Australian Boot Trade Employes' Federation Claimants; and Whybrow and Co [1910] HCA 53

Australian Boot Trade Employes' Federation Claimants; and Whybrow and Co [1910] HCA 53 - HCA 1910 case summary — Zoe

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jation and arbitration - not all conciliation and arbitration, but such only as may be employed for the prevention and settlement of the specified class of industrial disputes. The maxim expressio wnius est exclusio alterius applies -soas . . . to forbid any intrusion into the field of the domestic concerns of the States further than may be necessary for the plenary exercise of the power thus limited. "« Arbitration ' is a term which, taken by itself, connotes a process for the settlement of disputes by submitting them to the decision

of a tribunal selected by the parties or accepted by them, and an agreement by both to be bound by the decision, which is com- monly called the award. . . . Beyond all question the award is a judicial determination. . . . The tribunal, then, being judicial, its office is to decide questions of fact, and in respect of such conclusions to declare or apply existing laws, save so far as either party may voluntarily and lawfully renounce the benefit of them. It is resorted to simply and solely because the parties cannot come to an agreement on the questions submitted, and therefore desire that the tribunal should make an agreement for them, by which they mutually consent beforehand to be bound. : Whatever they can lawfully agree to, he may lawfully award. . . . The office of an arbitrator is like that of a __ Judge to the extent that it is for him to declare the law and not tomakeit. . . . But, assuming as we may, that the power in _ sub-see. xxxv. extends to the establishment of compulsory arbi-
tration, is the judicial character of the tribunal diminished or is _ any non-judicial or legislative character or function added to it if _ the compulsory power is given? Clearly, no. The arbitrator's authority is no less purely judicial than it would be if the com- _ pulsory power were absent, and nothing was advanced in support : Sat any other conclusion. _ + "The same considerations necessarily apply where the arbi- trator, instead of being chosen by the parties, is appointed by or : 'under a Statute." In the Bootmakers' Case No. 2 (1),1 said: "' Conciliation and arbitration for the prevention and settlement of industrial _ disputes' mean plainly, to my mind, such conciliation and arbitra-

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the power at its widest, because it is on the assumption of its being effectually exercised that its constitutionality must be tested. In practice, no doubt, the President would be put in motion ordinarily by an application from one or both parties to the award, and, before coming to a conclusion, he would probably take care that, as far as was practicable, the most important at least of the interests affected would be represented before him. He would also, no doubt, when necessary, exercise freely the discretion allowed him of attaching limits and conditions to the operations of the common rule, But, in answering the learned President's question, we are not dealing with the way in which the President will exercise the power in particular cases, but with the nature and extent of the power itself. It is obvious on the face of these provisions that their real effect is to confer a law-making power, and not an arbitral power, on the President of the Federal Arbitration Court. That becomes still more obvious when one considers the circumstances in which the jurisdiction may be brought into operation. A minority only of the persons engaged in the industry may have been parties to the original industrial dispute, the remainder of employers and employés may be not only not in dispute, but entirely satisfied with the existing conditions of employment. True it is that an arbitral tribunal makes the declaration, and makes it after inquiry, but the declaration has in it no quality of arbitral adjudication. It isnot a judicial settlement of matters in difference between parties to a dispute, it need have no other basis than the determination of the learned President, that in order to secure the fair working of the award between the parties bound by its provisions, and the main- tenance of industrial peace throughout the trade, it is necessary to impose, on all persons engaged in the industry, the conditions of employment settled by the award. Whether or not the Com- monwealth Parliament had authority to invest the Federal Arbi- tration Court with such a power depends entirely upon what is the right interpretation of sub-see. xxxv. of sec. 51 of the Con- stitution. The sub-section has, in several cases, been considered by this Court, but the precise question now submitted has never before been determined. It will be well to recall the language of the sub-section, Quoting only material words it is

