Australian Tramway and Motor Omnibus Employees Association v Commissioner for Road Transport and Tramways (NSW) [1935] HCA 77

Held, by Latham C.5., Rich, Starke, Evatt and McTiernan JJ., that 28 (3) of the Commonwealth Conciliation and Arbitration Act 1904-1934 d not preclude the Court from altering the terms of the award so that alteration shall operate from a date prior to the date of alteration; and, Dixon J., that sec. 38 (0) of the Commonwealth Conciliation and Arbit

alteration made pursuant to sec. 28 (3) of the Act.

An award made by the Commonwealth Court of Conciliation and Arbitrat in 1927 was expressed to continue for three years. Upon the expiration 5 that period the award was continued in force by virtue of see. 28 (2) of the Commonwealth Conciliation and Arbitration Act. Several alterations of th terms of the award were subsequently made. One, dated 17th April, introduced into the award a new clause, the effect of which, so far as con

employees in New South Wales, was to introduce provisions of State law prescribing for unmarried men a lower rate of wage than that for married men. 'This clause was, in April 1935, declared by the High Court to be invalid and severable (Australian Tramway Employees Association v. Commissioner for Road Transport and Tramways (N.S.W.), (1935) 53 C.L.R. 90), so that the respondent, the Commissioner for Road Transport and Tramways (New South Wales), became liable to pay a large sum of money by way of additional wages as from 17th April 1934. To avoid this liability the respondent applied to the Commonwealth Court of Conciliation and Arbitration for a further variation of the terms of the award. That Court, in July 1935, made an order of variation which excluded the respondent from the order of April 1934 as from the commencement of its operation, declared his liability for wages calculated according to the award unaffected by that variation during the period ended April 1935, as from that time prescribed a new method of wages adjustment, and provided against the repayment by employees of wages over- paid and against double payment by the respondent. 'The liability of the respondent was thus limited to the amount by which wages calculated by applying retrospectively the provisions of the order of July 1935 exceeded the wages actually paid.

Held that the order of variation made in July 1935 was valid.

Summons under sec. 214a of the Commonwealth Conciliation and Arbitration Act.

Tn a summons taken out by the Australian Tramway and Motor Omnibus Employees Association - formerly the Australian Tramway _ Employees Association - under sec. 21aa of the Commonwealth Conciliation and Arbitration Act 1904-1930 the questions for decision were : - (a) Whether a variation made by the Commonwealth Court of Conciliation and Arbitration on 12th July 1935, purporting to vary an award (1), as varied, by which both the applicant and the respon- dent were bound, was not invalidly made on the grounds : - (i) that it was neither relevant to the original dispute nor incidental or conducive to its settlement ; (ii) that its effect was to lower the _ wages of certain employees in the industry in relation to the wages of other employees merely on the ground that they were employees of a State instrumentality ; (iii) that its effect was to discriminate between the wages of employees of the respondent and those of other

: employees on the ground that the respondent was a State instrumen-

tality ; (iv) that its effect was to introduce for the first time in the _ industry discrimination between employees in the industry by

AUSTRALIAN TRAMWAY AND Motor Omnreus Emp.oyrEs ASSOCIATION

lowering the wages of employees of the respondent cover the award on the ground merely that the respondent State instrumentality; (v) that the dispute which the va purported to settle was a dispute between the respondent and it employees covered by the award and no others as to w

to the reductions made in the wages of other employees by s legislation and that the dispute was neither inter-State in its cha nor part of the dispute which the award purported to settle.

and Arbitration had jurisdiction to make the variation. (c) Wheth the variation was within the area or scope of the industrial dis within the cognizance of the Commonwealth Court of Conciliat and Arbitration.

