Australian Insurance Staffs' Federation v Atlas Assurance Company Limited [1931] HCA 35

Industrial Arbitration - Industrial dispute - Log served by employees claiming salary H.C. ov A. at stated rate - Log served by employers suggesting salary at lower rale - Award 1931. "fixing salary at an intermediate rate - Application by employers to reduce award een ates rate by ten per cent - Reduction of award rate below amount offered by employers Sept, 28 eae

• Jurisdiction of Commonwealth Conciliation and Arbitration Court to reduce salary © Pye gS

below that amount - Commonwealth Conciliation and Arbitration Act 1904-1930 (No. 13 of 1904 - No. 43 of 1930), secs. 2144, 28 (3).

'4n award cannot be made by the Commonwealth Court of Conciliation and _'Dixen' Arbitration prescribing a minimum wage lower than any amount in difference metiorwan JJ. "in the industrial dispute, and, unless a new industrial dispute extending beyond

one State has arisen, an award cannot be varied so as to prescribe such a

When organizations of employees and of employers serve upon one and upon employers and employees respectively, logs of wages and co and the employees' log specifies the amounts they require to be paid, an employers' log the lower amounts they desire to be adopted, as minimum of pay, no dispute arises as to minimum rates lower than those sp the employers' log.

So held by Rich, Dixon, Evatt and McTiernan JJ. (Gavan Duffy C.J. Starke J. dissenting).

Summons under sec. 2144 of the Commonwealth Conciliation ani Arbitration Act 1904-1930 referred to Full Court.

On 14th May and Ist June 1927 the Australian Insurance Sti Federation served a log of demands on the various insurance offices, employers made respondents to this summons. On 30th May 1927 the employers served a separate log of demands upon Federation and also upon a large number of individual emplo in the State of New South Wales who were not members of tl Federation. The Federation's log demanded of the employers payment of certain minimum salaries to members of the Federation For the seventh year of service, which was taken by way oi illustration, the demand was a minimum salary of £265 pera This was also the minimum salary claimed for male employees twenty-one years of age. The employers demanded that thi schedule of industrial conditions set out in their log " should go the wages . . . of all their respective employees," the scheduled being described as those "such employers desire," being considerably lower than those demanded by the Federation The rate of pay claimed was £220 per annum for the seventh ye of service, again taken as a test illustration. The log asked tl

Federation and the individual employees to reply on or before 15tl June 1927 whether it and they agreed to be bound by the terms out.

The employers' log was expressed to apply to the State of South Wales, Victoria, South Australia and Western Australia.

On or about 22nd June 1927 the employees and the Federation both applied for the holding of compulsory conferences und sec. 16a of the Commonwealth Conciliation and Arbitration Act, and two summonses were issued by the Conciliation Commissioner

the holding of conferences. The two conferences were held at the one time on 27th June 1927. No agreement was reached between

• the parties, and on the same day both disputes, one in relation to the Federation's demands and the other in relation to the employers'

demands were referred to the Court under sec. 19 (d) by two orders ' 'of reference. The order of reference in the dispute initiated by the Federation alleged the existence of an industrial dispute "as to the matters set forth in the first schedule hereto," which schedule merely

• set forth the demands in the log served by the Federation. The
• order of reference in the dispute initiated by the employers alleged an industrial dispute "as to the matters set forth" in the log of _ demands served by the employers on the Federation and the individuals mentioned.

On 23rd September 1927, by consent, the Commonwealth Court of Conciliation and Arbitration made a single award in the matters of the two disputes. The employers were named as parties to the _ award, the salary (for the seventh year) agreed upon and contained in the award being £225 per annum. The award was to be in force for a period of one year from 1st September 1927. After Ist September 1928 the award continued in force by virtue of sec. 28 (2) of the Act. Subsequently, various other awards were made

binding various other employers and fixing the same rates of salary

as those agreed upon in the previous award. None of the awards contained any provision for the periodical adjustment of wages in _ accordance with the rise or fall in the cost of living, nor was a claim _ for such a provision contained in any of the logs. On 20th October 1927 another log was served upon the Federation _ by certain employers and upon individual employees in New South Wales, claiming rates identical with those fixed by the award, and an award dated 26th November 1927 was made adopting those tates binding these employees and employers.

On 6th February 1931 a large number of employers parties to the award in question caused a summons to be issued in the Commonwealth Court of Conciliation and Arbitration calling upon _ the Federation to show cause why such award "should not be varied" in the following respects: "(a) by reducing all wages fixed by the award in accordance with the fall in the cost of living

AUSTRALIAN INSURANCE SrarFs' FEDERATION v ATLAS AssURANCE Co. Lrp.

AUSTRALIAN Insurance Srarrs' Ferperation % ATLAS ASSURANCE Co. Lap.

since the award was made, and then reducing the wages so asce1 by ten per centum; (b) by making all consequential alteratio The grounds stated on behalf of the employers in support of t] application to vary were " (a) that the rates of pay fixed by the award are now too high having regard to the fall in the cost of living since the award wasmade; . . . (¢) that, taking into consideratio the present economic position, the wages fixed by the award are high." In opposition to the application it was contended in Arbitration Court for the Federation that the Court had no juris- diction to make the order asked, on the ground that a reduction of ten per centum would cause the wages to be reduced below thos contained in the employers' logs and that any such order would th fore be outside the ambit of the disputes, which were limited on the hand by the employees' log and on the other by the employers' and that the making of the order as asked would result in the wages of an adult in his seventh year of service (this being the minimum rate for male employees of twenty-one years of age), which were fi by the award at £225, being reduced to £202 10s., whereas employers' demand was in that award for £220 and in the awards for £225.

On 17th July 1931 the Arbitration Court made an order all wages prescribed in the award by ten per centum. This ope as a reduction of the seventh year's salary from £225 to £202 l0s., that is, below the sum of £220, the salary which had been mentioned for such year in the log of the employers.

On 28th August 1931 the Australian Insurance Stafis' Federation issued a summons under sec. 2144 of the Commonwealth Conciliation and Arbitration Act asking for the determination of the foll questions of law, namely, (1) whether the Court had jurisdicti in making the said orders, to vary the said awards by reducing all wage rates prescribed by the said awards and payable thereunder from time to time by ten per centum; (2) whether the Court had jurisdiction to vary the said awards so as to prescribe wage rate lower than those sought by the respondents in the logs of wa served by the respondents on the applicant ; (3) whether the s orders were within the area or scope of the industrial disputes within the Court's cognizance. ;

This summons came on for hearing on 3rd September 1931 before Starke J., who, pursuant to sec. 18 of the Judiciary Act 1903-1927, ordered that it be argued before the Full Court of the High Court.

Gorman K.C. (with him Fraser), for the applicant. The only question of importance under the summons is that raised by question (c). Whether ten per centum is taken off £225 or £220, it brings it below the amount offered by the employers' log. Sec. 28 (3) of the Commonwealth Conciliation and Arbitration Act 1904-1928 was the power invoked by the Arbitration Court to vary the award, and it is the Arbitration Court's interpretation of the power to vary with which the applicant disagrees. Sec. 19 sets out the disputes of which the Court has cognizance. There was no dispute between the parties when the reduction was made and the application was _ merely one to vary. There must be a dispute before the jurisdiction arises, though the award may be set aside entirely or it may be varied, provided that the variation is limited to the ambit of the dispute. Such an interpretation makes sec. 28 (3) valid; the _ interpretation given to it by the Arbitration Court makes it invalid (Australian Commonwealth Shipping Board v. Federated Seamen's Union of Australasia (1); Waterside Workers' Federation of Australia y. Commonwealth Steamship Owners' Association (2) ). The addition of sec. 28 (3) enables the Court to set aside the award even during _ the specified period, and empowers a variation to be made after the _ Specified period has expired and enables it to be made retrospectively. The only power which the Court of Conciliation and Arbitration _ has is to arbitrate upon disputes, and consequently to get power to arbitrate there must be a dispute, and the only power of the Court _ is to arbitrate on matters in dispute. There was never any dispute as to whether the amount should be over £265 or below £220. The _ Tespondent desires to vary the award by saying that the Court can fix a figure about which there has never been any dispute. Sec. 28 does not add to the manner in which the matter can come before the Court. Arbitration presupposes disputants and a dispute. 'There was no disagreement at all at the time when this order was made. There was an award standing which could have been set

(1) (1925) 36 C.L.R. 442, at p. 458. (2) (1920) 28 C.L.R. 209, at p. 223.

AUSTRALIAN InsvRANcE Srarrs' Frperation v ATLAS ASSURANCE Co. Lrp.

H.C. or A. aside. If there were a dispute the Court would have to ee the existing award and then provide in the appropriate way. ere aee power of the Court is limited to the settlement of a dispute, 'Starrs' outside £220 and £265 there is no dispute (Federated Engine-D sie me and Firemen's Association of Australasia vy. A1 Amalgamated Q)

ae: a Before proceedings are commenced, there must be a dispute e Co. Lrv. Here there was no dispute existing at all, and it is not within ~~ power of Parliament to enact such a provision enabling the adjudicate unless there is a dispute. The only powers which Court of Conciliation and Arbitration has are those given by vi of the Commonwealth Conciliation and Arbitration Act. The is limited to the margins between the employers' and the employs e logs (R. v. Commonwealth Court of Conciliation and Arbit Ex parte Broken Hill Pty. Co. (2): Waterside Workers' Fed of Australia v. Gilchrist, Watt & Sanderson Ltd. (3); R. v. Common wealth Court of Conciliation and Arbitration; Ex parte Whybrow Co. (4); Merchant Service Guild of Australasia v. Commonweal Steamship Owners' Association (5); Australian Commonw Shipping Board v. Federated Seamen's Union of Australasia (6) ).