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as follows : - " Conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State." Before considering the words of the sub- section relied on, I shall dispose of Mr. Arthur's argument that the Commonwealth Conciliation and Arbitration Act must be read as enabling the common rule to be made only when the original dispute extends throughout the industry. He contends that, in that state of things, it may happen that some only of the disput- ants on each side may bring their difference before the Court, and that the authority to apply the award, made in settlement of their difference, to all persons engaged in the industry, is merely a procedure for the effective settlement of the whole dispute. The contention is of no value in the present controversy, for it does not give any substantial effect to the provisions we are testing. They are clearly unnecessary, if the end which they are designed toachieve may be equally well achieved without them, by making all the disputants parties to the arbitration. The power given by the Act, and sought to be exercised in the present case, goes far, as I haye explained, beyond any procedure in an industrial arbitration. The objection to jurisdiction is fundamental and cannot be explained away by any such ineffective construction of the Arbitration Act. I shall now consider the sub-section of the Constitution within which the power, if it exists at all, is to be found. It must be conceded that the making of the common rule is not an exercise of the power to settle industrial disputes by arbitration. The making of the order or declaration is in no way a settlement of any industrial dispute. Nothing therefore can be found in the word "settlement" which will help the applicants. The only expression on which, when taken with its context, any reasonable argument can be founded, is the word " prevention" taken in connection with the words "industrial disputes." Mr. Duffy's very able argument in support of that contention may, as Tapprehend it, be stated in substance as follows : - " The language under consideration ought to be liberally interpreted. The mean- ing of a sub-section of the Constitution cannot be determined merely by an appeal to technical grammatical rules. The con- struction which would appropriate the word 'conciliation' to 'prevention' and the word 'arbitration' to 'settlement' is too

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narrow. There may be arbitration for the prevention as well as for the settlement of industrial disputes, and prevention may be operative in two ways. 'The effective settlement of each dispute, as it arises, tends to prevent the recurrence of further disputes in the same trade. Again, prevention may be accomplished by the arbitral adjustment of conditions of employment which, if left unadjusted, would be likely to lead to industrial disputes. The authority to make a common rule, conferred by the Act, amounts to no more than authority to make that adjustment. An award regulating industrial conditions in a trade, and yet not binding on all persons engaged in it, is likely to produce discontent amongst persons not bound, and may operate harshly on em- ployers obliged to fulfil new and onerous obligations, from which their competitors in the trade, not under the award, are free. If the Court sees that the conditions thus produced must, sooner or later, lead to industrial disputes, it is enabled by means of the provisions under consideration to intervene before any industrial dispute has developed, inquire into all the circumstances, ascer- tain how persons, not under the original award, are likely to be affected by the making of the common rule, and, if it thinks fit, make an order and declaration bringing industrial conditions throughout the trade into uniformity." That is, I think, a fair statement of Mr. Duffy's argument and I am prepared to assent to much of what he has advanced. The broad interpretation of the Constitution suggested has a great deal to commend it, and many good reasons have been urged by him in support of the view that the sub-section authorizes the use of arbitration for the purpose of preventing industrial disputes from arising, as well as for settling those that have arisen. That may all be granted, yet the applicants' contention must fail when the com- mon rule provisions are brought to the test of even that inter- pretation. As this Court has already determined on several occasions, the sub-section carries on the face of it one hard and fast limit to the exercise of the authority it confers. The power, whether it is to settle, or to prevent, industrial disputes, must be exercised by way of conciliation or arbitration, and can be exer- cised in no other way. An essential condition of its application must therefore be the existence of conditions in which arbitration