on Ist October 1927, and was expressed to continue for a peri three years. That period having expired on Ist October 1930, # award continued in force by virtue of sec. 28 (2) of the Commonweal Conciliation and Arbitration Act. Several alterations of the term of the award were subsequently made. A variation made on ITt April 1934, introduced into the award a new clause, numbered 3 which provided for a wage discrimination between married and s men employed by the same employer. This clause was held by the High Court to be invalid but severable (Australian Tra Employees Association v. Commissioner for Road Transport and ways (N.S.W.) (1)). Under the remaining clauses of the award there was a liability on the respondent Commissioner to pay to the tram way employees covered by the award the sum of £42,000 by way 0 additional wages for the period of eleven months commencing from 17th April 1934. The number of employees covered by award was 4,490. There were about 4,525 employees of the Com sioner not covered by the award whose wages during that perio were actually reduced in a corresponding degree by virtue of s legislation. To avoid the liability referred to above the Commission' applied to the Commonwealth Court of Conciliation and Arbitratio for a further variation of the terms of the award. That Court

sidered the matter and resolved, on 12th July 1935, that it was just and fair that an order should be made carrying out its original intention in respect of the period of eleven months that ensued upon the award. In the course of its judgment the Court said : - 'This Court when giving its decision of 17th April, 1934, upon the union's application to rescind the ten per cent reduction order, tended only to grant that rescission subject to the introduction of new basic wage and adjustment, and in the case of employers like the applicant Commissioner, also subject to the power to reduce in ordance with relevant State enactments, provided that the egate reduction did not bring the award rates down more than per cent below what they were until this Court's ten per cent reduction operated. The High Court's decision (1) that the proposed vag clause is invalid so far as the applicant is concerned, clearly efeats the intention of our order. Mr. Ferguson on behalf of the nion contended very strongly that the financial position of the New South Wales tramways had so improved since our first order hat the Court should not, even in respect of the past period of leven months now in question, endeavour to give effect to its 'intention. But we do not think that financial improvement is sufficient to justify us in departing from our original opinion that the financial position of employer parties who are State transport authorities demanded special relief. We are satisfied that in respect of State transport services we would not have been warranted in

some such provision as was intended to be made in the invalid clause

We are now concerned only with the eleven months which sued upon our decision, during which period, in our opinion, it fair that within the ten per cent limit the Commissioner should have the power, so far as it could be constitutionally given to him, to reduce the wages of his employees in the same way as the wages of other State employees were reduced by statute. We think we should now make such an order as will best carry out our intention in respect of the eleven months period. . . . In view of the that the order, with the proposed new clause 35 declared void, no longer fulfils this Court's intention as to the New South Wales

AUSTRALIAN TRAMWAY AND Motor OmnNrBus EMPLOYEES AssocriaTION v Commis- SIONER FOR Roap 'TRANSPORT AND TRAMWAYS:

Association v Commis- SIONER FOR Roap TRANSPORT AND

tramways, we think the most appropriate course is to set aside th order, but only if at the same time we make such provisions { ensure fairness to all concerned as are within our jurisdiction in t] proceedings before the Court. By setting aside the order we wi reopen, so far as the New South Wales tramways are concerne the union's application of 24th January, 1934, to rescind the per cent reduction order of 16th September, 1932. . . . Weh given very serious consideration to the case and have con ude that the fairest action open to us is as follows : - As to this applicati¢ of the Commissioner, the order of 17th April, 1934, is set aside . but subject to certain provisions as to payments and other matter which are inserted in the order now made. As to the

of the new basic wage and its adjustment, and as to allowiii ih set-off referred to in the order to be made upon the Commission er' application. Substantially the result of the orders now made to tl tramway employees now in question is this. For work done the beginning of the first pay period in April, 1935, they were nd are entitled to award rates subject to the ten per cent reduction orde of 16th September 1932 (1), as modified by the order of 29th M

1933, but only thereto except so far as they have actually paid more by the Commissioner. For work done since the beginni of that pay period, they have been and are entitled to the a rates free from the ten per cent reduction, but subject to the change made by the adoption of the new basic wage and method of adju ment. They will not have to make any refunds. For the re already stated no difference is made between married and single as such, but where employees have actually received payments i excess of what would be due to them under the award as now varied

eases of married men, but the provision made is general and does

The summons under sec. 214 was referred by Evatt J. into the Full Court of the High Court, and it now came on for hearing.

