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

Australian Insurance Staffs' Federation v Atlas Assurance Company Limited [1931] HCA 35 - HCA 1931 case summary — Zoe

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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

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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

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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

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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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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 ¢

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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

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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

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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

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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

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