A summons has been issued out of the Metropolitan District Court, Sydney, on behalf of the Australian Postal Linemen's Union against the Postmaster-General in respect of a claim by the Union of £20 for a penalty arising out of an alleged breach by the Postmaster-General of an award of the Commonwealth Court of Conciliation and Arbitration in a plaint made in an industrial dispute between the Union and the Postmaster-General.

Service of the summons has been accepted on behalf of the Postmaster-General.

It appears that in form the action is one against the Postmaster-General by the Union for a penalty for a breach of an award. The action is brought in pursuance of a right believed to be given by section 44 of the Commonwealth Conciliation and Arbitration Act 1904-1918, and advice is desired as to whether, on behalf of the Postmaster-General, it should be objected or not-

1. that the Postmaster-General is not amenable to the jurisdiction of the Court;
2. that the Court has no jurisdiction to hear and determine the action against the Postmaster-General;
3. that the Court has no power to impose a penalty against the Postmaster-General;
4. that the relation of employer and employee does not exist between A. and the Postmaster-General; and
5. that the Postmaster-General as representing the Crown is not bound by the criminal law or the provisions of section 44 or any other penal provisions of the Commonwealth Conciliation and Arbitration Act.

The award in this case was made, not under the Commonwealth Conciliation and Arbitration Act 1904-1918, but under the Arbitration (Public Service) Act 1911. That Act does not specifically incorporate the provisions of the Commonwealth Conciliation and Arbitration Act. It defines an organisation as meaning an organisation within the meaning of the Commonwealth Conciliation and Arbitration Act (section 2); provides that employees in the Public Service shall be deemed to be employees in an industry within the meaning of that Act; permits an association of less than 100 employees in the Public Service of the Commonwealth under certain circumstances to be registered under that Act, and provides that an organisation of employees in the Public Service may submit to the Commonwealth Court of Conciliation and Arbitration by plaint, claims relating to wages, etc., and that thereupon the Court shall have cognisance of the claim as if it were an industrial dispute within the meaning of that Act. The Arbitration (Public Service) Act 1911 then proceeds to confer on the Court certain powers and [by section 8] provides that:

The Public Service Commissioner, and the Permanent Heads and Chief Officers of the several Departments of State, and all persons in the Public Service of the Commonwealth, shall comply with the provisions of any award or order of the Court made in pursuance of this Act.

I have already pointed out that the Arbitration (Public Service) Act 1911 does not specifically incorporate any of the provisions of the Commonwealth Conciliation and Arbitration Act 1904-1918 and I am of opinion that it does not impliedly incorporate any of those provisions, excepting possibly the provisions as to registration of associations as organisations; but it is, I think, clear that the Arbritation (Public Service) Act 1911, while by section 8 it throws on certain persons an obligation to comply with awards made by the Court under the Act, does not incorporate the provisions of the Commonwealth Conciliation and Arbitration Act relating to the enforcement of awards and to the imposition of penalties for non-enforcement.

I am, therefore, of opinion, as regards questions (1), (2), (3) and (5), which have been submitted for advice, that-

1. in this proceeding the Postmaster-General is not amenable to the jurisdiction of the Court;
2. the Court has no jurisdiction to hear and determine the action against the Postmaster-General;
3. the Court has no power to impose a penalty against the Postmaster-General; and

5. the Postmaster-General, as representing the Crown, is not bound by the criminal law or the provisions of section 44 or any other penal provisions of the Commonwealth Conciliation and Arbitration Act, and I am of opinion that it would be desirable to take these objections on the hearing.

As regards question (4)-whether the relation of employer and employee exists between A. and the Postmaster-General-I do not think this objection is one which should be taken. While A. is not, perhaps, an employee of the Postmaster-General, but an employee of the Commonwealth, he is, for all practical purposes, under the control of the Postmaster-General.

[Vol. 16, p. 336]