by the Arbitration Court on 12th July 1935, is a variation of an award and as such, in order that it may be valid, must be within the ambit of the dispute in which the award was made in 1927. It is not within that ambit. It arises out of the attempt by the _ Arbitration Court to apply in the Federal sphere reductions imposed _ by the Legislature of New South Wales. This attempt was made, first, directly by way of the clause 35 which was declared invalid _ (Australian Tramway Employees Association v. Commissioner for Road Transport and Tramways (N.S.W.) (1)), and now indirectly by maintaining the ten per cent reduction in New South Wales only for "this purpose. When this matter was previously before this Court (1), the Court followed Australian Insurance Staffs' Federation v. Atlas Assurance Co. (2) and held that, although separate logs of demands were presented by the employers and the employees, there was never- _ theless one dispute only, which ranged between the lowest term offered by the employers, that is, the basic wage on the Harvester standard, and the highest rate demanded by the employees. The invalid clause 35 provides the key to the subsequent history of this matter. An attempt has been made to engraft a determination in this local New South Wales dispute upon an award made in the original dispute, to which it is completely unrelated. The disputants here are entirely different from the disputants in the Federal dispute, who have no interest in the New South Wales dispute. The Federal Arbitration Court could not get cognizance of this new and intra- _ New-South-Wales dispute per se; hence the attempt to engraft it on j the original Federal dispute by variation of that award. The only : : j

way it could have been done was by the Federal authority vacating

• the field in New South Wales wholly, in which case the State law _ would have had its own incidence and operation. Those State
• Statutes had no relation to any particular industry, still less to the

J. A. Ferguson (with him Gee), for the applicant. The order made Assocration

AUSTRALIAN TRAMWAY AND Motor OmrBus Employees ASSOCIATION:Commis- SIONER FOR Roap

tramway industry, or to any particular work. They were upon percentage reductions according to whether a wage was h or low; they also took into account whether the men were or married, or were widowers with children, and had no relatio whatever to any particular job or industry. When the matte came before the Arbitration Court on the second occasion that dealt with the matter on the footing of making an order in substi tion for the order which had failed under clause 35, for the purpo of applying to the award reductions substantially equivalent to th imposed by the State law. The Court did not apply its mind 1 what, if anything, in the ordinary industrial sense ought to be taken off the award within the ambit of the dispute. The fact tha the original dispute was in respect of wages does not determine matter ; the question stillis: What is the dispute which was to be dealt with in the award, and does the variation applicatio relate to that same dispute? Under the guise of a variation there i brought before the Court a matter which was never part of the dispute and something is sought to be done indirectly which could not be don directly (R. v. Commonwealth Court of Conciliation and Arbitration Ex parte Broken Hill Proprietary. Co. Ltd. (1): R. v. Common Court of Conciliation and Arbitration; Ex parte Whybrow & Co. (2) Australian Insurance Staffs' Federation v. Atlas Insurance Co. In addition to introducing a new general subject matter confined New South Wales and alien to the original dispute as unconn therewith, the order complained of introduces two grounds of discrimination between employees which were never in disput between the parties to the Federal dispute: (a) That wage rat

should be lowered in New South Wales because of the existence im that State of State legislation imposing special statutory deductii from the wages of State servants owing to the financial exige of that State, and that consequently tramway employees should be paid lower rates in New South Wales than elsewhere in Australi and lower than the value of the work as work would demand ;

(1) (1909) 8 C.L.R. 419, particularly (2) (1910) 11 C.L.R. 1, at pp. 32, 33 at p. 450. 60, 6. (3) (1931) 45 C.L.R., particularly at' pp. 420, 421.

least one State, New South Wales. These grounds of discrimination,

or indeed any ground of discrimination between employees - except

in the relative status or rank or operations of the employees - were never a part of the original dispute. The order introduces a

"discrimination as to the method of calculating and reaching the

Harvester standard during the eleven months between the date of the promulgation of clause 35, and the date when that clause was

~ declared invalid. It was not part of the original dispute that there

should be at the same time operative in different parts of the area two different methods of calculating the Harvester standard (dus- tralian Tramway Employees Association v. Commissioner for Road Transport and Tramways (N.S.W.) (1)). The fact that different conditions apply in different places owing to different local cireum-

stances does not affect the matter. The varying in the order of

July 1935 of the system of arriving at the basic wages in New South Wales, which was the same system as for all the other States, cannot be justified on the ground that it was varied for the purpose of relieving the financial position in New South Wales. Rates of wage specified in an award must be ascertained in accordance with the system then known and applied from time to time. Sec. 388 of

