonwealth (intervening). Employers in the States of
New South Wales, Victoria and Tasmania consented to an award being made so as to be binding
upon employers as to employees whether members of the unions or not.

The question which is submitted for the opinion of the High Court is as follows:--"Has the
Commonwealth Court of Conciliation and Arbitration jurisdiction to prescribe that the said award in
so far as it relates to matters raised in the claims of--(i) The Amalgamated Engineering Union; (ii)
The Australasian Society of Engineers; (iii) The Blacksmiths Society of Australasia; (iv) The
Federated Society of Boilermakers Iron Shipbuilders and Structural Iron and Steel Workers of
Australia; (v) The Federated Moulders (Metals) Union of Australia; shall be binding in the State of
South Australia upon employers in respect of employees not members of either of the said
organizations of employees (a) where such employers do not at any material time employ members
of the relevant organization of employees; (b) where such employers do employ members of the
relevant organization of employees." In the case of the Moulders Union neither the employers nor
the employees made any claim which brought into dispute the wages &c. of non-members of the
union. The employers clearly made no such claim and the letter from the union stated that the
Federal Council of Union requested "you to grant to them" improvements &c. The fair construction
of this phrase limits it to a claim made in relation to improvements &c. for members of the union. In
the case of the matters raised in the claims of the Moulders Union the question should accordingly
be answered in the negative. In the case of the other four unions mentioned in the questions, the
rates of pay, working conditions &c. of non-members of the respective unions were matters in
dispute between the parties, and, for the reasons stated in the earlier part of this judgment, the
answers should be in the affirmative.

The question in my opinion should be answered in the following manner:--As to matters raised in
the claims of (i) The Amalgamated Engineering Union; (ii) The Australasian Society of Engineers;
(iii) The Blacksmiths Society of Australasia; (iv) The Federated Society of Boilermakers Iron
Shipbuilders and Structural Iron and Steel Workers of Australia, in case (a): Yes; in case (b): Yes.
As to matters raised in the claims of (v) The Federated Moulders (Metals) Union of Australia, in
case (a): No; in case (b): No.

Rich and Evatt JJ.

This is a case stated under sec. 31 (2) of the Commonwealth Conciliation and Arbitration Act,
which enables the Arbitration Court, as to any question of law arising in proceedings before it, to
seek the opinion of the High Court.

It appears from the case that Judge Beeby had cognizance of a number of industrial disputes in the
metal trades throughout Australia, and that, in relation to each dispute, a question as to the Court's
jurisdiction has been raised by certain employers in the State of South Australia.

The question of jurisdiction, as asked by Judge Beeby, is as follows:--"Has the Commonwealth
Court of Conciliation and Arbitration jurisdiction to prescribe that the said award in so far as it
relates to matters raised in the claims of--(i) The Amalgamated Engineering Union; (ii) The
Australasian Society of Engineers; (iii) The Blacksmiths Society of Australasia; (iv) The Federated
Society of Boilermakers Iron Shipbuilders and Structural Iron and Steel Workers of Australia; (iv)
The Federated Moulders (Metals) Union of Australia--shall be binding in the State of South
Australia upon employers in respect of employees not members of either of the said organizations of
employees (a) where such employers do not at any material time employ members of the relevant
organization of employees; (b) where such employers do employ members of the relevant
organization of employees."

It is to be noted that, in the case of the first four of the five organizations of employees specified in
the above question, each organization, in making demands upon the employers throughout
Australia, including employers in South Australia, also demanded that the wages and working
conditions specified in the log should apply to "all persons employed by" the employer. The fair
intendment of the demand is that each organization was insisting that improved wages and working
conditions should be granted by the specified employer to all his employees, whether such
employees were members of the organization or not. Such demand was made in express terms in the
case of the fourth organization referred to in the question, viz., The Federated Society of
Boilermakers. In the case of the fifth organization mentioned, viz., The Federated Moulders Union,
the log of demands cannot fairly be construed as containing a demand upon the specified employers
that the wages and conditions asked for in the log should be granted to those who were not members
of the union, for, prima facie, demands by registered organizations, whether of employees or
employers, should be construed as being made only in the direct interests of those who are, or may
become, members thereof.

The question asked by Judge Beeby relates to "jurisdiction" in a general way. It is clear that the
jurisdiction of the Arbitration Court to prescribe in the manner set out in the question may be
defeated on several grounds. One possible ground for denying jurisdiction is the absence of any real
or genuine dispute as to whether the specified employers should concede to non-unionists the wages
and industrial conditions demanded by the organizations. Under certain circumstances, it might be
proved that neither the organization nor its members really desired that the demand for uniformity
should be acceded to. But such a question of reality of dispute, usually one of fact, not law, does not
arise for our consideration on the present case, where it is expressly said that "the existence of
industrial disputes extending beyond the limits of any one State on all matters raised in the said
claims was not denied by any party represented before the Court." Indeed, the whole framework of
the case is clearly intended to exclude any debate as to whether that part of the log of demands
which requires of the employers that they should concede the wages and conditions to non-unionists
has been genuinely advanced. If so, such demand, having been refused, is necessarily a part of the
subject matter of dispute between the parties.

It is now apparent that two questions of law emerge for our consideration in answering the one
question of jurisdiction. The first question is whether the five logs of demands made by the
respective organizations of employees, and in relation to which the disputes came into existence,
included a demand that the employers who were served with the log should apply to non-unionists
employed by them the same wages and conditions as were demanded in the case of unionists. This
question has already been discussed. It is plain from a consideration of the five logs that, in the case
of the four organizations first mentioned in the question asked, the logs, and therefore the industrial
disputes, extended so as to cover such a demand, whereas, in the case of the fifth organization, the
log did not so extend. This conclusion makes a negative answer necessary in the case of the claims
made by the Moulders' Union, because, if a registered organization desires that specified wages and
conditions should be applied in a trade or an industry as a standard generally, and not merely for its
own members, it should be expected to make its demands in sufficiently wide terms to secure that
result; and, in the absence of a log sufficiently comprehensive for such a purpose, the Arbitration
Court has no jurisdiction to include a clause in its award compelling employers to apply to non-
unionists the unionist standard of wages and conditions.
In relation, however, to the claims of the first four organizations specified in the question, the
second question of law arises. It is of general importance, because it involves a reconsideration of
the principles applied by three of the six Justices who decided what is known as Alderdice's
Case[19]. Owing to the differences of opinion revealed in that case, the question should be
considered anew.

The question may be posited as follows:--Where a genuine industrial dispute extending beyond the
limits of one State has arisen following upon demands made by (A) a registered organization of
employees, the membership of which covers an industry, craft or portion thereof, upon (B) specified
employers or a registered organization of employers engaged in or covering the same industry, craft
or portion thereof, the demands, including a demand that (C) the specified employers or the
members of the registered organization of employers should accord to non-members of the
organization of employees the same wages and conditions as are being demanded in relation to
members of the organization, does the Constitution or the Commonwealth Conciliation and
Arbitration Act preclude the Arbitration Court from settling that portion of the industrial dispute
which is represented by the demand (C)?