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can be applied. At the time when the Constitution was passed the term "arbitration" had expanded in meaning so as to include methods and principles of adjudication, differing in many respects from those connoted by the term as known to the common law. The tribunal was no longer necessarily constituted by act of the parties, nor for the adjustment of each dispute as it arose. It might be a permanent public tribunal, appointed by Government, for the arbitral adjustment of differences of a special kind. Parties between whom such differences existed were compelled to resort to it, and were bound by its awards. The legislation of Great Britain and of some Australian Colonies, and of New Zealand, in force before the passing of the Constitution, has been referred to by this Court, in several cases, to illustrate these changes in the meaning of the word, with relation to industrial disputes. But whatever incidents or attributes these various legislatures may, in framing their arbitral systems, have added to, or taken from, the system of adjudication previously known to the common law as arbitration, neither in that legislation nor elsewhere is there to be found any meaning of the term which would justify its being used to describe a method of adjusting industrial rights, which is wanting in certain elemental incidents and attributes which the word arbitration in itself must neces- sarily connote. One can have no mental conception of arbitration without parties in difference over some matter capable of judicial adjustment by an arbitrator. The exercise of an authority to impose conditions of employment upon employers and employés between whom there exist no such differences, even though it may be exercised by a standing arbitral tribunal, is not and cannot be an application of arbitral power. No fair reading of sub-sec. xxxy. of sec. 51 of the Constitution can justify the Parliament of the Commonwealth in conferring such an authority on the Federal Arbitration Court. For these reasons I am of opinion that the answer of this Court to the submission of the learned President must be that the common rule provisions are unconstitutional and void.

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" arbitration," unless the inherent nature of that word is incon- sistent with such application. I say that result has nothing but the inherent nature of the word to depend on, because every other circumstance is opposed to it. The verbal collocation and grammatical arrangement of the sub-sections are against it, as mere inspection demonstrates. Then it is equally obvious that the raison @etre of the power is the maintenance of the peaceful and orderly conditions of industry so far as it affects the broader field which is brought within the cognizance of the national authority. In previous cases - as for instance in the Bootmakers' Case, No. 1 (1) - I have indicated my view that, from the stand- point of the Constitutional power, the immediate combatants in an industrial struggle are not the main objects. of regard, butit is the undisturbed continuance of national industries, affecting the general population, that constitutes the substantial groundwork of the power. If that be a correct view of the situation "the - prevention and settlement of industrial disputes" is the end marked out for attainment, and conciliation and arbitration are the designated means to that end. Reason therefore points to the utilization of either or both of these means, towards the attainment of either prevention alone or settlement alone, or whatever of these may be possible according to the discretion and - will of Parliament. Unless that view is to prevail, persuasion only is permissible until hostilities have been declared, and perhaps some damage to all concerned - combatants and non- combatants alike ; and then when the difficulty of settlement is naturally greater, and it may be loss which cannot be compen- sated for, has occurred, the Commonwealth may interpose its - restraining authority and quell the disturbance. A construction which so restricts and fetters the discretion of Parliament, as it appears on the primd facie interpretation of the enactment, and which leaves open such disastrous results, can only be admissible if, as I say, the inherent nature of what is termed "arbitration" imperatively demands it.

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matical foree, and the true ordinary legal signification of the language of the sub-section. The first ground of objection to the common rule consequently fails. The next contention is this: assuming that arbitration like

eonciliation applies even to cases of difference not yet matured into disputes where the issues are categorically stated, yet arbitration is not, any more than is conciliation, an intelligible conception except where some difference can be perceived, and expressed in terms, however general, between the parties who are to be affected by the decision. I agree with that. The Constitu- tion leaves to Parliament the most absolute choice as to the form of tribunal and its procedure; the conciliating and arbitrating organ may be a Court, or a layman, a committee of strangers, or 4 combination of representatives of the parties concerned, its method of action may be voluntary, or compulsory ; unanimity or majority of opinions may control its decisions, further there may be light or heavy sanctions for non-compliance, or there may be none at all; notice may be given personally or by advertisement: all this is for the will and discretion of Parliament, but a limit is fixed beyond legislative control - the process must be either conciliation or arbitration or both, and one prime essential both of reconcilement by persuasion or influence, and of authoritative settlement is that there must be some disagreement, some want of harmony calling for the exercise of those offices. A want of agreement in respect of some industrial matter may _ be unmistakeably manifested, although in circumstances of time, manner and subject matter which evoke no present conflict nor any fear of immediate rupture. Again, a request for an advance of wages six months hence, or an intimation to consider an increase of hours next year, might not present to any reasonable being the appearance of any probable controversy whatsoever. Men may suggest to each other, may discuss, may negotiate in terms which afford no trace of opposition. But though no arbitrary rule can be formulated to distinguish between that case and a real disagreement, it is evident that a real disagreement may at any moment supervene. 'The discussion may assume a form and a consistency which indicates some fixed desires on one side not acceded to by the other.