_ the Act does not, by virtue of its terms, extend any power to go

beyond the ambit of the dispute. The order perpetuates in a modified way the discrimination between the wages of married and

_ single men, as the married men are, in respect of the period of eleven

months permitted to retain the whole of the wages paid to them under the order of April 1934, although in excess of the wages which would otherwise be due to them under the order of July 1935. The order is also outside the ambit of the dispute because the retrospective payment of wages was never part of the subject matter of the dispute. The dispute contemplated that wages for work done should be paid weekly, with a guarantee of two weeks, and that that should be regarded as a closed matter. Having regard to the nature of the claims, at no time could the Court make a variation retrospectively varying wages which had been paid. The variation made was not made in the proper exercise of arbitral power inasmuch as the mind of the Court was not directed to the extent, if at all, and the

AUSTRALIAN 'TRAMWAY axp Motor OmyTBus: EmrLoye ASSOCIATION v Comis- SIONER FOR Roap

H.C. oF A. conditions under which, reductions should be made in the wag employees covered by the Federal award, including those w i the State of New South Wales. The Court, in the first ins ea aia attempted, by clause 35, to extend discretionary power to mak reductions in the wages receivable under the Federal award to $

'' authorities in respect of their servants, and, when that clause was

Comms: declared invalid, substituted as a general measure in New s SIONER FOR Roap 'TRANSPORT

Wales, a ten per cent reduction as representing as nearly as might be the equivalent of the amount which might, but need not, have withdrawn from the wages under clause 35. An order of the Arbi

• _"" tion Court is not good unless it is an exercise of the arbitral po conferred upon the Court. The Court cannot legislate; it must investigate the particular matter of inquiry. There was never examination as to whether anything, and, if so, how much, shot be taken off the wages of the Commissioner's employees. re-imposition in New South Wales of the ten per cent reduction in wages accompanied by certain other clauses was not an act done in any respect in relation to the dispute between the parties settled by the award or pursuant to the condition of sec. 28 (3) of the A but was a method used to make applicable to the award, as far ai possible, certain State wage reductions not based on the condition of individual industries as such, but general in character, and a form which it was thought might be a valid substitute for a previo invalid order. As the original or specified term of the award had expired, an order for variation could be made only pursuant to the power contained in sec. 28 (3), and subject to the conditions ther Though sec. 38 (0) gives a power of variation, which may be exerci during the specified term of the award, and it has been held orders of variation made thereunder may be retrospective to beginning of the award to correct errors &c. in the award, a different position arises as to the power conferred in sec. 28 (3), that is, wl the award is being continued under the statute until a new awart has taken its place (see Waterside Workers' Federation of Australia V Commonwealth Steamship Owners' Association (1); Australian Insurance Staffs' Federation v. Atlas Assurance Co. (2); R.

'ommonwealth Court of Conciliation and Arbitration and Australian H. ©. o A.

Railways Union ; Ex parte Victorian Railways Commissioners (1)). 12%;

During the currency of an award it may be varied either under Avsrrarian J ig y

. . TRAMWAY ec. 38 (0), or, in a proper case, under sec. 28 (3) (Australian 4xp Motor

Commonwealth Shipping Board v. Federated Seamen's Union of yO¥S18Us Australasia (2) ). Even if the decision in R. v. Commonwealth Assoct ourt of Conciliation and Arbitration ; Ex parte North Melbourne Comins. Blectric Tramways and Lighting Co. Ltd. (3) be correct as to ear ae he retrospective operation of the power conferred by sec. 38 (0), etn decision does not necessarily apply to the operation of TRamways