First, let us refer to the constitutional power. By sec. 51 (XXXV.) of the Constitution, the Parliament
is empowered to legislate in relation to arbitration for the settlement of industrial disputes extending
beyond the limits of one State. The only question which can be raised in relation to the
constitutional power to settle such a dispute as has been defined above is whether what is, ex
hypothesi, a dispute between employers and employees in an industry ceases to be "industrial"
merely because the employees require that the employers shall observe certain wages and conditions
in the employment not only of employees, parties to the dispute, but of employees who are not
parties to the dispute, but are employed in the same industry. The practical interest of unionist
employees in making such a demand is obvious. It is not made from motives of altruism, but for
two important reasons of material interest. In the first place, if the employer is allowed to employ
non-unionists at lower wages than in the case of unionists, there will be a direct inducement to the
employer to employ the cheaper class of labour, and to dispense with, or not engage at all, the
services of unionists. In the second place, the economic result of differing standards of wages for
employees engaged in similar work in the same trade or industry is a powerful tendency towards the
general adoption of the lower standard, because, under modern conditions of easy communication
between all parts of industry, the tendency of the wages standard is to reach the lower level. Both
these results of a lower wage for non-unionists are, or may be, disastrous to the union and its
members, and may tend to produce great dissatisfaction and discontent. It is difficult to see why, in
insisting upon the one standard throughout the industry, the unionists are not precipitating a dispute
which is essentially "industrial" in character. The demand of the unionists may be considered
unreasonable by an arbitrator, but the only question for our consideration is whether the demand,
being genuinely made and refused, is part of the industrial dispute. If it is, an arbitrator may either
grant it in whole or in part, or refuse it altogether. If the dispute is not "industrial," what kind of
dispute is it? It is not a dispute as to social, political, religious, moral, business, literary, artistic,
scientific, domestic, or sporting matters. It arises from demands by an organization of employees in
an industry upon employers in the same industry. It relates to what is to be done by such employers
in reference to other employees doing similar work in the same industry. It has come into existence
because the unionists either will, or suppose that they will, be adversely affected if their union wage
standard is not adhered to by all the employers upon whom they are making their demands. Whether
such a dispute is wise or unwise in genesis, it is, in all respects, "industrial" in nature and character.
Instances of similar disputes may be found in the history of trade unionism, and some are
conveniently collected in Federated Clothing Trades of the Commonwealth of Australia v.
Archer[20], in the judgment of Isaacs and Rich JJ. An illustration of an industrial dispute between a
union and an association of employers, which was settled by an award containing a clause of
equality of pay for unionists and non-unionists employed together is referred to in Trolly, Draymen
and Carters Union of Sydney and Suburbs v. Master Carriers Association of New South Wales[21].
Similar illustrations could be multiplied indefinitely.

Nor does the fact that the demand made by the unionists extends to the case of employers who do
not employ unionists at all, prevent the creation of an industrial dispute upon the subject matter of
the terms and conditions which should be observed by such employers in employing such non-
unionists. In such cases, the union has an equally direct concern in removing the obstacles to the
employment of its own members and to the maintenance and protection of the union standard of
wages, even although the removal of such obstacle by the granting of the demand will incidentally
benefit persons, non-unionists, who are not parties to the dispute, but the terms of whose
employment by their employers (parties to the dispute) is the subject matter of the industrial
dispute. In this respect the present case is a fortiori to that of Burwood Cinema Ltd. v. Australian
Theatrical and Amusement Employees' Association[22], because there the industrial dispute in
question related to what was to be done, not immediately, but in the future, in respect of those
employees who might subsequently be members of the claimant organization. In the present case the
dispute between the organization and those employers in South Australia who do not employ
members of the organization, is as to the present conduct of such employers, not their future
conduct, and the demand is made because the organization desires to avoid the present and
immediate harm, both material and economic, to its members, if the employers in question will not
observe the union standard of wages and conditions.

In such a case as we are considering at the moment--that of employers who do not employ
members of the union--it is obvious, indeed admitted, that an "industrial dispute" may arise if the
union demands preference of employment for its members or that all the non-unionists shall be
dismissed, and only unionists employed. If such a demand were refused, an industrial dispute would
be created as to the subject matter mentioned, even although the terms of the Commonwealth
Conciliation and Arbitration Act may preclude the Court from making an award in the absolute
terms of the demand mentioned. And the instance of preference to unionists shows clearly that the
subject matter of a demand may create an industrial dispute between the union and employers who,
by accident or design, employ non-unionists only. If it is closely examined, the demand in the
present case is a less stringent demand than that of preference to unionists. The practice of the
Commonwealth Arbitration Court seems to have been not to give preference to unionists except in
special cases. Knowing this, a union may well be disposed to say:--"We are aware that we are
unlikely to persuade the employers to grant preference to our members. But we shall at least
demand this, that industrial conditions which are operating as a permanent discrimination against
our members shall be terminated. The lower non-unionist standard of wages and conditions so
operates that, in many cases, it is impossible for our members to be employed at all, and the lower
standard also threatens the existence of the higher union standard. We shall insist upon these
employers abandoning the lower non-union standard."

Such a demand may be regarded as unreasonable, but the only question is whether the union can be
regarded as asserting it in the interests of its members. In whose interests is it made if not in the
interests of the union and its members?

It should therefore be held that the Constitution does not preclude the Court from settling that part
of an industrial dispute, otherwise within its jurisdiction, which relates to a demand that specified
employers shall pay, to non-unionists as well as unionists, the wages set out in the log.

The next question is whether the Commonwealth Conciliation and Arbitration Act itself has
provided for the exclusion of such a matter from the jurisdiction of the Court so that the Court
cannot proceed to settle such portion, and such portion only, of an industrial dispute.

In Alderdice's Case[23] Knox C.J., Gavan Duffy and Starke JJ. expressed the view that the Act itself
presents an obstacle to the exercise of such a jurisdiction by the Court. In that case it was said that
"clear words would be necessary in the Arbitration Act to endow the Court with powers and
authority to specify the duty of employers to employees who are not parties to the industrial dispute
before the Court, nor members of nor represented by the organization making the claim"[24]. With
all respect, one would prefer to say that if what would ordinarily be regarded as an "industrial
dispute" does include a dispute between employers and employees as to the observance by
employers in the industry of the union standard of wages and conditions with respect to all persons
employed, clear words in the Act should be discovered before it is determined that such part of an
industrial dispute, and such part alone, cannot be dealt with by conciliation and arbitration,
although gravely threatening the peace of an industry.

After stating the principle in the words quoted, the learned Justices proceed:--"Nowhere in the Act
are any such words to be found: always the power is to settle some dispute in which the parties are
more or less defined or capable of definition (cf. secs. 16, 18, 19, 19B, 23, 24, 26, 27, 29, 32, 37, 38
(i), (j), (p), (s), 38B and 48), and to make orders and awards with respect to the reciprocal duties
and obligations of the parties appearing or represented in that dispute"[25].

Again we are unable to agree. All the sections of the Act referred to indicate, it is true, that the
Court should endeavour to secure an agreement between the parties to the dispute and, if it fails to
do so, should settle it. Of course this means as between the parties. The sections referred to are, in
the main, not concerned with the subject matter of the dispute between the parties. But sec. 24 (2)
makes it clear that what is called "the whole of the dispute," and not merely a part of it, must be
settled. However, it is to sec. 4 of the Act that one has to turn in order to ascertain the legislative
intent as to whether any subject matter of dispute is to be deemed excluded from the jurisdiction of
the Court. When we turn to sec. 4 we find that "industrial dispute" includes any dispute as to
"industrial matters." The latter phrase is defined in the widest possible terms. It includes all matters
relating to wages and conditions of employment and non-employment, and indeed, "all matters
pertaining to the relations of employers and employees." It is not possible so to confine or "read
down" these sweeping words describing possible subject matters of dispute that they will not
include the important question whether employees in the same industry should receive the same
wages and conditions without discrimination or differentiation upon the ground of union
membership. Such a matter is of great moment to the unions and its members, and, if it chooses to
dispute upon the matter, the dispute is "industrial" in character.