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I do not take the view presented to us that the Federal Parlia- ment cannot legislate under sub-see. xxxv. except for defined existing disputes between identified or identifiable parties. Sub- sec. Xxxxy. is not technical; it is couched in vague and popular terms, and it leaves to the Federal Parliament the function of saying under what circumstances and in what manner the power of conciliation and arbitration is to be exercised. If the power were given to the Parliament to make laws with respect to sanitary precautions for the prevention of epidemics, a Federal Act could prescribe precautions and enforce them, although no person be in fact suffering from any epidemic disease. It seems to me that, in this argument on behalf of the opponents of the common rule, the needs of the Court in making an effective order are treated as if they were necessary limitations on the power of Parliament. An order or award cannot be made except as against identified or identifiable parties ; but it by no means follows that there cannot be steps taken for conciliation, or even for arbitra- tion, before the dispute has become definite, and before the persons concerned in the industry have taken definite stands or made definite claims. No one who is at all familiar with the genesis of great industrial disputes can be ignorant of the general uneasiness, unrest, the individual grumbling, the dissatisfaction, often indefinite, which precede the ultimate quarrel ; and to this stage, before matters have come to a head, the power of concilia- tion or arbitration for prevention seems to be directly applicable (so far as the Constitution is concerned). No doubt, it would be difficult for a Court, under the Act as it stands, to bind persons by an order or award unless they come before it as claimants or respondents on a definite claim ; but it is for Parliament to say how persons are to be notified of proceedings, and what persons are to be bound by an award. This is a mere matter of pro- cedure, to be determined by the Act; it is not a matter affecting jurisdiction under the Constitution. The ordinary meaning of the word "prevention" involves the warding off of something

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be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the Constitu- tion, are constitutional." It is quite true that if a provision is consistent with the letter and spirit of the Constitution, it is constitutional; but the truth does not aid us much. Looking, however, at sub-sec. xxxix. of our own Constitution, we find words which ought to be simple enough - power to make laws with respect to "matters incidental to the execution of any power vested by this Constitution in the Parliament." We are to examine first the express power; and the express power is not a power to prevent or settle industrial disputes, but a power to make laws with respect to conciliation and arbitration (for the prevention, &c.); and any power to be implied must be a power incidental to conciliation and arbitration. It is not enough that it should be incidental to, or appropriate to, or useful in aid of, the prevention or settlement of industrial disputes. The rule, as laid down by Lord Selborne L.C. in Small v. Smith (1), is as follows : - " When you have got a main purpose expressed, and ample authority given to effectuate that main purpose" [here the main purpose expressed is conciliation and arbitration, &c.], "things which are incidental to it, and which may reasonably and properly be done and against which no express prohibi- tion is found, may and ought, primd facie, to follow from the authority for effectuating the main purpose by proper and general means." A sound provision for a minimum wage in an Act of Parliament might be a great aid to the prevention of disputes, and conducive to industrial peace; but it could hardly be con- tended that a power to enact a law for a minimum wage is reasonably incidental to the power to make laws with respect to conciliation and arbitration. Nothing is incidental to that power which is not directly aimed at the precise method of dealing with industrial disputes - conciliation and arbitration - which the Constitution contemplates.

At a glance

Court

Decision date

Before

Source

Judgment (204 paragraphs)

is reconciliation effected by some one not a party to the dispute - a

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