. 28 (3), under which the circumstances are entirely different. Here there is no power to make a retrospective order. The power to vary a statute-prolonged award is conferred by sec. 28 (3) only, and arises only where "the Court. . . is satisfied that circumstances have arisen which affect the justice of any terms of an award" (Waterside Workers' Case (4) ). This is quite different from the mere correction of errors &c. in an award during its original term. Any ion by the Court "in new circumstances" should naturally have 4 prospective operation, and not disturb past relations of the parties. his construction is confirmed by a consideration of the express provision for retrospective operation - within limits - in the proviso 'to sec. 28 (2); and the general principle that an alteration in the Jaw, or a power to alter the law, is not assumed to have a retrospective operation unless clearly shown (Reid v. Reid (5) ). Here the order purports to be retrospective both as to the period between April 934 and April 1935 and from the latter date until July 1935. 'On this ground alone the order of variation is wholly bad. The Variation was not properly made under sec. 28 (3) because (a) the did not give its mind to the determinations necessary to a valid order; (b) the condition of sec. 28 (3) had not arisen as the declaration of this Court was not a " circumstance " within the meaning of that sub-section ; (c) no order can be made under sec. 28 (3) which alters the wages to which employees have become entitled under the award and Act for work done ; and (d) no retro- 'Spective order can be made under sec. 28 (3). Upon the declaration

(1) (1935) 53 C.L.R. 113, at pp. 123, (3) (1920) 29 C.L.R. 106. 126, 131, 140. (4) (1920) 28 C.L.R., at p. 216. (2) (1925) 36' C.L.R. 442. (5) (1886) 31 Ch. D. 402. at pp. 408, 409.

1935; April 1934, under sec. 49a of the Act, to the moneys prescribed 3

Avsrratian the award, without the operation of clause 35, subject to the statu Tramway }

Assoctanros Russell K.C. (with him Chambers), for the respondent.

Comms. declaration made by this Court in April 1935 did not destroy 1 ss ees power of the Arbitration Court to deal further with the award TransPort Varied, that is, the valid part could, nevertheless, be varied invalid part could be replaced ; and any variation could be (i) spective; (ii) for a separate State or locality. The Arbitratior Court has power to make retrospective orders. Its main consi tion is justice. In order to achieve that its power extends " to the full correction of a proved error " (R. v. Commonwealth Court of Co ciliation and Arbitration ; Ex parte North Melbourne Electric Tram and Lighting Co. Ltd. (1) ). The Arbitration Court intended to giv some measure of relief to the respondent as to the quantum of w payable to his employees, but the method adopted to give effect that intention, namely clause 35, was a " proved error" which respondent was entitled to have corrected. Evidence in respect this matter was taken on both occasions it was before the Arbitrati

Court. The provisions of sec. 38 (0) apply for the whole duration

of an award. When a matter is reopened, the rescission of « provision gives power to introduce the proper provision. power of the Court to make retrospective orders and the reason therefor were dealt with in Federated Engine-Drivers' and Firen Association of Australasia v. Adelaide Chemical and Fertilizer Co. Ltd. (2) (see also R. v. Kidman (3); Gibson v. Mitchell (4): Marshall's Township Syndicate Ltd. v. Johannesburg Co Investment Co. Ltd. (5) ). The object of sub-sec. 1 of sec. 28 i impose a limit upon the Court (Waterside Workers' Federation of A s tralia v. Commonwealth Steamship Owners' Association (6) ). that decision the powers of the Court have been amplified. Th no difference in the quality of an award during the five years w sec. 28 (1) and during the period of its extension under sec. 28

(1) (1920) 29 C.L.R., at p. 111. (4) (1928) 41 C.L.R. 275. (2) (1920) 28 C.L.R. 1, at pp. 10-12. (5) (1920) A.C. 420. (3) (1915) 20 C.L.R. 425, at p. 456. (6) (1920) 28 C.L.R., at pp. 215,

during that time it is subject to alteration under sec. 38 (0). The Court has power under secs. 28 (3) and 38 (0) to make retrospective orders. Here the Court availed itself of the power conferred by sec. 388 in order to prevent a further industrial dispute. It is competent for any party to apply to the Court under sec. 28 (3). _ 'The imposition of the ten per cent reduction upon the respondent's employees was an order made under sec. 28 (3) and was a circum- stance newly arisen, that is, since the time limit in the award had expired ; it had already been done in other States. In making an award the Court has power to make separate orders in respect of different States, and any variation may be by orders for separate States, localities, employers or classes of employers, or employees (Federated Saw Mill, Timber Yard, and General Woodworkers Employees' Association of Australasia v. James Moore & Sons Pty. Lid. (1); R.v. Commonwealth Court of Conciliation and Arbitration and Australian Railways Union; Ex parte Victorian Railways