As the Court is overruling the reasons of three of the Justices in Alderdice's Case[26], it is proper to
refer to several other matters. The validity of that reasoning has long been subject to question. The
reasons were not the ratio decidendi of the order made by the Court. The decision was pronounced
in 1928, but, soon after, in 1929, it was apparent that no other Justice was prepared to accept the
reasoning as decisive (Amalgamated Clothing and Allied Trades Union of Australia v. D. E. Arnall
& Sons; In re American Dry Cleaning Co.[27]). Recently, the case of Long v. Chubbs Australian
Co. Ltd.[28] showed that there is no inherent constitutional incapacity in the Arbitration Court to
settle a dispute between a union and specified employers as to the conditions of apprentices
employed by such employers, whether such apprentices are members of the union or not. In Long's
Case[29] the Court found an express indication in the Act that such a dispute was included within its
purview. But, if it is also included, as it must be, in the denotation of "industrial dispute" in sec. 51
(XXXV.) of the Constitution, it is strong evidence that, so long as a union has a real concern in the
conditions under which other persons, not members of the union, are employed by employers in the
industry, an industrial dispute may arise between the union and such employers as to such
conditions, and it is nothing to the point that the result of the intervention of the authority which
arbitrates upon such a dispute, by awarding in favour of the union, will be to benefit persons who
are not members of the union. From the point of view of the constitutional power, Long's Case[30]
is analogous to the present.

Two other points may be mentioned. The first is the argument that the result of affirming
jurisdiction in the Arbitration Court may be to enable that Court to impose its award as a "common
rule" throughout the industry. But this is not so. The award, when made, will only bind parties to the
dispute. It will neither bind, nor have any relation whatever to, employers not parties to the dispute.
Nor will it bind in any way those employees who are not members of the organization, but who are
employed by employers who are parties to the dispute. Indirectly, and as a result of the employer's
complying with the award, non-unionist employees will, or may be, benefited, but they will be quite
unable to enforce the award, the organization of employees being the only party able to do so. A
second point was made that it would, or might, be difficult for an employer to ascertain whether a
non-unionist employed by him should be employed upon the terms of one award or another. In a
properly drawn series of awards no such difficulty should arise.

Finally, it should be stated that although the conclusion reached in this opinion has involved a
reconsideration of the principles involved, the powerful judgment of Isaacs J. in Alderdice's
Case[31] may itself be accepted as an accurate statement of the legal and constitutional position.

The questions in the case stated should be answered as follows:--(i) Yes, as to both (a) and (b). (ii)
Yes, as to both (a) and (b). (iii) Yes, as to both (a) and (b). (iv) Yes, as to both (a) and (b). (v) No.

Starke J.

Case stated by a Judge of the Commonwealth Court of Conciliation and Arbitration pursuant to sec.
31 of the Commonwealth Conciliation and Arbitration Act 1904-1934. Several organizations
registered under the Act served upon employers in the States of New South Wales, Victoria, South
Australia and Tasmania, what are called logs of wages and working conditions for all persons
employed by them in any branch of the industry mentioned in the logs, and in one case a covering
letter served with the log specifically stated that the claim was made in respect of employees
whether members of the organizations or not. The question stated is whether the Commonwealth
Court of Conciliation and Arbitration has jurisdiction to make an award, in so far as it relates to
matters raised by the claim, which shall be binding in the State of South Australia upon employers
in respect of employees not members of any of the claimant organizations. Admittedly, twice in this
Court has the question been decided in the negative (Amalgamated Engineering Union v. Alderdice
Pty. Ltd.; In re Metropolitan Gas Co.[32]; Amalgamated Clothing and Allied Trades Union of
Australia v. D. E. Arnall & Sons; In re American Dry Cleaning Co.[33]). In Long v. Chubbs
Australian Co. Ltd.[34] the Court did not depart, or at least ought not to have departed, from those
decisions, though to my mind it is difficult to appreciate the distinction there made. But, some six
years having gone by since those decisions were given, the whole matter is again agitated and re-
argued.
My opinion is, as it always has been, that the Commonwealth Court of Conciliation and Arbitration
has no power under its Act to regulate the rights and duties of an employer towards persons who are
neither parties to a dispute nor members of an organization at the time of the dispute or
subsequently. It is conceded that the Arbitration Court cannot make a common rule in any industry,
despite the provision in sec. 38 (f) of the Act. It cannot regulate the conduct of industrial
enterprises, but can only settle so much of an industrial dispute extending beyond a State as is not
settled by agreement. It is the reciprocal legal or industrial relations of the parties within the ambit
of the dispute that can be settled. But a provision that persons, who are not parties to the dispute,
shall not be employed, or shall receive more or less wages, or be subject to more or less onerous
conditions, than the parties to the dispute, is not settling the legal or industrial relations of the
parties to the dispute; it is, in substance if not in form, regulating the conduct of industrial
enterprises. No rights or duties are conferred or imposed upon any person who is not a party to the
dispute, and whether prejudiced or benefited, he is not heard upon the subject and cannot enforce
any such provision. Yet such a provision, so it is contended, is an industrial matter within the
meaning of sec. 4 of the Commonwealth Conciliation and Arbitration Act. I do not agree, and for
the reasons given in Alderdice's Case[35] and in Arnall's Case[36], which it is useless further to
elaborate. In my opinion, those cases were rightly decided, and the questions stated in the present
case should all be answered in the negative.

Dixon J.

This is a case stated by the Commonwealth Court of Conciliation and Arbitration for the opinion of
the High Court under sec. 31 (2) of the Commonwealth Conciliation and Arbitration Act 1904-1934.

It appears from the facts stated that four registered organizations of employees, having members
employed in what is called the metal trades industry, served upon employers, whose operations fell
under that classification, logs of claims or demands for minimum wages and for conditions of
employment which they demanded should "govern the wages and working conditions of all persons
employed by a respondent in any branches of the industry named in the log." The Court of
Conciliation and Arbitration took cognizance of disputes arising out of the logs, and no one
appearing before it denied that industrial disputes existed extending beyond the limits of any one
State on all matters raised by the claims. Among the employers served with logs were some carrying
on operations in South Australia who employed no members of any of the four organizations of
employees. These employers and some others carrying on operations in that State, who, however,
did employ some members of one or more of those organizations, objected that the Court of
Conciliation and Arbitration had no jurisdiction to make an award binding upon employers in
respect of employees not members of the claimant organizations. The Court of Conciliation and
Arbitration has made a single comprehensive award dealing with these and some other disputes, but
it has not yet included in the operation of the award persons who are not members of any of the
organizations. The case stated submits to this Court the question whether the Court of Conciliation
and Arbitration has jurisdiction to prescribe that the award, in so far as it relates to matters raised in
the claims of each of the four organizations of employees, shall be binding in the State of South
Australia upon employers in respect of employees not members of such organizations. The question
is also asked in relation to a fifth body, but it may be dismissed from consideration because that
organization's claim did not extend to non-members.