[Evarr J. referred to Waterside Workers' Federation of Austi v. Gilchrist, Watt & Sanderson Ltd. (7).]

The power given by the Constitution is to make laws with respect to arbitration for the prevention and settlement of disputes. can be no arbitration without disputants and a dispute. What th parties claim.and deny constitutes the dispute, and anything whiel goes beyond that exceeds the power of the Legislature and Court. The dispute which formerly existed did not extend beyé £265 or below £220, and the service of the summons by the emplo did not create a new dispute.

Robert Menzies K.C. (with him Stanley Lewis), for the respondents The Arbitration Court itself, in making the award the variation which is now in question, made the award in respect of two distin

U.L.R. 349, at pp. 351- (3) (1924) 34 CLLR. 482, at p. 346. (4) (1910) 11. C.L.R. 1, at pp. 60-61.

(2) (1909) 8 C.L.R. 419, at pp. 430, (5) (1920) 438, 450. 5

disputes, the first created by the service of the employees' log and the other by the service of the employers' log and the failure to comply with those logs. As there were two disputes thus created the Court had jurisdiction to award anything from zero upwards to £265 per annum (Federated Engine-Drivers' and Firemen's Association of Aristralasia v. Al Amalgamated (1)). When the Arbitration Court has purported to deal with the log, this Court cannot in proceedings under sec. 214A go on to determine whether there is or is not a dispute. There were two disputes, and they have always been kept separate. The order of the Court attaches itself to the two awards made in respect of two disputes. At this stage sec. 214A is not appropriate. The sole question is whether the persons in the employees' log are covered by this argument. 'Treating the employees' and the employers' logs as creating separate disputes, the employees' log in relation to New South Wales does, as a result of the 41 Amalgamated Case, justify a reduction of wages to an amount which the Court thinks proper. As to the effect of the employers' log, assuming that this Court can treat this award as being made in one dispute, it becomes necessary to determine what the employers' demand in relation to industrial matters means. When an employer serves a log on an employee it means that the employer wants something not more than the minimum stated in the log. The employer's log means that the most the employer is prepared to pay is the minimum mentioned. When the parties go to Court on such a log, there is in issue everything from the minimum stated down to zero. Counsel referred to Ince Bros. v. Federated Clothing and Allied Trades Union (2) and Amalgamated Engineering Union v. Alderdice Pty. Ltd.; In re 1 Metropolitan Gas Co. (3). As to the effect of sec. 28 (3), when _ Parliament authorizes the Court to set aside or vary the terms of _ an award it is giving to the Court in relation to a matter which has _ been determined by the Court power to make a variation to whatever extent the Court considers just. Sec. 28 (3) was brought into _ operation to get over the difficulty that there cannot be a dispute 4s to an award during the currency of that award. When the

(1) (1924) 35 C.L.R. 349. (2) (1924) 34 C.L.R. 457. (3) (1928) 41 C.L.R. 402, at p. 421.

AUSTRALIAN InsvuRANCE Srarrs' FEDERATION v ATLAS AssuRANCE Co. Lrp.

employers' summons: was resisted by the employees' organizati and union there was a definite dispute as to an industrial proceedi and the judgment of the Arbitration Court settled such dispute on the terms of the judgment. Sec. 28 (3) expressly provides machinery for dealing with a new dispute constituted by the summon: and the arbitration. If the matter was a dispute cognizable by th Court in the ordinary way, it would be necessary to go further bac than the summons, but the dispute raised by the issue of the employers' summons is cognizable by reason of sec. 28 (3). espec- tive of a new dispute, sec. 28 (3) authorizes from a constitutio point of view something to be granted, though it is not in dispute as long as it arises out of something in controversy. :

Gavan Durry C.J. anp Starke J. This is a summons under sec. 21aa of the Commonwealth Conciliation and Arbitration A 1904-1930 for a decision upon the question whether the Common- wealth Court of Conciliation and Arbitration had jurisdiction t make an order reducing, by ten per centum, all wages prescribed by certain awards, four in number, and payable thereunder. objection is that the variation is beyond the ambit of the dispute disputes the subject of the awards. A statement of the facts relation to one award will make the matter clearer. About May 192 the Australian Insurance Staffs' Federation served a claim, or "log" as it has been called, upon employers. This log claimed mini salaries and working conditions that should be paid to and gov the employment of members of the Federation. We may take fo illustration the claim in respect of the annual rate of pay for m in the seventh year of service, namely £265. About May or Jun 1927 the employers also served a claim or log upon the Federatio and various employees. The employers, in this log, claimed that wages and conditions under which their employees were then workit should be altered, and set forth the wages and conditions employers desired. The rate of pay desired for males in the se year of service was £220 per annum. The employers' and employe y

logs were by no means identical, or even similar, in respect of subject matter, and they were always treated and dealt with in the Arbitra- tion Court as two separate and independent industrial disputes extending beyond the limits of one State; but both claims and the disputes raised by the claims were dealt with together, and one award was made prescribing a rate of pay for males in the seventh year of service of £225 per annum. This was also the minimum rate of pay at twenty-one years of age for male employees. A reduction of ten per centum brings the remuneration prescribed for males in the seventh year of service down to £202 10s. per annum, which is below the rate of £220 "desired" by the employers in their log. Such a reduction, it is said, contravenes the provisions both of the Constitution and of the Arbitration Act 1904-1930. The Constitution, sec. 51 (xxxv.), authorizes the Parliament to make laws for the peace, order and good government of the Common- wealth with respect to conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State. Although in every industrial dispute there must be defined disputants, and a subject of dispute more or less defined, still the power contained in the Constitution is conferred as well for the public interest as for that of the parties to the dispute (existing or threatened). So long as the prevention or settlement of a dispute is effected by means of conciliation or arbitration, and results in an agreement or a direction relevant to the dispute as it exists at the time of such agreement or direction, it is within the constitutional power. The authority which may be conferred upon 4 conciliation or arbitration tribunal is not confined to the grant of 'the relief or the claims made by the parties to the controversy. Parliament may well, in the interests of the community, provide that the authority it creates shall make such orders and give such 'lief in the dispute as it shall think reasonable and necessary for "the prevention or settlement of the industrial controversy." No case has been decided in this Court which contravenes this proposi- tion; its decisions have been confined to questions of the proper iterpretation and limits of the Arbitration Acts 1904-1930. Under hese Acts it has long been held that the function of the tribunals thereby created is to prevent and settle industrial disputes extending

S= AUSTRALIAN INSURANCE Srarrs' FEDERATIONArtas AssURANCE Co. Lrp.

H. C. or A. beyond the limits of a State, and that while jurisdiction does no

a) extend beyond the ambit of the dispute submitted and in res

Ausrrattan of which the tribunal has cognizance, yet the tribunal is not restrie erty to the grant of the specific relief claimed, but may deal with. FEDERATION matters incidental and ancillary to the dispute. "It may give an

eee thing between the maximum and the minimum limits of the dispute,

Co. Lrp. but it can pass neither further forward than the maximum ne ty further back than the minimum" (Whybrow's Case (1); Brok Starke J. Hill Case (2) ). In accordance with this limitation on jurisdicti the power which a tribunal has under sec. 38 of the Acts to

its orders in respect of every industrial dispute of which it ha

cognizance only authorizes a variation within the ambit of the disp

Employees' Industrial Union v. Metropolitan Gas Co. (4); Federated Engine-Drivers' and Firemen's Association of Australasia vy. Al Ai gamated (5) ). The ambit of the dispute is simply the area of controversy or the issue between the disputants. Thus, whe employees claimed, and the employers disputed, that certain " shall . . . be paid to employees . . . according to several classifications and duties, as set out hereunder" (6), Court held that the controversy or issue was whether the s stated, or lesser sums, should be paid (41 Amalgamated Case). The employees' claim or log in the present case, to which reference has already been made, claimed minimum rates, and the emplo disputed or did not concede them. It accordingly falls within class governed by the Al Amalgamated Case (5), so that controversy here was whether the rates specified, or lesser ra should be paid. The reduction of ten per centum made by Arbitration Court is thus within the ambit of this dispute. The employers' claim or log was that wages should be a coupled with the expression of a desire as to the rates that should be paid. The employees or their organizations disputed or did m concede the rates suggested. Therefore the controversy here whether wages should be altered. No limit was imposed, up¥ or downwards, and the Arbitration Court was thus free to pres

(1) (1910) 11 C.L.R., at p. 61. (4) (1919) 27 CLR, 72, at pp. $485. (2) (1909) 8 C.L.R, 419, (5) (1924) LR. 349. (3) (1920) 28 C.L.R., at p, 225, (6) (1924) 35 C.LLR., at p. 350.

j 'such rates as it deemed reasonable and just. The reduction of ten

per centum made by the Arbitration Court is thus within the ambit of this dispute also.

The same results would follow from a consideration of the claims or logs which formed the basis of the remaining three awards already referred to. The order of the Arbitration Court reducing wages payable under the four awards might, then, be justified under the _ power of the Court contained in sec. 38 (0) of the Acts to vary its awards or orders. But the Arbitration Court was oppressed with the decisions of this Court upon that section, and preferred to act upon another section, namely 28 (3), the relevant portion of which is as follows: " Notwithstanding anything contained in this Act, if the Court . . . is satisfied that circumstances 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." This power was given in 1920 (Act No. 31 of 1920, sec. 13) after the decision of this Court in the Gas Employees' Case (1) (see also Waterside Workers' Case (2) ) denying the jurisdiction of the Arbitration Court to make an award altering the provisions of an existing award, whether in the same dispute or any other dispute, except by way of variation within the limits of the original dispute under the powers contained in sec. 38 (0). It must be observed that the new provision (sec. 28 (3) ) deals with awards and not with the settlement of disputes. An award must be made ina dispute, but if circumstances have arisen which affect the justice of an award, the Court may set it aside. Thus, in the present instance, instead of reducing award rates by ten per centum, the Court might, as was conceded at the Bar, have completely set aside the four awards. According to the argument presented to this Court, however, the Arbitration Court cannot, though circumstances have arisen which affect the justice of terms of the award, vary those terms, unless the variation be within the ambit of the original dispute. Unless it is sought to rest the argument upon the cases ided under sec. 38 (0) of the Acts, it is difficult to perceive any teason for this construction of sec. 28 (3). The power to vary under 'Sec. 38 (0) was only given as regards "every industrial dispute of

AUSTRALIAN InsuRANCE Srarrs' FEprERation " Arias ASSURANCE Co. Lrp.