• Commissioners (2)). The Arbitration Court is endowed with judicial and quasi-legislative power (Clyde Engineering Co. Ltd. vy. Cowburn (3); Ex parte McLean (4); see also Australian Boot Trades Employees Federation v. Whybrow & Co. (5); R. v. Commonwealth Court of Conciliation and Arbitration ; Ex parte _ Whybrow & Co. (6) ). An Act which empowers the making of subsidiary industrial law must, of necessity, confer power to vary retrospectively, including the power to rectify anything that is wrong. The power to reopen enables the insertion of a new rule in place of a defective rule, which, having regard to the whole Act, may be retroactive (Amalgamated Engineering Union v. Alderdice Pty. Ltd.; In re Metropolitan Gas Co. (7) ). Also the Court can under sec. 388 go beyond specific relief (Alderdices's Case (8)). The hardship entailed in the correction of an error may qualify the action of the Court, but it does not qualify its jurisdiction. The variation sought to be effected by clause 35 was imperfect ab initio. The imperfection, however, was established only in April 1935, by the

(1) (1909) 8 C.L.R. 465, at pp. 496, (4) (1930) 43 C.L.R. 472, at p. 479. 513, 518, 543, (5) (1910) 10 C.L.R. 266, at pp. 314, (2) (1935) 15, 32 (3) (1926) 37 CLR. 4 nd cf. p. (6) (1910) 11 at p. 24. 523. (7) (1928) 41 C.L.R. 402, at p. 426.

AUSTRALIAN Tramway AnD Moror Omsrevs EwproyEEs ASSOCIATION v. Comms. SIONER FOR Roap 'TRANSPORT AND TRamWays (N.S.W)).

decision of this Court. The order made by the Arbitration Com in July 1935 was one which it could have made in April 1934 upe the application then before it. The order of July 1935 has a spective efféct. It does not contain in the prescribed wages former defect of discrimination between married and s employees ; that distinction has been abandoned. It was alwa within the power of the Arbitration Court to grant a qualificati for any one State on any rescission it might make. The Arbitratio Court properly applied itself to the question before it. The Court fully observed its judicial duty of considering the rights of the parties. It considered, amongst other things, the finances of the New South Wales tramway service, and the finances of New South Wales as the scene of that tramway system. The order that certain overpayments need not be refunded is no part of the order prescril wages. It deals truly with money paid under mistake of fact cannot impair the validity of the order. Assuming that severability of the former clause 35 was justified under secs. 94 and 9B of the Acts Interpretation Act 1904-1932, the order as to refunds is, a fortiori, likewise severable. [He was stopped on this point.]

The allegation as to discrimination between employees in Ne South Wales and elsewhere, cannot be sustained.

(Larnam C.J. It will not be necessary for you to argue further on that point. There is nothing invalid in retaining the reduction - in one State and restoring the amount of the reduction in other States.]

Circumstances newly arisen affected the justice of the terms the award and caused the imposition of the ten per cent reduction. It was likewise in respect of the order of April 1934. At that tim " the State legislation was a further new circumstance which, in New South Wales, affected the justice of any of the ten per cent reductio The discovery in April 1935, of the invalidity of clause 35 was a further circumstance. Those circumstances entitled the Court to act under sec. 28 (3). Should the order of July 1935 nevertheless be held bad on any ground of discrimination this Court should de

of a retrospective order within the limits of the dispute and adjusted

Ferguson, in reply. Even though it had the financial position of the State and of the tramway service before it, the Arbitration Court did not direct its mind as to what amounts should be taken off the wages prescribed in the award. It directed its mind as to how it could bring about a reduction similar in amount to that imposed in clause 35. The cases referred to on behalf of the respondent are in respect of general propositions which have very little bearing on the particular matter under discussion here. An incidental power does not involve retrospectivity naturally or necessarily ; on the

~ Lid. v. The Commonwealth (1) ). It is impossible to say it was part of the dispute that in one area two means of ascertaining the basic wage and the adjustment thereof should operate at the one time.