In my opinion the Court of Conciliation and Arbitration has no jurisdiction to include the proposed
provision in its award. My opinion is based upon the incapacity of the Court under the Constitution
to make an industrial regulation unless it be appropriate for the settlement of an industrial dispute. I
do not base it upon any limitation upon the power of the Court arising from the legislation enacted
pursuant to the constitutional power. If, within the meaning of the Constitution, an industrial dispute
could and did exist of such a nature as to call for an award restricting the freedom of disputants to
employ strangers to the dispute upon what terms and conditions they pleased, I should be unable to
find in the legislation anything to prevent the Court of Conciliation and Arbitration making such an
award. It is right that I should state briefly why it is that I think in this respect the statute does not
add to the restrictions upon the power of the Court of Conciliation and Arbitration arising from the
nature of the constitutional power. But I shall first deal with the grounds upon which I have reached
the conclusion that in the settlement of such a dispute as those described in the special case, it is
beyond the power of that Court to make an award governing the relations which employers who do
not employ members of the organization may establish with strangers to the dispute. It is, perhaps,
desirable for me to say at once that I do not deny the possibility of a dispute ever arising of such a
nature as to found an award requiring employers, parties to the dispute, to refrain from employing
anyone, whether a member of the organization or not, except on specified terms. What I do deny is
that such a dispute can arise between employers or organizations of employers, on the one hand, and
employees or organizations of employees, on the other, who are not and have not been in any state
of actual co-operation. It is one thing to say that an organization of employees may, by a paper
demand, raise a dispute with employers, who do not employ its members, about the wages to be
paid and the conditions to be afforded to any of its members they may in future employ. It is quite
another to say that the organization may raise a dispute with them on the subject of wages and
conditions upon which they may continue to employ their workmen, although they do not include
members of the organization and the employers have never engaged a single member of the
organization. It is one thing to say that an organization, whose members furnish the labour for an
undertaking, may raise a dispute on the question whether the employers conducting the undertaking
shall proceed to take into their works non-unionists at lower rates of pay and on less favourable
conditions. It is quite another thing to say that an organization whose members furnish none of the
labour for the undertaking may raise a dispute with those conducting it upon the wages and
conditions enjoyed by the members of another organization which furnishes all the labour.

These distinctions may serve to illustrate why it may be possible for an award to impose upon an
employer a duty of the nature I have described if and when the settlement of an industrial dispute
calls for such an arbitral provision. But this cannot happen unless an industrial dispute extending
beyond the limits of any one State arises which requires for its settlement an award constraining
employers to employ strangers to the dispute, either not at all, or upon equal conditions of pay and
labour. Such an award can only be called for in cases in which the subject and nature of the dispute
make the regulation of the relations between the employers in dispute and strangers to the dispute
relevant thereto and appropriate for its settlement. But, if this occurs, all the conditions are fulfilled
to bring the exercise of authority within the scope of the constitutional power. It is unnecessary to
say in the present case whether such a thing may occur. The question for decision is whether it has
occurred. But circumstances may be imagined giving rise to a dispute which would justify an award
regulating the relations which an employer in dispute may establish with strangers to the dispute. It
is not difficult to conceive of a demand made upon their actual employers by a body of employees
acting in concert insisting that they shall not take into their employment workmen who receive less
wages or less favourable conditions of employment than they do. The causes of such a demand, no
doubt, would include the fear that the maintenance of existing wages and conditions was threatened
by the competition of non-unionists. But differential treatment of employees working side by side
may provoke an unrest which is based on feelings more instinctive than reasoned but none the less
real and intense. The difficulty lies not in acknowledging that such cases may arise but in defining
them. At one extreme, it may appear to the Commonwealth Court of Conciliation and Arbitration to
be imperative, in order to avert a dislocation of industry, that it should give effect to a demand on
the part of the employees that some limit should be placed upon their then employer's liberty to
engage non-unionists on such terms as he pleases. But it is evident that, at the other extreme, it may
be no more than an expedient to overcome the want of power to make a common rule affecting
employers who do not, as well as those who do, employ members of the disputant organization.
This, in my opinion, cannot be done. It cannot be done for the reason that no industrial dispute
could arise which would support an award prescribing the terms and conditions upon which
employers, who never employ members of the disputant organization, may employ persons who are
not members of that organization. An industrial dispute involves some disagreement between the co-
operators in industry, whether individually, by groups, by classes, or by representation, and in such a
case there is no co-operation. To me it seems something like a contradiction in terms to describe as
an industrial dispute the failure to comply with a demand made by a body of employees upon an
employer, who has never employed any of them, as to the terms and conditions upon which he shall
employ strangers to them. No doubt the conception of industrial dispute has, under the influence of
judicial decision, undergone a process of expansion or extension. But, in my opinion, no decision
that has been given, and no principle that has been adopted so far, warrants such a consequence. A
brief statement of the relevant steps in that development is a fitting preface to the reasons I shall
give for deciding against the jurisdiction of the Court of Conciliation and Arbitration.

In The Builders' Labourers' Case[37] this Court relinquished the endeavour to find in the
circumstance that a dispute has been raised by an organization for the purpose of obtaining an award
a reason sufficient in itself for denying that the dispute is genuine. It also decided that a formal
demand for improved conditions of pay and work, if refused, affords prima facie evidence of a
dispute. From that time the formulation of claims by registered organizations of employers became
a procedure recognized as sufficient to found the Court's jurisdiction to make an award unless some
particular reason appeared for saying that there could not be, or was not, a dispute. The validity of
the provisions in the Act dealing with the formation, registration and incorporation, of associations
or organizations of employees and employers had been sustained in Jumbunna Coal Mine, No
Liability v. Victorian Coal Miners' Association[38] upon the ground that they are incidental to the
power of preventing and settling industrial disputes by conciliation and arbitration. They were
considered so incidental because the power could not be effectively exercised if individual
employees only could be dealt with and if no continuing representatives of the employees existed
who could arrive at a permanent settlement of the dispute by collective bargaining and be the means
of securing obedience to an award when the Court settled it; see per O'Connor J. in the Jumbunra
Coal Mine Case[39], whose judgment appears to be the source of many of the conceptions
developed in the later decisions. The curious consequence has ensued that organizations, existing
under a law upheld on the ground that their formation and registration conduced to the easier and
more permanent settlement by conciliation and arbitration of disputes independently arising, have
come to be the instruments for propounding the claims by which industrial disputes are created so
that the Court of Conciliation and Arbitration may regulate wages and conditions of employment.