AUSTRALIAN TysuraNnce Svarrs' FEDERATION v Arias ASSURANCE Co. Lrp,

which" the Court had " cognizance " - which justifies, no d the decision that the power must be exercised in relation to particular dispute and the controversy between the parties, sec. 28 (3) has nothing whatever to do with the original controver between the parties: it is concerned with matters affecting t] justice of the award though such matters may arise wholly ow that controversy. It is a strange construction that concedes po under sec. 28 (3) to set aside awards, and yet denies power to alt them - for a variation is but an alteration - unless the variation' within the ambit of the original controversy between the partie There is nothing in sec. 28 (3), as there is in sec. 38 (0), which justifies such a construction.

In our opinion, the questions raised by the summons should a be answered in the affirmative.

Ricu J. We have to consider the validity of an order of Court of Conciliation and Arbitration made during this winter of our discontent directing a reduction by ten per centum of minim rates of salaries fixed by awards made in 1927 and 1928. This ord has brought once more into the light the difficulties which attend the general regulation of industrial conditions under the guise and cover of settling industrial disputes in the exercise of the constitutional power entrusted to the Commonwealth to settle two-State di by arbitration. We know that those who were responsible introducing this power into the Constitution, which had ah ' been drafted, had in mind wide-spread industrial disturbances of an exceptional nature which they considered the State law unable adequately to deal with. The abstract terms which employed to describe the power were perhaps necessarily indefi and they have been found to possess all that elasticity which notoriously belongs to indefinite terms. I ventured to refer to this in Federated State School Teachers' Association of Australia v. of Victoria (1). The decisions of this Court have uniformly i that the Federal jurisdiction is contingent upon the existence of a industrial dispute threatened, impending or probable. But | determining what is an industrial dispute the mildest controverste

have been included. The cases have uniformly insisted that the dispute must be industrial; but in determining what is industrial the meaning of the term has been extended to include the pursuits which ministered to the needs of the industrial system, and so we have the insurance officers before us in this application. The 'decisions uniformly insist that the dispute must be inter-State, but concurrent disagreement in two States between independent sets of parties in industrial relations now seems almost enough to satisfy this requirement. Again, the Federal power must proceed by conciliation and arbitration and not otherwise (Australian Railways Union vy. Victorian Railways Commissioners (1) ). But this has proved no obstacle to the Court of Conciliation and Arbitration framing complete codes of rules for the regulation of an industry. Liberal, however, as has been the application of the limitations imposed by the Constitution upon the Federal power, those limitations cannot be escaped. But the very width of application which has been given to them has increased the difficulties of ascertaining the boundaries of the power. The enlargement by judicial decision has been progressive, and has been accomplished by the double process of the Court of Conciliation and Arbitration making, whether by experiment or otherwise, awards the validity of which was uncertain or disputable, and this Court resolving the doubt in favour of that. Court's decision. As a result, perhaps less certainty of definition has been achieved than might be desired, but only an optimist could hope at once for a widening jurisdiction and fixity of definition. But at no time had there been any doubt that the existence and the ambit of a dispute determine the power of the Court of Concilia- tion and Arbitration to embody its will in an award. To go outside ters in a dispute and to regulate wages or conditions otherwise by a decree which is fairly incident to composing the difference tween the parties is neither to arbitrate nor to settle an industrial dispute. It is easy to understand that when great reductions in $ are considered necessary for our economic well-being, and minimum rates are found fixed by awards made in more prosperous times, it should seem a natural course to take to effect the reduction the variation of the prescribed rates. The award is inevitably

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ww AUSTRALIAN INSURANCE Starrs' FEDERATION v ATLAS ASSURANCE Co. Lev.

regarded as a subsisting regulation of wage rates which shoul altered to suit the times. It is forgotten that its sole justifi lies in the theory that it is an arbitral decree designed to settle g industrial dispute by determining the controversy between | parties. If it is varied, it remains as varied an arbitral aw settling the same dispute, depending for its authority upon 4 existence of that dispute and upon the appropriateness of its ter to the settlement of that dispute. Consequently the limits of power to vary must be found in the ambit of the dispute. 1 Constitution does not require that every dispute should haye separate award, and if a new dispute arises there is nothing in Constitution to prevent the Court of Conciliation and Arbitrat taking up an old award, varying it and applying the variation remedy for the new dispute or the new or old in combination. 1 Act of Parliament made under the Constitution does not al permit this to be done, but sec. 28 (3) provides that, if the Cou t Conciliation and Arbitration is satisfied that circumstances ha arisen which affect the justice of the terms of an award, it m "in the same or another proceeding " refer to or include a p in a new dispute. In the present case it is said on behalf of t -employees that the reduction of ten per centum makes the a prescribe minimum rates of salary lower than those which wi controversy in the industrial dispute in which the awards made, and that no new dispute had arisen justifying the v: or, if one did arise, it had not been submitted to the Court's cogni There were five alleged industrial disputes which the aw purported to settle. It is unnecessary to state the facts in d It is enough to say that some of these alleged industrial were said to consist of no more than logs served by the emplo specifying rates and conditions which the employers desired, a presumably of the failure of the employees served to give an ans 'Others were said to consist of logs served by the employees demandip minimum rates and conditions. The logs served by the employs were answered by the logs served by the employers. employers and employees exchanged logs, whatever might be t precise order of time in which the respective logs were deli does not seem to me to be possible to take the artificial ¢

adopted by the Court of Conciliation and Arbitration when the alleged disputes were referred into Court and treat each log as creating a separate dispute consisting of a disagreement arising from failure to answer the demands or requests it contained. The exchange of rival views between employers and employees on the same subject matter creates one and not two disputes or contro- yersies. The employers' log specified wages, and I cannot understand the log to mean that the employers were not prepared to pay the wages which they themselves set out. The payment of lower

• amounts was not, in my opinion, within the controversy either in : cases where the dispute arose out of the delivery of the employees'

• log only or in cases where it arose out of the delivery of employers'

and employees' logs. The ten per centum reduction varied the _ awards so that they prescribe wages lower than the amounts specified in the employers' log. The Judges of the Court of Conciliation and Arbitration appear to have considered that, in the absence of a further dispute, such a variation could not be made. In their _ judgment in this case they refer to the reasons which they gave in another matter, in the course of which they say : - '' The question then arises, whether the employees' log and its refusal opened up a

• dispute concerning rates lower than those conceded by the employers in their logs. Standing by itself, the employees' log might be held to bring into dispute the question of rates, with no limitations other than those in the upward direction arising from the amounts being "specified in the log, but the proper inference to be drawn here from the antecedent demands of employers and subsequent demands of employees considered together is, in our opinion, that there was no dispute with the employers who served logs created by any or all of these logs as to rates lower than those specified in the employers' logs." I agree with this view of the matter. But their Honors considered that in virtue of sec. 28 (3) the Court of Conciliation and Arbitration had jurisdiction to make the variation because a new dispute had arisen of sufficient ambit to justify the reduction. If is were not so, I think the variation would be invalid. To settle dispute by prescribing a rate of wages lower than the rate in controversy - the rate the employers concede or are willing to pay
• does not appear to be arbitration for the settlement of that

AUSTRALIAN Ts ANCE Srarrs' FEDERATION vw ATLAS ASSURANCE Co. Lap.

HL ne A. dispute. Circumstances may arise, although I have not been abl u,~ toimagine them, in which the fixing of lower wages than are con Ausrratian is relevant to the composition of differences between the pi

Insurance z ; Srarrs' but in the circumstances of the cases before us I am unable to

FEDERATION how it could be thought necessary or expedient for the prevent AseiZAS ., oF settling the dispute within the meaning of sec. 388 of the Co. Lrp. or in any way to arise out of or be connected with the ori;

Ring. dispute. I turn, therefore, to the new dispute which is alleged as. justification for the variation. The first difficulty I encounter is complete absence of any communication between the parties b this application came into a Court of Conciliation and Arbitration or any evidence of the state of their aspirations or desires. doubt the motives which we cannot but know are likely to be supplies by the prevailing condition of affairs, contain all the factors iron which disputes arise. But it is difficult to treat the mere appli to a Court to reduce wages and the opposition thereto in bringing into existence the very dispute which the proceedings an supposed to be settling. But in any case sec. 28 (3), in referring t another proceeding, appears to me to mean a proceeding in a dispu of which the Court has taken cognizance under sec. 19. is the commencement of the Court's proceeding in any d From the beginning the scheme of the statute has been to the Court to acquire in various ways cognizance of industrial d and then, and then only, to charge it with the duty and give it th authority to deal with them. There is nothing in sec. 28 (3) suggest a departure from the scheme; on the contrary the reason for interpreting its provisions as allowing a variation award to be made in a new dispute lies in its reference to ano proceeding which, in view of the scheme of the Act, appears tom a proceeding in another dispute commenced by the taking cognizance under sec. 19. I therefore think the Court of iliatic and Arbitration derived no authority from any new dispute. order of variation is, in my opinion, invalid. I cannot doubt the question of the invalidity of the order is within sec. 214 question of law arising in relation to an order of the Conciliation Arbitration Court. The fact that the parties are not in agre as to the inferences of fact which must be considered before

ultimate question of law is determined, does not deprive this Court of jurisdiction under that section. The section gives us original jurisdiction in justiciable matters, and, unless the facts are predeter-

• mined - and here no provision is made for a predetermination - we must determine them ourselves although in the end we are confined ~ to a question of law arising from them. Nor do I think that Ince's } Case (1) prevents us from ascertaining the ambit of the original
• disputes although they have been settled by award.