The following written judgments were delivered : - Laraam C.J. This is a summons under sec. 214 of the Common- weailth Conciliation and Arbitration Act 1904-1934 which has been referred to the Full Court by Evatt J. The question raised by the summons is, in substance, whether the

• Commonwealth Court of Conciliation and Arbitration had jurisdic- tion to make an order of 12th July 1935, which varied the award made in disputes of which the Court obtained cognizance in 1925. ~The facts which show the nature and ambit of the relevant dispute _ or disputes are set out in the statement of facts and the judgments delivered in Australian Tramway Employees Association v. Com- missioner for Road Transport and Tramways (N.S.W.) (2). In that case the High Court considered a variation of this award which _ had been made by the Arbitration Court on 17th April 1934. This _ Court held that so much of the order of variation as introduced or authorized a discrimination between the rates of pay for married

_ and single men was invalid because such a discrimination was outside the scope of the original industrial dispute. It was held that such a provision was neither relevant to that dispute nor incidental or conducive to its settlement.

contrary it rejects retrospectivity (Broadcasting Co. of Australia Pty. ™'

Rates of pay generally under the award had been reduced account of the general financial emergency. Applications | restoration of the former rates were made on behalf of the employees After considering the general financial situation and the position the various employers as well as that of the employees, ce1 restorations were made. In the case of the tramways authority of New South Wales (the respondent in the case cited (1) and in th case) the Arbitration Court made a special order which was upon two main considerations. The first was the financial posit of the State of New South Wales and the second was the fact th the Parliament of New South Wales had by the Public S (Salaries Reduction) Act 1930 (No. 21, 1930) extended by the Service (Salaries Reduction) Amendment Act 1931 (No. 24, 1931), then the Public Service Salaries Act (No. 2) 1931 (No. 29,

to about one half of the tramway employees, but not to the half of such employees, whose rates of pay were regulated by Federal award. (In July 1935 the former class contained 4,525 and the latter class 4,490 employees.) The Arbitration Cou expressed its views upon this matter on 17th April 1934 in "T Basic Wage Inquiry," dealing with applications for the resci of previously made percentage reductions in prescribed wage rat

State railways because of the enormous deficits these undertaki g are still incurring, and are likely to continue incurring for a lons time. Evidence also showed that State governments, largely. because of these railway deficits, are finding the balancing of the budgets an almost insuperable problem. We were consequen urged, on behalf of the Governments or Commissioners for Railway to refrain from making any order in respect of wages which would increase the financial peril of the States. The Court thinks that the community of a State is to be regarded as virtually the real employer of persons engaged in the transport service of that State. If that community is in financial danger, it is entitled through its Legislatur e subject to any restrictions arising out of Commonwealth enactn

to meet that danger by making reductions in the remuneration of H.C. oF A. its employees. Employees in general of the State can fairly claim eas

that the State Legislature should not require them to make sacrifices FREE out of proportion to those required from the rest of the community. pear

And if the Legislature demands more from State employees than Ree

the community thinks is fair, the legislators responsible may be ae

ejected from office. But should the State Legislature think fit to _ Comus-

: : SIONER FOR reduce or make a deduction from the remuneration generally of the - Roap employees of the State, those engaged in its transport services have teed

no moral claim to escape a reduction or deduction equal in degree to

• that imposed generally upon other employees of the State in similar grades. All that they are entitled to is that they be treated no worse." The Arbitration Court accordingly included in its order of

variation a clause which enabled the present respondent to apply to employees who were under the Federal award reductions not greater _ than those made by the statute in the case of employees who were not under the Federal award. This clause of the order of variation was held by the Court to be invalid for the reason stated.

If the variation made on 17th April 1934 had been valid the respondent would have been bound to pay about £42,000 less in wages during the period April 1934 to March 1935 than if the variation had not been made, and the employees, married and single _ respectively, would have been entitled under the award only to about the same rates of pay as the employees not under the award. When that variation was declared invalid the respondent sought to obtain a valid variation which would as nearly as possible bring _ about the same result. The Arbitration Court granted the applica- tion, repeating the reasoning upon the merits of the case to which _ teference has already been made. The question which now arises is whether this variation is valid. .

In the order of 12th July 1935, which embodies the challenged _ variation, the Court in clause 1 set aside as from the time when it

was made the order of 17th April 1934 in respect of the respondent

Commissioner. Thus this order is set aside as from a past date.