The foundation of the system of creating such disputes by logs of demands is the doctrine that the
essential quality of an industrial dispute is not the suspension of industrial relations but
disagreement, difference, or dissidence. Thus this Court has said:--"It is ... established that to
constitute an industrial dispute there must be disagreement between people or groups of people who
stand in some industrial relation upon some matter which affects or arises out of the relationship.
Such a disagreement may cause a strike, a lockout, and a disturbance and dislocation of industry;
but these are the consequences of the industrial dispute, and not the industrial dispute itself, which
lies in the disagreement. It is only because this meaning of the words industrial dispute was adopted
that the Court of Conciliation and Arbitration has been able to exercise the function of prescribing
rates of wages and conditions of employment at the instance of organizations which have done little
more than formulate and deliver logs of demands with which employers have not complied"
(Caledonian Collieries Ltd. v. Australasian Coal and Shale Employees' Federation [No. 1][40]).
Conformably with the same doctrine, this Court has held that in making its awards the Court of
Conciliation and Arbitration is confined to the subject matter of the dispute and cannot include in
the award any term or provision which is inappropriate, or irrelevant, to the settlement of the
questions at issue between the disputants (Australian Insurance Staffs' Federation v. Atlas
Assurance Co. Ltd.[41]; Australian Workers' Union v. Graziers' Association of New South
Wales[42]; Australian Tramway Employees Association v. Commissioner for Road Transport and
Tramways (N.S.W.)[43]). For some time it was considered that, when an award is made, a dispute
must then exist between definite employers and definite employees, being members of the
organization which purported to represent them (Holyman's Case[44]). But the Act provided, in
effect, that, given a dispute settled by award, all persons who during the currency of the award were
or became members of the organization obtaining it were bound by the award and were entitled to
enforce the award (secs. 29 (d) and 44 (1), (2) (c)). Moreover, the Act also provided that, upon the
disposition or devolution of the business of an employer bound by an award, the employer
succeeding to it should also be bound (sec. 29 (ba)). The validity of these provisions might have
been sustained, perhaps, as incidental to the permanent settlement of an industrial dispute, although
such a dispute was confined to defined and presently ascertainable parties. In the beginning,
O'Connor J. said that "if the ... power of the Commonwealth is to be effectively exercised by way of
conciliation and arbitration in the settlement of industrial disputes, it must be by bringing it to bear
on representative bodies standing for groups of workmen. Further, that the representative body must
have some permanent existence, irrespective of the change in personnel of its members from time to
time which is always going on" (Jumbunna Coal Mine Case[45]). When the Court came to decide
upon the validity of the provision extending the obligation of an award to the successors in business
of a disputant, Higgins J. upheld it upon this ground alone (George Hudson Ltd. v. Australian
Timber Workers' Union[46]). But Isaacs J. took wider ground. He said:--"The very nature of an
industrial dispute, as distinguished from an individual dispute, is to obtain new industrial conditions,
not merely for the specific individuals then working from the specific individuals then employing
them, and not for the moment only, but for the class of employees from the class of employers
limited by the ambit of disturbance or dislocation of public services which has arisen or which
might arise if the demand were not acceded to and observed for a period really indefinite. The
concept looks entirely beyond the individuals who are actually fighting the battle. It is a battle by
the claimants, not for themselves alone and not as against the respondents alone, but by the
claimants so far as they represent their class, against the respondents so far as they represent their
class... If Parliament therefore chooses to include successors, it may"[47]. This doctrine naturally
led to the decision that an industrial dispute might arise out of a demand upon an employer by an
organization none of whose members he employed (Burwood Cinema Ltd. v. Australian Theatrical
and Amusement Employees' Association[48]). The demand was for a minimum wage and for
working conditions for members of the organization, and did not require the employers to give the
same wages and conditions to non-members. But there appears to have been a claim for preference
to unionists, although this is noticed expressly only in the judgment of Powers J.[49]. The reasons
given by the majority of the Court for overruling the contrary decision in Holyman's Case[50] and
deciding that an industrial dispute might arise out of the demand by the organization upon
employers who employed none of its members deny that any present relation of employer and
employee need exist between the disputants and that an organization is merely an agent for its
members. An independent capacity to dispute is ascribed to the organization as an association of
employees because it represents a class, not a definite series of individuals; a class the members of
which constantly change, and because the nexus or relationship between the employer and the
association is the industry or calling. The judgment of Starke J. begins with the following
statement:--"Industrial disputes are, as a rule, collective disputes. They may arise between two sets
of workmen, as in the case of demarcation or discipline disputes. Or, as is more common, between
employers or a class of employers on the one side and a large aggregation of workmen on the other.
In the latter case the dispute often relates to the terms on which future employment shall be given,
not only to men then employed, but to all men who may subsequently be engaged in the trade or
calling in which the dispute has arisen. Thus the dispute may be whether preference shall be given
by those employing a certain class of labour to the members, present and future, of some association
of employees, or whether all members of that association, present and future, shall, if employed,
have the benefit of better terms and conditions, and so forth"[51]. The decision contemplates
nothing but advantages to members of the organization. If and when employed they will receive the
minimum wage and enjoy the conditions prescribed. In these respects the obligation of an award is
contingent on the employer engaging members. Whether preference to unionists may be awarded
against an employer who has never employed any members of the organization is a matter the
Justices do not discuss, but it would appear that Isaacs, Powers and Starke JJ. considered that it
might be so awarded. I do not think, however, that they can be taken so to have decided and
certainly there is no decision of the Court to that effect. But, in any event, the question in the present
case is a different one. It is not whether for its own members present and future the organization can
raise a dispute by demanding benefits consisting of preference in employment and of a minimum
wage and conditions of work if and when employed. It is whether, independently of the employment
of any of its members, the organization can dispute with an employer in reference to the terms and
conditions. upon which he will employ strangers; in other words, whether the organization can
obtain an award which imposes upon an employer who employs none of its members an immediate
obligation to pay his employees a prescribed rate and to afford them specified conditions. To sustain
an award in reference to the treatment of employees who are neither parties to a dispute nor
members of an organization which is a party, it must appear relevant to, and appropriate for, the
settlement of a dispute. Its relevance and appropriateness cannot be found in the preservation of an
existing state of co-operation or in the removal of a cause of apprehension among employees.
Because no co-operation and no employment exists in the case of the organization. The only
"relationship" between the organization and such employers appears to be that its members are, or
may be, qualified to do work which is performed in the course of operations carried on by the
employers. I am unable to see how a sufficient dispute can arise out of a demand by such an
organization. The connection which this fact establishes between the organization and the employer
is notional only and must rest in supposed mutual interests, not in co-operation. In degree it will
vary greatly according to the nature of the labour which the employer needs and that which the
organization supplies, and, also, with locality and other circumstances. If an employer relies on
skilled labour of which there is a restricted supply controlled by the organization, or if there is a
restricted market controlled by the employer for labour of the class represented by the organization,
the connection in interest may be practical, at any rate, if there are members of the organization
available at the place where the employer's undertaking is carried on. On the other hand, the
organization may relate to a calling or pursuit which plays an insignificant part in the operations of
the employer. The employment of one carpenter, one blacksmith, one electrician, one caretaker, or
watchman, in an undertaking concerned with altogether different industries, can hardly give
organizations relating to those crafts or pursuits a title to raise disputes by demanding in each case
that the one employee, although not a member, shall be paid a specified wage. Again, an
organization, with no members in a particular State or city and no branch there, can have but a
remote interest in the terms and conditions which members of another organization enjoy there.
Suppose an association of little more than a hundred members all situated in one State makes
demands throughout Australia upon employers in the industry. Or suppose such an association
makes demands in two States upon employers in an industry governed by industrial regulations
obtained by other organizations. In such cases the interest is intangible. But, in any case, the interest
lies at best, not in any actual industrial relationship, but in a hope, or perhaps expectation, of
establishing one. I am unable to adopt the view that, because members of an organization may be
qualified to perform functions in the course of the operations carried on by an employer who in fact
employs none of its members, a sufficient dispute can arise out of a demand by the organization
with reference to the employment of strangers to the organization by an employer who is a stranger
to it and to its members.

The disagreement as to industrial matters which is essential to a dispute involves some relation
between the parties that calls for a state of agreement or accord between them. When there is a
likelihood of an employer engaging members of an organization, the terms and conditions upon
which he shall do so is a question that may require settlement. The contingency gives a foundation
for a demand and refusal; at any rate so much is involved in the decision in the Burwood Cinema
Case[52]. But, when the subject is the terms and conditions of employment of non-members of an
organization, it is difficult to see what basis there can be for difference, disagreement, or dissidence,
unless some circumstances exist which make agreement or accord between the organization and the
employer a condition necessary or desirable for the normal conduct of some industrial operation.

So far from the case stated disclosing any circumstances calling for or making relevant an award
regulating the conditions of employment of persons not being members of the organization by the
employers in Adelaide, nothing but the most artificial and fictional elements for such a dispute
appear. There is nothing but the bare request that the log shall govern the wages and working
conditions of all persons employed in any branches of the named industry. Even in the case of
employers who have in their employment members of the claimant organization, such a bare
demand appears to me in itself to be insufficient evidence of jurisdiction to make an award
regulating the employer's relations with third parties. The employer's relations with non-members
become a legitimate subject of award only in so far as such a regulation fairly arises out of, or is
incidental to, the settlement of the mutual industrial relations of the members of the organization
and of the employers in dispute. A general request, such as that contained in the log, does not in
itself satisfy this requirement. The circumstances of the particular case may connect it with the
subsisting industrial relations. But, as it stands, it is a mere general request for what may be called a
common rule wherever the log is served; a request which, so far as appears, may be independent of
any situation which has arisen out of the employment of members of the organization.