Dixon J. By an award which came into operation on Ist September 1927, an award which came into operation on 25th November 1927 and another which came into operation on 1st May 1928, the Commonwealth Court of Conciliation and Arbitration prescribed minimum rates of pay for employees of insurance offices. The fixed period of these awards has long since expired, but they

• remain in force by virtue of sec. 28 (2) of the Act. The Court of "Conciliation and' Arbitration has now made a variation of the awards to operate for six months from 31st July 1931 " reducing all wage tates prescribed by the awards and payable thereunder from time to time by ten per centum." The validity of the orders of variation is attacked upon the ground that the reduction would establish minimum rates below those proposed by the employers in logs. which are said to define the ambit of the disputes settled by the original awards. It appears that on 14th May and Ist June 1927 an industrial organization of employees served upon a large number of employers a log demanding for its members working conditions and minimum salaries which were set out in detail. On 30th May 1927 these employers served upon the employees' organization and many employers who did not belong to that organization, which had few members in New South Wales, a log of conditions and salaries described as " the wages and conditions such employers desire," but confined in application to Victoria, New South Wales, South Australia Western Australia, The document began : - ' The employers. on whose behalf this log of wages and conditions of employment

servel . . . claim that the wages and conditions under

AUSTRALIAN InsuRANCE Srarrs' FEDERATION v. ATLAS ASSURANCE Co, Lr.

H. pd A. which their employees are at present working should be

C~ They claim that all existing awards, agreements and practices sh

atu be determined and that this log should govern the wages

Srarrs' Conditions of employment of all their respective employees, whe

eae ly members of any organization or not." Without, so far as appe

Kees any further communication between them, each side applied to the

Co. Lp. Court of Conciliation and Arbitration for a compulsory conferenc

Dixon J. treating failure to comply with its log as giving rise to a sey

industrial dispute. Compulsory conferences were accor

summoned for the same day, when the Conciliation Commis

proceeding upon the view that there were separate disputes,

two orders referring the alleged disputes separately into Co

I cannot think the view that there were two disputes is right. Be

logs dealt with the same subject matter, and each stated what i

authors desired or required upon the subject. As between he

organization of employees and the employers the nature and se

of the dispute was determined by the documents. If and so far

the log delivered by the employers provided théir answer

particular demand of the employees' organization, and vice versa

it appears to me to be impossible to treat the area of dispute :

extending beyond the demand and the answer. In respect ol

Queensland the employers' silence might perhaps be taken E

equivalent to a complete refusal to agree to any rates or sali

or conditions to prevail in that State. In the same way tl individual employees who failed to reply to the service of

employers' log upon them might perhaps be taken as refusing | its

requests altogether. What precisely this log requested them

is not clear. In some respects it reads more like a notificati

what the employers will seek at the hands of some authority,

doubt the Court of Conciliation and Arbitration, than a d

upon the employees for something within their volition.

propounds a demand that the salaries payable to employees be those specified or less. It appears to me to express the empl desire that the salaries paid shall be those stated and to i willingness to pay such salaries at least. The Court of Concili and Arbitration made a single award under both orders of referent

It adopted rates of salary considerably less than those of the organization's log, but somewhat more than those of the employers' log. About a month later four more insurance companies served the employers' log upon the employees' organization, and very many insurance companies served upon the organization and upon a great number of individual employees in New South Wales who were not members of the organization, a log expressed in the same form but adopting the rates of salary prescribed by the award. These logs were treated as generating two disputes which were made the subject of compulsory conferences and orders of reference into Court. The second of the three awards was made in settlement of these alleged disputes. It prescribed the same rates and conditions. Six months later another log in the same form adopting the rates of the award was served by a great number of insurance companies upon the employees' organization and upon many individual employees in New South Wales who were not members of the organization. This led to the third award, which again prescribed the same rates and conditions.

In none of these alleged industrial disputes, in my opinion, did the employers demand, request or seek rates of salary below those stated in their logs in respect of the States to which and the persons to whom the logs applied: and I think the logs implied a readiness and willingness to pay those rates. It appears to me to follow that the payment of lower rates was not in dispute in any of the industrial disputes in settlement of which the three awards were made. But the awards, as they have now been varied, prescribe minimum rates ofsalary which are in fact lower. Unless a justification for the orders of variation can be found in some further industrial dispute, the _ tesult is that awards now stand in force establishing minimum wages

• lower than rates which were not in dispute. The awards operate _ not merely to make it unlawful to pay less than such wages, but also _ to determine the appropriate minimum to the exclusion of all wage "regulation except under some other Federal law (Ex parte McLean (l); H. V. McKay Pty. Ltd. v. Hunt (2); Clyde Engineering Co.

~v. Cowburn (3) (3) ). Assuming that no other industrial dispute has

(1) (1930) 43 C.L.R. 472. (2) (1926) 38 C.L.R. 308, (3) (1926) 37 C.L.R. 466.

AUSTRALIAN Tysurance Srarrs' Feperation v ATLAS ASSURANCE Co. Lav.

H.C. or A. come into existence which authorizes the variation, the m 1931. i

should, I think, be considered just as if, in the first instance, n x rates had been established by the awards at amounts lower than th employers proposed in the disagreement which caused the dis

• Sec. 388 of the statute provides that the Court shall not be res , to the demands made by the parties in the course of the dispute

may include in the award any matter or thing which it thi Dixon J. Necessary or expedient for the purpose of preventing or settling dispute. But the relief given must be relevant to the actual di incidental or conducive to its settlement. In R. v. Commonwe Court of Conciliation and Arbitration ; Ex parte Whybrow & Co. (0), term of an award was held invalid which prescribed minimum rat

for apprentices higher than those demanded in the log. Isaacs he then was) said (2) : - ''In my opinion the Court had no gr jurisdiction to award a higher wage than was asked, than it had to reduce wages below what was actually in dispute. It is the dis that has to be regarded and adjudicated upon. In deciding dispute, it must always be remembered that, as stated by Maenaghten in Midland Railway Co. v. Loseby and Carnley (3) "In coming to his determination it must be open to the arbi to investigate and to determine any question incidental to referred to him - any question which must be determined in on to determine finally the point in difference.' There is nothing the world to prevent employers or employees from making their respective demands as wide as they please ; but when they choose

dispute, and refer that to the Court, then that is what the has to decide. It may give anything between the maximum the minimum limits of the dispute, but it can pass neither fur forward than the maximum, nor further back than the minimum."

I think it follows that the rates awarded by the variation not have been prescribed by the original award. Sub-sec. 3 of sec 28 empowers the Court, if it is satisfied that circumstances have arisen which affect the justice of any terms of the award, in the or another proceeding to set aside or vary any terms so affe

(1) (1910) 11. CLR. 1. (2) (1910) 1 G.LR,, at p. 61. (3) (1899) A.C, 133, at p. 137.

No doubt the Court of Conciliation and Arbitration could have set aside the term prescribing minimum rates altogether, and, if a new

proceeding in that dispute, have acted under the sub-section by ordering a reduction below the limits of the original dispute. But unless warranted by a new dispute, I do not think a variation of

the variation goes beyond the limits imposed by the old dispute upon the Court's power to make an award. It is said that a new _ industrial dispute did come into existence and that it afforded a justification for the reduction which the variation would accomplish. The Court of Conciliation and Arbitration did not acquire cognizance of any such dispute under sec. 19, and there is much to be said for _ the view that, when sec. 28 (3) speaks of "the same or another proceeding," it is contemplating a proceeding arising out of the Court's cognizance of the same dispute and a proceeding arising out of its cognizance of a new dispute. (Compare the opening words of sec. 38.) But in this case there is nothing to establish a new dispute except the application on the part of the employers for the variations and the opposition to them on the part of the organization. No doubt the known circumstances make it easy for an industrial dispute to arise about reduction of salary, but it does not appear that any such dispute extending beyond the limits of any one State in fact came into existence, or was threatened, impend- ing or probable. For these reasons, I am of opinion that the orders _ of variation were beyond the jurisdiction of the Court of Conciliation and Arbitration. The proceedings before this Court in which the validity of the orders is impeached are brought under sec. 214a. The decision in the case of Ince Bros. v. Federated Clothing &c. Union (1) establishes that after a dispute has been settled by award a decision cannot be 'obtained under this provision on the question whether a dispute 'exists, and that the parties are confined to applications for decisions on questions of law arising in relation to the dispute or to the proceed- ing or to any award or order. I have had some doubt whether the 'question of the validity of the orders of variation is a question of

the old awards can be made under the provisions of sub-sec. 3 if

dispute existed relating to the lowering of wages, it might, in a Avsrratray INSURANCE

AUSTRALIAN INSURANCE Srarrs' FEDERATIONATLAS ASSURANCE Co. Lrp.

law, depending as it does to a great extent upon the ascertainme of the ambit of the disputes settled by the original awards. But I do not think the Court can be restricted under sec. 21a to the decision of a question of law arising upon ultimate facts which are admitted. The proceedings cannot be like a special case which is either stated by the parties who agree on the facts or by another tribunal which has already found the facts. Of necessity the facts which raise the question of Jaw must be ascertained by this Court for itself. In this view of the section it is competent for this Cow to make the inferences upon which the ultimate question of la arises, namely, the validity of the orders of variation. Further th suggestion that a new dispute existed may be investigated as a1 allegation of a fact which would or might intercept the le; conclusion from the other facts. This view seems to me to supported by the decision of the Court on applications under s 21aa in Amalgamated Clothing and Allied Trades Union of Australia v. D. E. Arnall and Sons; In ve American Dry Cleaning Co. and, perhaps, in Alderdice's Case (2). The existence or non-exis of a new dispute, even if the summons were amended, could not, my opinion, be decided as a separate question under the e words of sub-sec. 1 of sec. 2144 because, although no award in that alleged dispute has been made, it has not been submitted to th Court's cognizance under sec. 19. See Western Australian Ti Workers Industrial Union of Workers (South West Land Division) Western Australian Sawmillers' Association (3).

