Australian Commonwealth Shipping Board v Federated Seamen's Union of Australasia [1925] HCA 27

Australian Commonwealth Shipping Board v Federated Seamen's Union of Australasia [1925] HCA 27 - HCA 1925 case summary — Zoe

[27]

stated that I was of opinion that I had no power to determine such award during such period on the grounds on which such determination was asked or at all. I therefore declined to proceed further with the said matters without securing the opinion of the High Court. _ 9. I further announced, as the fact is, that, in the event of it being held by the High Court that there was power in the above Court and in me as Deputy-President thereof to cancel the registration 'of the said Union, the question as to whether such cancellation has or has not the effect of disentitling members of the Union to the benefits of the award would, in my mind, be a material fact to be considered in deciding the manner in which the discretion to grant or refuse such cancellation should be exercised, and that, in view 'of the dicta in Waterside Workers' Federation; Ex parte Attorney- General of the Commonwealth (1), the question should be authoritatively decided before I proceeded with the case. a0. I further stated, as the fact is, that doubts have arisen as to whether it is proper for the Court to take into consideration the t of its decision on industrial peace, and I desired to be directed s to whether it was proper for the Court to take such matters into consideration. 11. Counsel for the applicants thereupon argued (inter alia) that if my views were correct the whole of Part V. of the said Act must be invalid, but stated that, in view cf my opinions expressed as aforesaid, they desired that a case should be stated for the opinion of the High Court, and the Union representative agreed to such course being taken. _ 12. Unless I have no power to grant such applications and do 'not proceed therewith, questions arise as to the power of the Court and of me as Deputy-President thereof to compel the attendance of with ses, to cause the same to be sworn and to control their conduct e in the witness-box. 14, The following questions which arise in the above proceedings "are, in my opinion, questions of law; and I state the same for the opinion of the High Court : - : (1) Has the Commonwealth Court of Conciliation and Arbitration and have I as Deputy-President thereof

[101]

anything contained in this Act, if the Court is satisfied that cireum- stances have arisen which affect the justice of any terms of an award, _ the Court may, in the same or another proceeding, set aside or vary any terms so affected." The Court's power is given "notwithstanding ~ anything contained in the Act." It is, therefore, not permissible

to regard any part of the Act as forbidding the full exercise of the power conferred by the words which follow. The Court must first _ be "satisfied" that circumstances have arisen which "affect the justice of any terms" of an award. The fact of which the Court _ is to be satisfied is one which is of the largest import. The injustice _ of a term may fest in its actual provisions or in its very existence. _ The term may be one of many, or it may be the sole term of the award. What is true of a term may be true of every term. _ To set aside every term necessarily means ending the award. If all _ the terms are no longer consonant with justice, and should individually be set aside, it would be repugnant to the enactment to leave one of them standing. Which one would be selected? To allow that one to _ operate alone, might cause even greater injustice. The words " any terms" include, therefore, the term of duration as well as the terms of what is to happen during the period specified. Question 8. - I join in the curial answer to this question for the reasons already stated as to questions 2 and 4. Question 9. - This to me is clearly hypothetical. I have already shown that questions as to the " power to cancel" are premature, except as to the separate power to entertain the application. Question 5 was, therefore, so limited. But question 9 is a stage further on upon the road of conjecture. Even if there be power to cancel (a stage not yet reached for this purpose), the facts justifying it
might not be found and, if found, the discretion, apart altogether from the matters mentioned in question 9, might be exercised to refuse the application. So those matters might prove entirely immaterial. The position assumed by the question then is: Supposing the evidence should satisfy the Court that the facts alleged existed or exist; and supposing the Court should think them sufficient to warrant the granting of the application; and supposing further the Court in its discretion would grant the application unless the circumstances mentioned can be taken into

[118]

I concur with the other members of the Court that questions - 5 and 10 should not be answered; for they are not questions of q law, but of discretion. It is true that sec. 31 directs an answer to - questions which, in the opinion of the President (or Deputy-President), are questions of law - and he has stated his opinion; but I obey a ruling of this Court that the questions must be actually, in our opinion, questions of law. Question 7 asks: 'Does the clause of the above award which prescribes the period for which it is to remain in force form part of the award for purposes of variation within the meaning of sec. 38 (0) ?" As this question is confined to the meaning of sec. 38 (0), I should have no hesitation in answering No. But the question of power under sec. 28 is much more difficult, and will be dealt with - under question 8. Question 8 asks (i.): Has the Court power to determine the award as asked? "As asked" refers to the only request to : determine the award. This is contained in the summons of the Shipping Board calling on the Union to show cause why the awards : should not be varied by substituting in clause 42 for the "first day - of March 1926" (the period specified in the award) the words " 30th May 1925 or such other date as the Court may think fit, or be set aside and determined." The grounds for the application are certain alleged strikes, &c., of the Union. Now, there is not, from first to last in the Act, any express provision whatever for determining an award or setting it aside. The absence of such a provision is very significant in face of the numerous amendments made from time to - time by Parliament, and the stormy history of the Act. It may be that Parliament thought the remedies it provided for misconduct, &e., were sufficient. Under sec. 44 there are provisions for penalties ; the penalties can be enforced against the Union's property, and, if the property be insufficient, against the members (sec. 47). In sec. 48 there are provisions for mandamus or injunction, fine or imprison- ment; and in sec. 50 there is provision for forfeiture of all rights in respect of the funds of the Union. But there was a section inserted in an amending Act passed in 1920, after the decisions in the case of the Gasworkers (1) and in the case of the Waterside (1) (1919) 27 CLR. 72.

[119]

W forkers (1) - a section evidently directed to relieve the practical culties arising from those decisions - the impasse created; and 'it appears now as sec. 28 (3). This, I understand, is regarded as conferring a power to "determine" an award: '* Notwithstanding y nything contained in this Act, if the Court is satisfied that circum- stances have arisen which affect the justice of any terms of an award, the Court may, in the same or another proceeding, set aside or vary terms so affected." The object of this provision is clear. It had recently been decided - in 1919 and 1920 - that the Court of Conciliation had no power, during the period specified in an award, to entertain an application, in the same proceedings or in a new dispute, for an increased minimum wage, even if the cost of living should have increased by 100 per cent. This Court, by a majority, held that this was the result of sec. 28(1); and hence the expressions notwithstanding anything contained in this Act," and "in the same or another proceeding." Sec. 28 (3) was a qualification of sec, 28 (1), taking away an obstruction to the powers of the Court Conciliation, and in no way diminishing the powers conferred by . 38 (0). _ There is nothing about determining or setting aside an award in » sub-section. It is a power, when circumstances arise that the justice of any specific terms (e.g., a great rise in the cost i living), to set aside or vary those particular terms. It is not a to set aside the award as a whole ; and, a fortiori, not a power set it aside on the ground that the Court thinks it an injustice 0 the employers, or to some of them, to be under any award. The ly answer that I have grasped as to this reasoning is that there be only one term in an award; or that each and every term long award may be treated as unjust. But, under the sub-section, test of justice would have to be applied to each term separately on its own merits, regard being had to alteration of circumstances affecting each term. After all, a power to pull down any house a town as being unfit for human habitation is not the same as a to pull down the whole town; nor is a power to set aside vary any term that has ceased to be just the same thing as a to set aside a whole award on the ground that the Union is

At a glance

Court

Decision date

Before

Source

Judgment (153 paragraphs)