On these grounds I would answer the questions in the case stated as follows:--In relation to each of
the organizations mentioned, the Commonwealth Court of Conciliation and Arbitration has no
jurisdiction to prescribe that the award shall be binding in the State of South Australia upon
employers in respect of employees not members of any such organizations where such employers do
not employ members of the relevant organization. The facts stated do not show that it has any
jurisdiction to do so where such employers do employ members of the relevant organization.

But, apart altogether from the reasons I have given, there is the independent contention that upon its
proper interpretation the Commonwealth Conciliation and Arbitration Act 1904-1934 confines the
awards, and the authority, of the Court, to regulating the conduct towards one another of the
disputants or those represented by them, and in such a way that the employment of strangers to the
dispute and the disputants cannot be made the subject of arbitral control. On the hearing of the
special case this in substance was the first objection made at the Bar to an affirmative answer to the
question submitted. In the view I have taken it is, in strictness, unnecessary for me to express my
opinion upon it, but I think that it is desirable that I should do so. The objection is based upon the
opinion adopted by Knox C.J., Gavan Duffy J., as he then was, and Starke J. in the case of
Amalgamated Engineering Union v. Alderdice Pty. Ltd.; In re Metropolitan Gas Co.[53] and
reiterated by those learned Judges in Amalgamated Clothing and Allied Trades Union of Australia v.
D. E. Arnall & Sons; In re American Dry Cleaning Co.[54]. That opinion is expressed in the former
case in the following passage:--"It is not necessary to determine what jurisdiction might be given to
the Court under the terms of the Constitution, because clear words would be necessary in the
Arbitration Act to endow the Court with powers and authority to specify the duty of employers to
employees who are not parties to the industrial dispute before the Court, nor members of nor
represented by the organization making the claim. Nowhere in the Act are any such words to be
found: always the power is to settle some dispute in which the parties are more or less defined or
capable of definition (cf. secs. 16, 18, 19, 19B, 23, 24, 26, 27, 29, 32, 37, 38 (i), (j), (p), (s), 38B
and 48), and to make orders and awards with respect to the reciprocal duties and obligations of the
parties appearing or represented in that dispute. The power in the Court to grant preference of
employment to unionists in no wise conflicts with this view: that is a power to prescribe the rights
and duties of the actual disputants as between themselves, though it may also be detrimental to the
interests of others"[55].

In the latter case their Honors said that further consideration of the matter had confirmed them in
the view and a request by counsel to be allowed to argue the question was refused. The Court was
composed of six members, but, as the Chief Justice's opinion would prevail in the event of the other
three Judges forming a contrary view, no purpose could be served by hearing an argument upon the
question unless one or more of the three Justices who had adopted the opinion was prepared to
reconsider it. Isaacs J., who was a member of the Bench, expressed his disagreement with it, but
Rich J. and myself, who were the other members, gave no opinion about the matter. We did,
however, point out that, having regard to the constitution of the Court in the earlier case[56] and to
the grounds given for the decision by the other members, the reasons of Knox C.J., Gavan Duffy and
Starke JJ. could not be said to be the ratio decidendi of the order made by the Court. In stating that
we refrained from investigating for ourselves the correctness of their Honors' interpretation of the
statute because as their opinion must in any event prevail it would be futile to do so, we gave as an
additional reason the fact that upon the contrary interpretation of the Commonwealth Conciliation
and Arbitration Act we should be faced with the formidable constitutional question whether, so
interpreted, the Act was within the power of Parliament. But, having now considered the question, I
have come to the clear opinion that the contrary interpretation of the Act is correct. I do not mean
that the Act contains anything which gives to any person, who is neither himself a party to the
dispute nor a member of an organization which is a party, any private right to the enjoyment of any
benefit under an award settling the dispute. But if the dispute is of such a character that, in the
judgment of the Court of Conciliation and Arbitration, an award is called for imposing upon a party
to the dispute duties the fulfilment of which involves a benefit to such a person, there is, in my
opinion, nothing in the statute disabling the Court from so awarding and no presumption against
giving to the general words, by which its power to settle disputes within its cognizance and to
determine them by award is conferred, an operation wide enough to enable it to do so. Suppose
employees in two States ceased work for the purpose of enforcing an objection to a practice on the
part of their actual employers of taking into their service persons whose labour is obtainable at rates
or upon terms or conditions which the employees regard as subversive or destructive of those which
otherwise are enjoyed in the industry. The subject of the dispute would be, I think, an industrial
matter within the natural meaning of that expression. But, further, the words "industrial matters" are
defined to include a lengthy list of particular matters many of which would in themselves cover it.
There is nothing to restrict the subjects of disputes which fall within the jurisdiction given by sec.
18 and within the cognizance of the Court under sec. 19. If the Court considered that to settle such a
dispute it was desirable to require the employers to discontinue the practice and to give all
employees the same or similar rates of pay and terms and conditions of employment, its statutory
powers are wide enough to make an award doing so. It may well be that persons who are not
members of the organization disputing and who did not themselves dispute would obtain no rights
under the award and could not enforce any of the duties it imposed. The reason for the award would
be to compose the difference between the disputants, and it would be an award "with respect to
reciprocal duties and obligations of the parties appearing or represented in that dispute." But one of
the reciprocal duties would be to employ strangers only on the same terms as those parties. The
question is entirely one of statutory construction. It relates to the limitations thought to be imposed
by the Act of Parliament upon the powers of the Commonwealth Court of Conciliation and
Arbitration. Those limitations were ascribed to an implied intention either discoverable in the frame
of the legislation or to be presumed. They were in no way attributed to the nature or ambit of the
legislative power. In Long v. Chubbs Australian Co. Ltd.[57] the Court saw in the statute positive
indications that it contemplated the regulation of apprenticeship by the Commonwealth Court of
Conciliation and Arbitration. Accordingly, because the view expressed by Knox C.J., Gavan Duffy
and Starke JJ.[58] was based upon an implication or presumption of statutory interpretation, the
Court thought that, quite consistently with that view, it might decide that in the special case of
apprentices the supposed statutory obstacle was negatived, without considering whether it existed in
other cases. But, in my opinion, there is no such obstacle discoverable in the legislation. I, therefore,
do not base my conclusion upon the provisions of the Commonwealth Conciliation and Arbitration
Act 1904-1934, but upon the limitations arising from sec. 51 (xxxv.) of the Constitution.

McTiernan J.