In my opinion each of the three questions in the summons sho be answered No.

EvarrJ. On May 1th and June Ist, 1927, the registered org tion of employees, which is the present applicant, served a log of demands on the employer respondents mentioned in the consé award to be referred to later. On or about May 30th, 1927, the sai employer respondents served a separate log of demands upon Federation and also upon a large number of individual emplo in the State of New South Wales who were not members of th Federation. 7

(1) (1929) 43°C.L.R, 29, at p. 32. (3) (1929) 43 C.LLR. 185, at pp. 2 (2) (1928) 41 CLLR. 402. 203. : d

of certain minimum salaries to members of the Federation. For

the demand was a minimum salary of £265 per annum. The employers demanded of the Federation that the schedule of industrial

• conditions set out in their log " should govern the wages . . . of

~ "asthose such employers desire." The rate of pay claimed was £220 per annum for the seventh year of service (which is again taken as atest illustration). The log asked the Federation and the individual employees to reply on or before June 15th, 1927, whether it and they agreed to be bound by the terms set out.

On or about June 22nd, 1927, the employers and the Federation both applied for the holding of a compulsory conference under sec. 16a of the Commonwealth Conciliation and Arbitration Act, and two summonses were issued by the Conciliation Commissioner for the holding of conferences. The two conferences were held at the one time on June 27th, 1927; no agreement was reached between the _ parties and, on the same day, both disputes, one in relation to the Federation's demands, the other in relation to the employers' _ demands, were referred to the Court, under sec. 19 (d), by two orders

• of reference.

The order of reference in the dispute initiated by the Federation alleged the existence of an industrial dispute ''as to the matters set forth in the Ist schedule hereto," which schedule merely set forth the demands in the log served by the Federation.

The order of reference in the dispute initiated by the employers alleged an industrial dispute "as to the matters set forth" in the log of demands served by the employers on the Federation and the individuals mentioned.

On September 23rd, 1927, the Commonwealth Court of Conciliation and Arbitration made a single award in the matters of the two disputes. The representatives appearing informed the Court that an agreement had been arrived at between the parties in respect of all States except Queensland, and thereupon the award was. made "by consent." The employers were named as parties to the award. 'The salary (for the seventh year) agreed upon and specified in

the seventh year of service (which is taken by way of illustration)

_ all their respective employees." The wages scheduled were described ;

The Federation's log demanded of the employers the payment H- ©: or A. 1931,

the award was £225 per annum. The award was to be in force for a period of one year from September Ist, 1927. After Septe Ist, 1928, the award continued in force by virtue of sec. 28 (2) of Act. In pursuance of applications commenced on February 6th, 1 a large number of the employer parties to the award in qi caused a summons to be issued in the Commonwealth Court of Conciliation and Arbitration calling upon the Federation to show cause why such award "should not be varied "' in certain respe and on July 17th, 1931, the Arbitration Court made an order re all wages prescribed in the award by ten per centum. This oper as a reduction of the seventh year's salary from £225 to £202 10s. per annum, which is considerably below £220, the salary which had been mentioned for such year in the log of the employers. Upon the hearing of the summons before the Arbitration Court Mr. G. A. Mooney, representing the Federation, contended " that th Court had no jurisdiction to make the order asked, on the ground that a reduction of ten per centum would cause the wages to b reduced below those contained in the employers' log, and that such order would therefore be outside the ambit of the dispu which were limited on the one hand by the employees' log and on the other by the employers' log." This states the case of 1 employees with precision. The soundness of the contention has now to be examined. But a suggestion has been advanced that, dealing with an industrial dispute in relation to wages, the Arbitration Court is entitled to award or order a wage, as to which there is real disagreement between the parties. It is broadly conte that, although the parties have by their conduct clearly defined th area or extent of their wage dispute, the Arbitrator may ay d wage which is not included in such area. For instance, if an indus dispute as to wages exists between employers and employees, and matter in dispute is whether £200 or £250, or what sum be those two figures should be the standard or basic wage, the C is said to be entitled to award a standard of £150 or £300, or am standard wage it thinks fit. Put more generally and plausibly, ¢ argument is that, if there is in fact a dispute on the subject of wage the Arbitrator may deal with the subject by awarding the w

he thinks suitable. This suggestion is intended to apply to any award or order of the Court, whether made in full or part settlement ofan original dispute, or made subsequently by variation of the terms of any award or order. If the field were clear of decisions there would be much to be said for this argument, which denies the existence of any analogy between an industrial dispute with its innumerable ramifications, and a mere civil dispute between _ individuals, referred to arbitration by formal submission.

But so broad a view of the constitutional and statutory power _ has not been accepted by this Court in regard to wage claims. For é instance, in R. v. Commonwealth Court of Conciliation and Arbitra- tion; Ex parte Whybrow & Co. (1), it was held by Griffith C.J., Barton, O'Connor and Isaacs JJ., that the Arbitration Court had no juris- diction to award a higher rate for apprentices than the rate of wages asked for by the employees. Isaacs J. (as he then was) _ said (2): - "TI cannot escape the judicial conclusion that as to some _ apprentices more has been awarded than was asked for and refused, and therefore more than was in dispute. . . . There is nothing in the world to prevent employers or employees from making their respective demands as wide as they please; but when they choose _ to select one particular limited demand as the subject or point of dispute, and refer that to the Court, then that is what the Court _ hasto decide. It may give anything between the maximum and the minimum limits of the dispute, but it can pass neither further forward . than the maximum, nor further back than the minimum."

Again, when a dispute arose, after a claim had been made by employees for a minimum wage of 13s. 2d. per day, this Court tegarded the Arbitration Court as incompetent, in dealing with that pute, to award a greater sum than 13s. 2d. as the minimum to wern the parties to such dispute (Federated Gas Employees' Indus- ial Union v. Metropolitan Gas Co. (3)). "There would," said sand Rich JJ., " have been no jurisdiction to award more " (4). In dealing with the jurisdiction to determine a new dispute een the parties to the old dispute, Higgins J. said: "True, ere is a power to vary the award on the application of a party

(1) (1910) 11 G.L.R. 1. (3) (1919) 27 C.L.R. 72. 2) (1910) 11 C.L.R., at p. 61. (4) (1919) 27 C.L.R., at p. 81.

Ww AUSTRALIAN InsuRANCE STAFFS' FEDERATIONATLAS Assurance

affected or aggrieved (sec. 38 (0); sec. 39); but as the award canno exceed the ambit of the dispute, neither can the award as varied" (1). Gavan Duffy J. said: " A dispute to be settled by arbitrati means a contest in which a claim, whether moral or legal, is mz on one side and resisted on the other, and the settlement of a by award means the determination of the question at issue between the parties" (2). Powers J. said: '" An industrial dispute about claim for 13s. 2d. a day is, in my opinion, an entirely different dispute from one about a claim for 15s. 6d. a day " (3). In the Gas Case (4) the original claim was for a minimum y¥ f of 13s. 2d. per day, the rate awarded was 12s. 6d. per day, and #l new minimum demanded, at the time when the award had stil twelve months to run, was 15s. 6d. The actual decision was #] the Court was not competent to entertain the new claim, and probably involved a denial of the Court's power to award the wag of 15s. 6d. by way of variation of the old award. The majority « the Justices seem to have accepted this, either expressly or impli When the matter was again adverted to in the Waterside Workei Federation of Australia y. Commonwealth Steamship Owners' A ciation (5), the question raised was not what could be done by altering the award which embodied the settlement of the old dispt t but what could be done in a new proposed award to settle an alleged new dispute. This was pointed out by Higgins J., who als said, " Confusion has arisen from treating the settlement of a conet dispute as if it were the settlement of an abstract subject, such ¢ the subject of minimum wage. The determination of a dis conclusive and binding as to that dispute: but it is not conel or binding as to a new dispute, even on the same subject. dispute in this case is not the same dispute as that of 1914. involves a claim for a different minimum; and it is not even dispute between the same parties " (6). : In BR. v. Commonwealth Court of Conciliation and Arbitration; parte North Melbourne Electric Tramways and Lighting Co. (7), thi Court held that the power of the Arbitration Court to vary aware

(1) (1919) 27 C.L.R., at p. 90. (4) (1919) 27 CLR. 72. (2) (1919 .R., at p. 92. (5) (1920) 28 C.L.R. 209. a (3) (1919) 27 C.L:R., at p. 96. (6) (1920) 28 C.L.R., at p. 236. a

nder sec. 38 (0) applied 'to an industrial agreement, which, by sec. 4, was deemed to be an award. One of the stated conditions, however, was that variation must be "within the ambit of the original dispute" (Knox C.J., Gavan Duffy and Starke JJ. (1) ). The Court could vary, in the phrase of Isaacs and Rich JJ., " within the limits of the dispute " (1).

In the Federated Engine-Drivers' and Firemen's Association of Australasia v. Al Amalgamated (2) this Court, for the purpose of 'inquiring into the jurisdiction of the Court of Arbitration to award certain rates of pay, examined the log of demands made by the "employees. Knox C.J. said (3) : - The answer to that question"

• (of jurisdiction) " obviously depends on what was the ambit of dispute in which the award was made. In the present case that ambit appears to be defined by the demand made by the log and the refusal to comply with the demand." Isaacs J. spoke of "the limits of the dispute" (4) and Gavan Duffy J. of " the area of the dispute " (4) in relation to the matters which the award might 'I wwhully cover. No one ever suggested that it was unnecessary to more than some dispute on the question of wages.

Tt seems to me that these decisions prevent us from affirming any ral power in the Arbitration Court to go outside the subject matter of a wage dispute, and to award a wage, as to which there is 0 disagreement. It is therefore proper to consider whether, the ambit " of the dispute or disputes being dealt with by the Arbitra- Court in the present case was exceeded.

But a question has been raised as to whether the High Court may, an award is made settling a dispute, determine the area of e dispute by means of proceedings taken under sec. 214 of the onwealth Conciliation and Arbitration Act. The decision in ce's Case (5) was referred to and relied upon.

'Sec. 21aa of the Commonwealth Conciliation and Arbitration Act ves jurisdiction to this Court to determine questions which affect jurisdiction of the specified arbitrators to settle or prevent trial disputes which are submitted to them. The first kind of

tion relates to the existence or imminence of the alleged dispute ~ (1) (1920) 29 C.L.R., at p. 111. (3) (1924) 35 C.L.R., at p. 351. (2) (1924) 35 C.L.R. 349. (4) (1924) 35 C.L.R.. (5) (1924) 34 CLLR. 457.

AusTRALIAN: INSURANCE Srarrs" FepERATION v Arias ASSURANCE

or any part of it. Unless there is, or soon will be, a real di covering the necessary geographical area, the Court of Arbit

cise its powers and authorities. But, a that the dispute submitted either exists or is threatened, impendi or probable, other questions may arise which also affect the p of the arbitrator. The section enables the High Court to detern questions of law arising in relation to the preceeding or to an award or order. Typical instances to which the section aj are cases where, in the settlement of an admitted industrial the arbitrator makes or proposes to make an order extending the subject matter of the dispute, or to persons not parties to t dispute.

In relation to the scope of sec. 214a, an analogous case to t] present is Federated Engine-Drivers' and Firemen's As of Australasia vy. Al Amalgamated (1). The award challen

sec. 214A was issued on October 27th, 1924, and t it documents and circumstances from which it determined area of the dispute. The existence of a dispute was concei

and the conclusion as to the area or limits of the dispute was tt as one of law within the meaning of sec. 2144. That, in my opi

asks for a minimum wage of so much per day, per week or pera If so, it asks for two things - the grant of some minimum wage, al the fixing of the amount specified as the minimum. A general refus of the demand therefore denies both the claim to a minimum wag and the fixing of the amount demanded. ;

But in Australia, there has for long been a general recognitio the employees' right to some secured minimum. Consequently, # actual or implied refusal of the demand is regarded from a p common sense view, not as disputing the employees' right to some binding minimum, but merely as disputing the amount ¢ Now, a dispute cannot arise at all if the sum demanded by th

employees is considered by the employers as too low or as an H. ae acceptable minimum : in either of these events, the possibility of - s CU any dispute in relation to the demand is at an end. 2 Sa RES _ Therefore the failure of the employers to comply with the demand - Srarrs' has, naturally and properly, been regarded by this Court, including **P*47™0%

• Higgins J. with his vast experience in industrial matters, as putting

inissue or dispute the question whether the salary or wage demanded

or any lower wage should be the rule in the industry. This was not - Evatt J. because the employers considered that the proper wage was nothing "or (say) 1s. per week, but because their silence on the subject matter, or the general nature of their refusal, was interpreted as meaning 'that the employees' demand could not be granted because the wage claimed was too high - how much too high the employers were not 'prepared to say.

_ The disagreement resulting was said to cover the field of wages from nil to the amount demanded, and the Arbitration Court was msidered to have jurisdiction to award any sum between these This point of view was impliedly recognized in Federated gine-Drivers' and Firemen's Association of Australasia v. Al

But disputes may also spring from the attitude taken by employees to the demands of employers. In some cases the latter also demand at a minimum wage of £4 shall be the wage governing the 'industry. There is an apparent anomaly in the demand of an employer for a minimum wage to be paid, because he pays it, and he liberty to pay more. But here also, it is properly regarded from common sense point of view. The employer's demand in such a teally means that he too desires the fixation of some minimum r standard wage, and that £a is regarded by him as a suitable figure. hen therefore employees refuse to accede to such demand, either ly or by merely ignoring it, as to what is the resulting ment ?

ment is - what wages from £4 downwards. But there can only 4 dispute or disagreement at all in relation to the employers'

nds if these are considered by employees to be unsatisfactory.

H.C. or A. That event postulates that the employees want better terms t] eee those suggested, not worse. Better terms from their point of Avsrrartan mean higher wages. Therefore, if there is disagreement at ge is as to whether the wages awarded shall be those suggested an¢ eat demanded by the employers, namely, £2 or some higher 1 eee ee i.e, better terms from the employees' point of view. How mu Co, Lrp. _ better or higher is not stated by the employees : therefore the dispu : is - what wages - f£z or what higher sum should be the s governing the industrial relationship of the parties. In such a the employees do not expect the award of an infinitely great s any more than the employers in the converse case expect the of no salary at all. But the silence of the employees really

• if it is to result in dispute - ' The standard asked is too lo should be higher - how much higher we are not prepared to s In applying such principles to the present case, the vital point that the employees' demand of £265 as a minimum wage w merely refused. There was a failure to comply with it, and if expressed the whole truth of the matter, the area of minimum y

on employees, and employees on employers, both sets of demat must be considered in relation to the attitude of the opposing' If, therefore, employers refuse a minimum wage of £2 demand

standard. But if employers, instead of a general failure to co themselves state the standard they desire, namely, £y, and, a fortio if they demand £y as the standard, the area of dispute is £2 to and does not extend below £y. as the standard wage, and the employees say nothing on the subj the ambit of the dispute is from £y upwards indefinitely. however, it appears that the standard desired by the employee £x and no higher, or, a fortiori, if the sum they choose to dem as the standard in £2, the ambit of dispute is from £y upward

In the present case the employers' demand was not for a minimum ~ of £220 per annum, but for a governing wage of £220. Their letter asked the Federation to agree to thissum. It refused to agree, because it was demanding £265 as the suitable standard. The employers' log is to be treated as demanding the fixing of a standard, namely,

£220. There could be no disagreement in respect of such log of demands as to whether the standard should be lower than £220, because the employers were willing to pay £220. But the employees' desire was for a standard of £265, and to that the employers disagreed, 4 not merely because it was too much, but because it was too much by £45. And the employees also objected to the standard of £220 _ asked by the employers, not merely because it was too little, but because it was too little by £45. A question has been raised whether the award made on Sep-

tember 23rd, 1927, is to be regarded as having been made in settlement _ of one or two disputes. The formal proceedings prior to that day, _ particularly the orders of reference, point to two disputes. Moreover, _ the parties who were in dispute in relation to the employers' log

• included New South Wales employees, not members of the Union. 'These employees must be regarded as being in disagreement with their employers, and, as to them, the subject matter of dispute as _ to wages was, for the reasons already advanced, what standard ~ wage from £220 upwards should govern the parties. Between the two disputes, there was a lack of complete identity either of subject _ matter or of parties. Between the Federation and the employers, however, the subject tter of wage dispute had, on the date of the compulsory conferences, ich were held together and followed by two orders of reference, become identical. The subject matter of each dispute was - what sum between £220 and £265 should be the standard wage ? It follows that the Court has made orders which went beyond the limits of the dispute originally submitted for settlement, and the question is whether, as the Arbitration Court has held, sec. 28 of the Commonwealth Conciliation and Arbitration Act can be invoked 8 a special authority for what has been done. The power given by sec. 28 (3) of the Act is to be exercised only where the Court is satisfied that circumstances have arisen " which

H.C. or A. affect the justice of any terms of an award." If so satisfied,

Court may "set aside or vary" terms which, because of injustice, should operate no longer. The power, therefore, only to the terms of an existing award. The period of continua of such award has to be specified in it (sec. 28 (1) ), but, after the expiration of such period, it continues in force " until a new award has been made " (sec. 28 (2) ). Such "new" award refers to award made " for the settlement of a new industrial dispute." The authority conferred by sec. 28 (3) may be exercised be or after the determination of the period specified in the award ; b the exercise of the power is treated as distinct from the making « a new award in settlement of a new dispute. As a matter | construction, therefore, it is reasonably clear that the object sec. 28 (3) is to enable the Court of Arbitration to exercise the po to set aside or vary, only in relation to the industrial dispute, wl is and may be called " old " in that it is regarded as being "se by the award, but which is treated as still surviving, because such settlement may be revised and its terms altered. The power i sec. 28 (3) may be exercised in such manner as the Court of Arbitr thinks fit - notwithstanding anything contained in the Act, and Court proceeding may, but need not be, the same as that iny the award was originally made. But the jurisdiction is still referable to the dispute in settlement of which the Court made its old ay The Full Court of Arbitration, impressed, no doubt, by the difficult in the cases before it, of founding jurisdiction in respect of son of its orders, gave an entirely different application to sec. 28 The view it adopted was that sec. 28 (3) could be applied to an entit new dispute - ''a dispute as to the alleged injustice" of the old award, the parties to the new dispute being the " employers and employees who are parties to the application to set aside or vary 3 under sec. 28 (3). The alteration of the old award resulting fron setting aside or varying its terms "is in substance the making of new award upon the new dispute." Such was the reasoning. The theory advanced is both subtle and attractive. Behind the truth that the Court of Arbitration may prevent, as well as a dispute, and prevent by means of arbitration, as well as conci (Merchant Service Guild of Australasia v. Newcastle and Hunter k

Steamship Co. [No. 1] (1)). The new dispute is called by the Court a "new contingent dispute," the Court inferring from the attitude of the parties before it that, although no actual dispute has yet arisen between the parties out of Court, such a dispute is so probable as to be certain : and the subject of the dispute may also be inferred from the conduct of the proceedings.