Demands were severally made by a number of the organizations of employees whose names are in
the title of the case, upon the employers in the industries in which their members were working, to
grant all their employees in such industries respectively, whether members of the organization
making the demand or not, specified wages and conditions of employment. In some cases a demand
was made by an organization on employers who did not have, and at no material time have had, any
members of the organization in their employment. In other cases the employers had in their
employment both members and non-members of the organization making the demand. The question
arises, whether the Commonwealth Court of Conciliation and Arbitration, in proceedings which
have ensued following upon the non-compliance of the employers with these demands, can by
award impose an obligation upon employers in either or both of the last above-mentioned classes to
pay the rate of wages and grant the conditions prescribed by the award, to employees who are not
members of any of the organizations respectively making the demands. All the organizations, and
all the employers, but not the non-unionists, are parties to the proceedings in the Court of
Conciliation and Arbitration. Its jurisdiction is limited to the prevention and settlement, pursuant to
the Commonwealth Conciliation and Arbitration Act, of all "industrial disputes" (sec. 18). An
"industrial dispute" means an industrial dispute extending beyond the limits of any one State, and
includes, inter alia, any dispute as to "industrial matters" (sec. 4). No point is made that there was
not an inter-State dispute. The definition of "industrial matters" is also in sec. 4.
Counsel who challenged the jurisdiction of the Court to make the proposed award relied upon
Alderdice's Case[59] and Arnall's Case[60]; counsel who supported the jurisdiction of the Court
relied upon Long v. Chubbs Australian Co. Ltd.[61]. The view which prevailed in Arnall's Case[62]
was founded on the following passage in the judgment of Gavan Duffy J. (as he then was) and
Starke J. in Alderdice's Case[63]:--"It is not necessary to determine what jurisdiction might be
given to the Court under the terms of the Constitution, because clear words would be necessary in
the Arbitration Act to endow the Court with powers and authority to specify the duty of employers
to employees who are not parties to the industrial dispute before the Court, nor members of nor
represented by the organization making the claim." This judgment, with which Knox C.J.
agreed[64], also declared:--"The power in the Court to grant preference of employment to unionists
in no wise conflicts with this view: that is a power to prescribe the rights and duties of the actual
disputants as between themselves, though it may also be detrimental to the interests of others"[65].
In Long v. Chubbs Australian Co. Ltd.[66] it was held to be within the jurisdiction of the Court of
Conciliation and Arbitration to prescribe by an award to which a union of employees and employers
were parties that minors who were neither parties to the award nor members of the union should not
be engaged by those employers in certain specified occupations, except subject to certain conditions.
The authority of the Court of Conciliation and Arbitration to impose this obligation on employers
who were parties to the award was found in the definition of industrial dispute and the reference to
apprenticeship in sec. 25C. The part of the definition of industrial matters relied upon was as
follows: "The employment ... or non-employment ... of persons of any particular ... age, or being or
not being members of any organization, association, or body." In Long v. Chubbs Australian Co.
Ltd.[67] the Court therefore did not find it necessary to diverge from the principle laid down in
Alderdice's Case[68] and adopted in Arnall's Case[69], because in the provisions of the Act to
which it referred "clear words" may be found giving jurisdiction to impose the obligation upon
employers with respect to apprentices who were neither parties to the proceedings nor members of
the union.

In the present case we have been invited to reconsider the principles laid down in Alderdice's
Case[70] and Arnall's Case[71]. I concur in the opinions of other members of the Court that the
passage already quoted from Alderdice's Case[72], and which was the basis of the view which
prevailed in Arnall's Case[73], too narrowly confines the jurisdiction vested by the statute in the
Court of Conciliation and Arbitration. The true view of the extent of the jurisdiction conferred by
Parliament on the Court is expressed in the judgment of Isaacs J. (as he then was) in Arnall's
Case[74]. In the Burwood Cinema Case[75] Rich J. took the view: "The Arbitration Court is limited
in the first place by the statute, but the statute, both by its general scheme and its specific language,
appears to me to deal with industrial disputes as coextensive with industrial disputes in the
Constitution." Hence, if the Court of Conciliation and Arbitration has no jurisdiction to make an
award binding the employers whose employees do not include any members of an organization
making a demand, it is not because the provisions of the Act conferring jurisdiction are not wide
enough to authorize the Court to make an award restricting the freedom of the employers to make
contracts with persons who are neither parties to the proceedings nor members of an organization
which is a party. But it is essential to the jurisdiction that the demand and refusal should have given
rise to an industrial dispute. Now it is not every dispute between a union and a group of employers
as to the minimum rate of wages which the employers should agree to pay persons who are not
members of the union that the Court of Conciliation and Arbitration has jurisdiction to settle by
award. For example, the refusal of a number of money-lenders to pay their clerks the rate of wages
which an organization of shearers demanded should be paid, might produce a disagreement between
these employers and the union on that question, but it would not be an industrial dispute which the
Court of Conciliation and Arbitration has jurisdiction to settle. The demand does not touch or
concern the interests of the members of the organization as employees. The dispute could not be
said to arise out of an industrial relationship between the shearers' union and the money-lenders.

In the present case the demands, which were not complied with by the employers, were made by the
union on behalf of employees in the same industrial occupation or calling as the non-unionist
employees. The primary object of each union in making the demand was to obtain benefits for its
members as employees in the industry in which they were working. In the Burwood Cinema
Case[76] Isaacs J. stated the question which arose for decision in these terms:--"The question is
whether, upon the true construction of the Constitution and the Commonwealth Conciliation and
Arbitration Act, an employer who employs no union labour whatever can be a party to an industrial
dispute with an organization of employees, or whether by simply refusing to employ a single
unionist he can, so far as his industrial operations are concerned, entirely exclude the Federal
power." The Court held that such an employer could be a party to an industrial dispute. In that case
it does not appear that the organization did more than to demand of the employers that the rates and
conditions should be granted to members of the organization. In my opinion it needs no extension of
the principle in that case to answer the questions in the present case in the affirmative. For, as Starke
J. said in the Burwood Cinema Case[77], "an industrial dispute is constituted, both historically and
in point of fact, where a difference exists between workmen themselves, or perhaps between
employers themselves, or between employers or classes of employers, and workmen engaged in
some common industry or calling, concerning industrial conditions affecting a class so engaged and
not merely affecting individual and definite members thereof. An industrial relationship, and not a
contractual relationship, is all that is necessary to constitute an industrial dispute. The nexus is to be
found in the industry or in the calling or avocation in which the participators are engaged." Again,
Isaacs J. (as he then was) said:--"Industrial disputes certainly include conflicts of greater or less
intensity among those co-operating in a given industry with reference to the conditions of their co-
operation. Co-operation in the industry is not from the standpoint of the Constitution restricted to
actual contractual relations. Every employer that enters the competitive field of the industry is co-
operating to carry it on, in the broader sense in which the people of the Commonwealth are
interested. That sense is national service and supply, the interruption of which is the evil dealt with
in pl. XXXV. So also is every employee a co-operator in the same sense, for his labour is not to be
looked on as a mere commodity, as if he were a machine, animate like the horse or inanimate like a
steamengine. The nexus of all the co-operators is the industry itself, irrespective of how its
ownership or its operative arrangements are subdivided. If we confine our attention for the moment
to disputes between employers and employed, we have to visualize the disputants respectively as
portions of groups representing capital and labour. Employer and employee are terms which denote,
not individuals contracting with each other whose industrial relations arise out of and are limited by
their specific contracts, but membership of a group with which the individual has identified himself
in relation to a given industry"[78].