I do not think that there is anything in the constitutional power which prevents the making of such an inference as to the probability of a dispute, or the exercise of the award making power to prevent it. The real objection to the theory is, in my view, the true scope and meaning of sec. 28 (3) itself. In my opinion, the Court may exercise its jurisdiction under that sub-section on an application to it by any party to the old award. It is not essential to the power that there should be any impending dispute as to the justice of the terms of the award. In a six-State dispute settled by an award, the power may be exercised on the application of a single party to the award or of parties from one State only (sec. 39). That may not be sufficient to convince the Court of the justice or wisdom of altering the award. But an award may be found to operate unfairly in one State and fairly in five. None the less, the power under sec. 28 (3) may be exercised. Such power, in other words, is not intended for dealing with a new dispute, actual or probable. If it were so, an actual or probable extension of a dispute beyond the limits of ~ one State would be constitutionally necessary. But, under sec. 28 (3), _ the Court may terminate the old award altogether, or set it aside so far as it concerns a party or parties in one State only, or in more than one State. In certain circumstances it may even act so as to give a State tribunal full authority in respect of parties and subject matter in that State. If this view is right, itis clear that the power n sec. 28 (3) cannot be regarded as a statutory authority to the Court to make a new award for the purpose of preventing the coming into existence of a new dispute.

The only possible warrant for the orders made is sec. 388 of the But it was not suggested in argument here or before the itration Court, that the terms of sec. 388 were a sufficient legal s for what was done. The only argument in support of this

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could be that, if sec. 28 (3) does not allow the Arbitration make what is substantially a new award in prevention of an ind dispute, sec. 388 gives a general power to make orders in preven of a dispute. No doubt this is an important section of the Act, it must be read with sec. 19 and sec. 28 itself. Sec. 28, as ori

fact that although the period specified duly elapsed, and a newdis between the parties at once occurred, the new award could cover the period between the Court's obtaining cognizance of th new dispute and the date of the new award (Waterside Workers' Ca (1) ). Hence the amendment in No. 31 of 1920, sec. 13, adding proviso to sec. 28 (2).

But members of this Court had also questioned the power to set aside or vary the old award whilst it was continued in force by sec. 28 (2). Isaacs and Rich JJ., in the Waterside Workers' Cs (2), said: " . . . on fuller consideration we think Parli has not given the power of variation after the specified period ha: elapsed." Hence the addition of sub-sec. 3 of sec. 28 in Octol 1920, several months after the opinion expressed by Isaacs Rich JJ. These amendments were both related to the prim command in sec. 28 (2) that, after its term had expired, the old av was, by force of the statute, to remain in force until a new one wa made. Subject only to the proviso to sec. 28 (2) and to see. 28 (3 the scheme of the Act was that the old award was to be followe by a new award in relation to a new industrial dispute of which th ; Court would acquire cognizance in one of the four ways mentio in sec. 19, but in no other way.

In my opinion, that part of sec. 388 which empowers the Arbitrai Court to make orders for the purpose of " preventing furth " industrial disputes " has no application to any alteration of an award which is being carried on by sec. 28 (2) until a new award is mad This was impliedly recognized in the Gas Employees' Case (3): 388 was then in force. If sec. 38B could have been invoked by

(1) (1920) 28 C.L.R. 209. (2) (1920) 28 G.LR., at p22. (3) (1919) 27 GL. :

Arbitration Court, it is reasonably clear that it would have been. In short, sec. 28 (3) is the code dealing with awards carried on by

• sec. 28 (2). The only power in the Arbitration Court, after the expiry 'of the award, is to set aside any or all of the terms of the award, or to vary the terms within the ambit of the old dispute. The settlement of the old dispute may thus be altered or revised, or it may ~ continue as a settlement no longer. But if it is decided to revise, _ the new settlement must not trespass beyond the subject matter as to which there was a dispute between parties, duly settled by the _ old award.

It is noticeable that in 1916, when Higgins J. was President of the Court of Arbitration and was making an award in order to prevent an industrial dispute extending beyond the State of Queens- land, the procedure followed was in accordance with sec. 19 (a) of the Act, the Registrar certifying the impending dispute as proper to be dealt with by the Court in the public interest (Waterside Workers' Federation v. Commonwealth Steamship Owners' Association ; Ex parte Commonwealth Steamship Owners' Association (1) ): sec. 38z was then in force.

The Arbitration Court has also suggested that one express object _ of sec. 28 (3) was to empower the Court to grant a demand " outside the ambit of the dispute in respect of which the award had been made" by enabling it to "set aside or vary " any unjust terms of such award (Entrepreneurs Association of Australia v. Australian Theatrical and Amusement Employees' Association (2)). To "set aside or vary" is an astonishing phrase to use for the expression of such an idea. In my opinion, the question of empowering the Arbitration Court to go beyond the limits of the dispute before it, was not being considered by Parliament at all in the amendment of 1920; and, for reasons already given, it was not the purpose of Parliament to deal by such amendment with the preven- tion of a new dispute by means of an amendment of the old award. The opinion to which I have come is that none of the challenged ers of variation, which gave effect to a ten per centum reduction of wages, were made in settlement of any dispute between the Federation and the employees. All the variations fixed a wage

(1) (1916) 10 C.A.R. 429, at pp. 432-433, (2) (1931) 30 C.A.R.

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1931, Ww AUSTRALIAN InsvRance Srarrs' Feppration v Arias AssuRANCE

considerably lower than £220. The only wage disputes be the parties over which the Arbitration Court had jurisdiction und the statute, were disputes as to an adult standard, not exceeding £265 on one hand and not less than £220 on the other. The am! wage dispute was still narrower in some cases. In no case did extend lower than £220 for the test year of service. Nor can the variation be justified under sec. 28 (3) as an award made for purpose of preventing a new dispute, because that sub-section directed merely to the alteration of the terms of settlement of th old dispute. The awards in the present case may be set asi altogether, but, if their terms are varied, the altered awards m not exceed the limits of the old disputes. In the present ci stances, sec. 388 does not authorize the making of a new award prevention of a new dispute between the parties to the procee for variation, although the conduct of parties during such proei ings may warrant an inference that a new dispute is impending or probable. After the period specified in an award has expired, n

new award in exercise of the "preventive " jurisdiction of Arbitration Court can be made, except in pursuance of sec. 19 of the Act. :

McTiernan J. On 6th February 1931 a number of insura companies, which were bound by an award of the Commonw Court of Conciliation and Arbitration made in a proceeding entit "In the matter of the Australian Insurance Staffs' Federati claimant, and the Atlas Assurance Company Limited an respondents, No. 59 of 1927, and also the Accident Underwri Association of New South Wales and others, claimants, and Australian Insurance Stafts' Federation and others, respondents, 61 of 1927," caused a summons to be issued out of that Court by wh they applied for an order varying the award in the manner menti inthe summons, that is to say, inter alia, by reducing all wages fi by the award in accordance with the fall in the cost of living s it was made, and then reducing the wages so ascertained by percentum. On the same day and on the 9th February, respecti similar summonses were issued at the instance also of a number o

employers who were bound by awards of the Court, made subsequently to that above mentioned, in proceedings entituled, respectively, "Tn the matter of the Australian Provincial Assurance Association Limited and others, claimants, and the Australian Insurance Stafis Federation and others, respondents, No. 165 of 1927, and also the Accident Underwriters Association of New South Wales and others, claimants, and the Australian Insurance Staffs' Federation and others, respondents, No. 166 of 1927," and "In the matter of the Accident Underwriters' Association of New South Wales and others, claimants, and the Australian Insurance Staffs' Federa- tion and others, respondents, No. 161 of 1928," and " In the matter of the Australian Insurance Staffs' Federation, claimant, and the Australian Pastoral Fire and Marine Assurance Company Limited and others, respondents, No. 20 of 1928." These applications came on for hearing before the Full Court of the Commonwealth Court of Conciliation and Arbitration, which on 17th July 1931, made orders varying those awards by reducing all wage rates prescribed thereby and payable thereunder by ten per centum.

The Australian Insurance Stafis' Federation, an organization of employees registered under the Commonwealth Conciliation and Arbitration Act 1904-1930, applied by way of summons under sec. 21aa of that Act to this Court for a decision on questions of law which have arisen in relation to the above-mentioned orders of _ the Commonwealth Court of Conciliation and Arbitration. The questions are set out in the summons. This summons came on for hearing before Starke J. on 3rd September 1931, who, pursuant to sec. 18 of the Judiciary Act 1903-1927, ordered that it be argued before the Full Court of the High Court. The validity of each of the orders must, in my opinion, depend on the question whether it was made within the ambit of an industrial dispute of which the Court had cognizance. Thus two questions arise: 1. Was the variation which was ordered to be made in each case, within the _ ambit of the industrial dispute for the prevention and settlement of which each award was made? 2. If the answer to this question _is in the negative, was such order within the ambit of another industrial dispute of which the Court had cognizance ? The validity of the test proposed in the first question is, in my opinion, well

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we AUSTRALIAN 'INSURANCE Srarrs' FEDERATION v. Arias ASSURANCE Co. Lip.

established by the authority of decisions of this Court. v. Commonwealth Court of Conciliation and Arbitration; Ex Whybrow & Co. (1), Isaacs J. said (2) : - * And in my opinion Court had no greater jurisdiction to award a higher wage than va asked, than it had to reduce wages below what were actually ip dispute. It is the dispute that has to be regarded and adjudica upon. In deciding the dispute, it must always be remembered as stated by Lord Macnaghten in Midland Railway Co. v. b and Carnley (3): 'In coming to his determination it must be ope to the arbitrator to investigate and determine any question 7 to that referred to him - any question which must be determined in order to determine finally the point in difference.' There is not]

in the world to prevent employers or employees from making respective demands as wide as they please; but when they to select one particular demand as the subject or point of disp and refer that to the Court, then that is what the Court has to deci It may give anything between the maximum and the minimu limits of the dispute, but it can pass neither further forward tl ' the maximum, nor further back than the minimum. As unfo

nately the maximum has been passed, the award is in resper that branch invalid." (See also R. v. Commonwealth Court o Conciliation and Arbitration; Ex parte Broken Hill Pty. Co. ( Merchant Service Guild of Australasia v. Commonwealth ship Owners' Association (5); Waterside Workers' Federation of Australia v. Gilchrist, Watt & Sanderson Ltd. (6); Austral Commonwealth Shipping Board v. Federated Seamen's Union Australia (7); Federated Engine-Drivers' and Firemen's Ass of Australasia v. A1 Amalgamated (8).) This principle may now be applied to the present case. At # time the orders varying the above-mentioned awards were m these awards were continuing in force by the operation of s of the Commonwealth Conciliation and Arbitration Act. The varied the awards so as to reduce the rates payable there! below the rates mentioned in the employers' logs to which refere

(1) (1910) 11 O.L.R. 1. (5) (1920) 27 C.LLR., at p. 564

(2) (1910) 11. C.L.R., at p. 61. (6) (1924) 34 CLLR. 482, at pp. 5 (3) (1899) A.C. 133, at p. 137. 547.

(4) (1909) 8 G.L.R., at p. 439. (7) (1925) 35 C.LAR., at p. $82

will now be made. A typical instance of the effect of the orders varying the awards is that the rate prescribed to be paid to an

a log on the employers, which are parties to the award first above- mentioned. That log states : "' The following shall be the minimum salaries . . . to be paid to . . . members of the above The log proceeds : -

Federation in the insurance industry.' "Clause 1. Rates of Pay. Except as hereinafter provided the minimum rates of pay to be paid by the respondents to members of the Federation shall be as follows"; then, in a list headed "Seale of Rates of Pay for Males," there appears, for example, "7th year of service, £265 per annum." It was contended that the effect of this log was to fix the upper limit of the dispute which arose from it at the scale of rates specified, but, in the events which happened, the nether limit of the dispute was not fixed, and a variation of the award fixing, e.g., the rate of pay for an employee in his seventh year of service at £202 10s. is therefore within the ambit of that dispute. In the view which I hold, it is not necessary to consider whether this contention correctly describes the ambit of the dispute which arises from the above-mentioned log, considered apart from the events which supervened. On 30th May 1927 the employers served a Jog on the applicant Federation and a number of employees who were not members of the Federation. This log is addressed; "To the Australian Insurance Stafis Federation and to all employees of Assurance and Insurance Companies Underwriters Associations, on whom this log will be served It States : - The employers on whose behalf this log of wages and conditions of employment is served, . . . claim that the wages

and conditions under which their employees are at present working 'should be altered. They claim that all existing awards, agreements and practices should be determined, and that this log should govern _the wages and conditions of employment of all their respective employees, whether members of any organization or not. The following are the wages and conditions such employers desire." Par. 2 is headed: "Rates of Pay." In this paragraph appears,

employee in his seventh year of service, namely, £225 per annum, Avsrratian

On the Mth May and on the 1st June 1927 the employees served co

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inter alia, " 7th year of service, males, at the rate of £220 per annum. In my opinion, in the result, there were not two separate industrial disputes. There was, I think, but one dispute and its ambit must - in this case be determined by considering the two logs in apposition, one to the other. The employers' log fixed the lower limits of the - dispute as to rates of pay. The dispute which arose had, in nye opinion, limits which were discernible, and it did not include any issue or contention, for example, that the salary to be paid to an employee in his seventh year of service should be less than £220. per annum, the rate mentioned in the employers' log. In view of the employees' and employers' logs respectively in this case, it would, in my opinion, be quite contrary to the known facts to say that the employers and employees were in dispute on the question whether less than the rates mentioned in the employers' log should be paid to their employees who would be bound by the award. The Court could not, consistently with the authorities which I have mentioned, have prescribed, for example, less than £220 for an employee in his seventh year of service, when it made the first awerd. It would be peculiar for the Court, in prescribing a rate of wages as part of an award for the prevention or settlement of a dispute, to force upon employees a lower rate of pay than that which the | employers said they would pay them, or to compel the employers - to pay a higher rate of wages than that which the employees said they claimed. Such an award would travel outside the termini of the dispute in which the parties were engaged. Instead of settling the dispute, it may, in fact, widen it. But whatever its - result in fact, such an award, particularly if made in invitos the parties, could not be said to settle the dispute of which the Court had cognizance. The Court, therefore, could not originally have awarded less than the rates mentioned in the employers' log. The order varying that award - unless it can be otherwise supported - is bad because the variation of the award which the order purports - to effect is beyond the ambit of the dispute of which the award is : the outcome. The principle contained in the statement which I _ have quoted from R. v. Commonwealth Court of Conciliation and Arbitration ; Ex parte Whybrow & Co. (1), is also fatal to the validity

of the orders varying the second and third awards respectively. The second award was the outcome of two logs which were served by the employers, one of which echoed the terms of the log which was served before the first award was made and the second log echoed the rates which were prescribed by that award. The third award is founded on a dispute which arose from the service of a log by the employers which also echoed the rates prescribed by the first award.

The proceeding No. 20 of 1928 was instituted by the service of a log by the Australian Insurance Staffs' Federation upon a number of employers, which included employers operating in Queensland. The Court, in making the award, said that "in the circumstances no sufficient reason has been shown for the extension of the award to Queensland," and that the award would be made "in respect of respondents in Victoria and New South Wales." The terms of the award are similar to the log, and the log sets forth rates which were prescribed by the award which was already in existence. The award which was made in these circumstances is well described by the learned Chief Judge of the Commonwealth Court of Conciliation and Arbitration in his judgment in the Full Court as a ' proceeding." The employers upon whom the log was served did not, it is true, on their part serve a log stipulating the rates which

they would pay. In this case it does not appear to me that it can be contended that the employers claimed that the rates should be lower than those mentioned in the log, even downwards to nil. Viewing the matter in the light of the principles stated in Federated Engine-Drivers' and Firemen's Association of Australasia v. Al Amalgamated (1), 1 do not think that there was a dispute between the employers who were served and the employees that the rate of salaries to be paid to them should be lower than what was provided by the award, which was in force in the "industry."

It becomes necessary, therefore, to consider the second question above mentioned, namely, whether the order varying the award Was within the ambit of another dispute of which the Court had cognizance. In its reasons for making the orders which are now in question, the Arbitration Court recognized the necessity for the

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• the power, which, in its opinion, sec. 28 (3) conferred upon it.

existence of another dispute and founded its order upon the exi

of a "contingent dispute," the occurrence of which, it held, w contemplated by the Legislature in enacting sec. 28 (3) as a b

for action under that sub-section. The Court decided to e

in my opinion, sec. 28 (3) does not empower the Court to award outside the ambit of the dispute which that award dete nor does it empower the Court to act otherwise than for the purpo of determining an industrial dispute. If the Court should vary award within the ambit of the original dispute, it would be in the language of sec. 28 (3), "in the same proceedings " as t original dispute. Should it make an order at variance with 1 terms of an existing award, which would in substance be a new awar the Court would be acting "in another proceeding," that is to sa for the purpose of preventing or settling another industrial disput which it had cognizance. This, in my opinion, is the meaning should be given to the words "in the same or another proc The object of sec. 28 (3) was, I think. to get rid of the restriction the power of the Commonwealth Court of Conciliation and Arbitt which was discovered in Federated Gas Employees' Industrial Unio v. Metropolitan Gas Co. (1) and in Waterside Workers' Federation of Australia v. Commonwealth Steamship Owners' Association (2). was decided in those cases that, during the period specified by th Court for which an award was to continue in force, the Court not, in the existing state of the legislation, make another aw changing the settlement already made even if grave circumst unforseen when the award was made, occurred and a new di happened concerning matters which were dealt with by the award. The section has removed that restriction. Thus, if #l ambit of the original dispute is not wide enough to enable the Co to vary an award in the manner in which it thinks fit, havin regard to the circumstances described in sec. 28 (3), the Court i empowered by the sub-section to act, notwithstanding the existi award, if there is a new dispute of which it has cognizance "circumstances have arisen which affect the justice of any te an award." In the present case all that occurred was, that

ummonses were served in respect of the awards which have been 4. ©. or A.

tioned calling upon the respondents to the summonses to show oes

why they should not be varied. The respondents appeared Avsrratiay

nd contested the applications before the Court when the summonses plea

e on for hearing. 'There was not, in my opinion, any " industria] "*P®®47% spute " upon which the orders which were made could be founded. ees is. 18, 19, 23 and 24 of the Commonwealth Conciliation and Arbitra- Co. Lr. Act; Caledonian Collieries Ltd. v. Australasian Coal and Shale meviernan 5. Employees' Federation [No. 1] (1) and Caledonian Collieries Ltd. v. Australasian Coal and Shale Employees' Federation (No. 2] (2).)

In my opinion the questions should be answered in the negative.

Solicitors for the applicant, Frank Brennan & Co. Solicitors for the respondents, Moule, Hamilton & Derham.

(1) (1930) 42 C.L.R. 527. (2) (1930) 42 C.L.R. 558.