Employers in an industry, whether they employ any member of a union of employees or not, are
associated through the industry with the union and its members. This industrial relationship exists
between those employers, their employees, the members of the union and their employers. The
union and its members have an interest depending on their connection with the industry, in the
settlement of the rate of wages and conditions of employment which should be provided for in the
agreements of the employers, even those who employ only non-unionists, with all employees who
exercise in the industry the trades and industrial avocations followed by members of the union. The
interest of the unionists may properly give rise to a demand by them for specified rates and
conditions to be granted to all employees, both unionists and non-unionists, so that the former will
not be excluded from the industry or the latter preferred when employees are being engaged or
discharged. The employers have an interest residing in their participation in the industry in the
maintenance of their right to engage non-unionist employees on their own terms rather than on the
terms demanded by the union whose members are employed in the industry. Employers who give
the same rates of pay and conditions of employment to both unionists and non-unionists have a
material industrial interest in the observance by other employers in the industry of a similar practice
in case of employees following similar trades or industrial avocations. Refusal to comply with
demands directed to the maintenance of these respective interests marks the outbreak of conflict
between them, and shows that there is disagreement between union and employers or between
employers and employers, as the case may be, as to which of these respective industrial interests
should prevail or as to the terms upon which they should be reconciled. It follows that the
disagreement is as to industrial matters and non-compliance with any such demand gives rise to an
industrial dispute. This dispute relates to industrial matters and is an industrial dispute within the
meaning of the Act. It follows that, for the settlement of that dispute, the Court of Conciliation and
Arbitration may make an award imposing restrictions, which are appropriate and relevant to the
settlement, upon the freedom of the employers to engage non-unionists upon any terms as to wages
and conditions of employment which might otherwise be agreed between them. The award would
not give any rights to the non-unionists: it would create duties in the employers, who do not employ
any unionists, to the union and its members. An affirmative answer to the questions in the case
neither involves a breach of the principle of arbitration as embodied in the Act, nor asserts any
power in the Court to make a common rule (see Long v. Chubbs Australian Co. Ltd.[79]).

In the case of the Federated Moulders (Metals) Union of Australia, the claim is upon its fair
construction limited to the members of the union. In this case the questions should be answered: No,
but in all the other cases the answer to both questions should be: Yes.

Questions answered as follows:--(i.), (ii.), (iii.), (iv.)--In case (a): Yes; In case (b): Yes. (v.)--In
case (a): No; In case (b): No. No order as to costs.

Solicitors for South Australian employers, Baker, McEwin, Ligertwood & Millhouse.

Solicitor for the State of South Australia, A. J. Hannan, Crown Solicitor for South Australia.

Solicitors for the Metal Trades Employers Association and other New South Wales employers,
Salwey & Primrose.

Solicitors for the Federated Ironworkers' Association and the Electrical Trades Union, Abram Landa
& Co.

Solicitor for the Commonwealth, W. H. Sharwood, Commonwealth Crown Solicitor.

[1] [1920] HCA 51; (1920) 28 C.L.R. 66.

[2] [1925] HCA 7; (1925) 35 C.L.R. 528.

[3] [1928] HCA 38; (1928) 41 C.L.R. 402.

[4] [1929] HCA 35; (1929) 43 C.L.R. 29.

[5] (1928) 41 C.L.R., at p. 435.
[6] (1929) 43 C.L.R., at p. 52.
[7] [1935] HCA 11; (1935) 53 C.L.R. 143.
[8] [1928] HCA 38; (1928) 41 C.L.R. 402.
[9] (1935) 53 C.L.R., at p. 151.
[10] (1929) 43 C.L.R., at p. 52.
[11] [1928] HCA 38; (1928) 41 C.L.R. 402.
[12] [1929] HCA 35; (1929) 43 C.L.R. 29.
[13] [1929] HCA 35; (1929) 43 C.L.R. 29.
[14] (1935) 53 C.L.R., at p. 151.
[15] [1910] HCA 53; (1910) 11 C.L.R. 311.
[16] [1910] HCA 53; (1910) 11 C.L.R. 311.
[17] (1923) 32 C.L.R., at p. 439.
[18] (1931) 45 C.L.R., at pp. 417 (Gavan Duffy C.J. and Starke J.), 421 (Rich J.), 428 (Dixon J.),
435 (Evatt J.), and 448 (McTiernan J.).
[19] [1928] HCA 38; (1928) 41 C.L.R. 402.
[20] (1919) 27 C.L.R., at pp. 212-214.
[21] [1905] HCA 20; (1905) 2 C.L.R. 509, at p. 510.
[22] [1925] HCA 7; (1925) 35 C.L.R. 528.
[23] (1928) 41 C.L.R., at pp. 411, 435.
[24] (1928) 41 C.L.R., at p. 435.
[25] (1928) 41 C.L.R., at p. 435.
[26] [1928] HCA 38; (1928) 41 C.L.R. 402.
[27] [1929] HCA 35; (1929) 43 C.L.R. 29.
[28] [1935] HCA 11; (1935) 53 C.L.R. 143.
[29] [1935] HCA 11; (1935) 53 C.L.R. 143.
[30] [1935] HCA 11; (1935) 53 C.L.R. 143.
[31] (1928) 41 C.L.R., at pp. 411-428.
[32] [1928] HCA 38; (1928) 41 C.L.R. 402.
[33] [1929] HCA 35; (1929) 43 C.L.R. 29.
[34] [1935] HCA 11; (1935) 53 C.L.R. 143.
[35] [1928] HCA 38; (1928) 41 C.L.R. 402.
[36] [1929] HCA 35; (1929) 43 C.L.R. 29.
[37] [1914] HCA 32; (1914) 18 C.L.R. 224.
[38] (1908) 6 C.L.R. 309.
[39] (1908) 6 C.L.R., at p. 359.
[40] [1930] HCA 1; (1930) 42 C.L.R. 527, at pp. 552, 553.
[41] [1931] HCA 35; (1931) 45 C.L.R. 409.
[42] [1932] HCA 3; (1932) 47 C.L.R. 22.
[43] [1935] HCA 17; (1935) 53 C.L.R. 90.
[44] [1914] HCA 36; (1914) 18 C.L.R. 273.
[45] (1908) 6 C.L.R., at p. 360.
[46] (1923) 32 C.L.R., at p. 452.
[47] (1923) 32 C.L.R., at p. 441.
[48] [1925] HCA 7; (1925) 35 C.L.R. 528.
[49] (1925) 35 C.L.R., at p. 542.
[50] [1914] HCA 36; (1914) 18 C.L.R. 273.
[51] (1925) 35 C.L.R., at p. 548.
[52] [1925] HCA 7; (1925) 35 C.L.R. 528.
[53] [1928] HCA 38; (1928) 41 C.L.R. 402.
[54] [1929] HCA 35; (1929) 43 C.L.R. 29.
[55] (1928) 41 C.L.R., at p. 435.
[56] [1928] HCA 38; (1928) 41 C.L.R. 402.
[57] [1935] HCA 11; (1935) 53 C.L.R. 143.
[58] [1928] HCA 38; (1928) 41 C.L.R. 402.
[59] [1928] HCA 38; (1928) 41 C.L.R. 402.
[60] [1929] HCA 35; (1929) 43 C.L.R. 29.
[61] [1935] HCA 11; (1935) 53 C.L.R. 143.
[62] [1929] HCA 35; (1929) 43 C.L.R. 29.
[63] (1928) 41 C.L.R., at p. 435.
[64] (1928) 41 C.L.R., at p. 411.
[65] (1928) 41 C.L.R., at p. 435.
[66] [1935] HCA 11; (1935) 53 C.L.R. 143.
[67] [1935] HCA 11; (1935) 53 C.L.R. 143.
[68] [1928] HCA 38; (1928) 41 C.L.R. 402.
[69] [1929] HCA 35; (1929) 43 C.L.R. 29.
[70] [1928] HCA 38; (1928) 41 C.L.R. 402.
[71] [1929] HCA 35; (1929) 43 C.L.R. 29.
[72] (1928) 41 C.L.R., at p. 435.
[73] [1929] HCA 35; (1929) 43 C.L.R. 29.
[74] (1929) 43 C.L.R., at pp. 45, 46.
[75] (1925) 35 C.L.R., at p. 547.
[76] (1925) 35 C.L.R., at pp. 535, 536.
[77] (1925) 35 C.L.R., at pp. 548, 549.
[78] (1925) 35 C.L.R., at pp. 539, 540.
[79] (1935) 53 C.L.R., at pp. 150, 151.

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