_ The Court then in clause 2 dealt with the period beginning with

the end of the last pay period in April 1934 and ending with the beginning of the first pay period that commenced in April 1935 -

AUSTRALIAN TRaMWaY Ap Moror Omnrevs EMPLoyrEs ASSOCIATION

a period of about eleven months. In respect of this period declared that the Commissioner was and is bound, so far as payments have not been made, to make payments under the ay as if the order of 17th April had never been made.

The effect of these two provisions, standing by themselves, would be to continue the award rates of wages subject to a general per cent reduction which was made in September 1932 as modil by a subsequent order, that is, without the degree of resto made by the valid part of the order of 17th April 1934. In meantime, however, both married and single men have since 1934 in fact received higher pay than would be due under an aw so varied - the married men more than the single men.

Clause 4 deals with those payments - which became over-paym under this variation (if it is valid) - by providing that the

wages under the award. The result is that any employee who, ot the basis of the variation of the award now in question, has b overpaid is not required to refund the excess payment. Thus married men, who have in fact been paid more than the single are declared to be entitled to retain this excess. The clause, howevé makes no reference to either married or single men.

Clause 5 is designed to prevent the single men from

the order of 17th April 1934 remained unchanged except that: invalid clause was struck out. It is sought to accomplish this by providing that in respect of any claim for work done during

purposes of sec. 49a of the Commonwealth Conciliation and Arbit Act as not having become due until the date of the order (12th Jul 1935). Sec. 49a gives a right to sue for wages due under an awi only within nine months from the payment becoming due. the time within which an action can be brought for the wages d is extended, but clause 4 contains another provision enabling Commissioner to set off against any such claim the amount of excess payments already made. The result is that the single men under | this provision cannot, except to an amount of about £3,000, recov

the amount of wages that would otherwise be payable to them in sequence of the discrimination in favour of married men and against single men having been declared to be invalid.

as from April 1935, and other clauses introduce a new method of all items " retail

calculating the basic wage by reference to the price index numbers of the Commonwealth Statistician. Several objections are taken to the jurisdiction of the Court to

'ing to do indirectly what this Court has said it cannot do directly. This objection is based on the fact that the effect of the order is to allow married men to retain sums paid as wages which single men "are prevented from recovering, and it is pointed out that, under this variation, the Commissioner avoids the payment of nearly the whole amount of £42,000 by which it was intended that his wages 'bill should be reduced under the invalid clause of the variation of April 1934. The objection made, however, cannot be sustained.

• The fact that the same, or approximately the same, pecuniary result in relation to employer and employees is reached under this order as under the earlier invalid order has no bearing on the validity of
• the later order. The later order must be considered in its own terms. Tt makes no reference to married or single men, and is not open to the objection which this Court held to be fatal to part of the earlier order. :

It is conceded that the rates of wages which result from the order in question are not lower than the employers originally offered or higher than the employees originally claimed. Thus no such objec-

• tion exists as that which was dealt with in the case of Australian _ Insurance Staffs' Federation v. Atlas Assurance Co. (1).

It is further objected that the order interferes with the rights vested in employees, by reason of the order of April 1934, to receive higher rates of pay than in fact they can obtain under this latest variation. This objection should be considered apart from that _ based upon retrospectivity. The objection, so considered, does not _ appear to be well founded. Industrial arbitration includes, as an

Clause 6 of the order of variation rescinds the ten per cent reduction ,

Inthe first place it is said that the Arbitration Court is endeavour-

AUSTRALIAN 'TRamway anp Moror OmnrBus EMPLOYEES ASSOCIATION v Commus- SIONER FOR Roap TRANSPORT AND

ordinary element, interference with vested rights (especially contrae: tual rights) and the substitution of new rights therefor. Another objection is that the award, as varied, different between the Commissioner for Road Transport and Tramways (N¢ South Wales) and his employees on the one hand, and other employ and employees on the other, and that accordingly the award does not prescribe "an Australian standard " in the former case. It is difficult to formulate this objection in terms of precision. Wher an award prescribes different standards in the case of diffi e employers or different groups of employers, the description of on standard rather than another as "an Australian standard" is a matter of choice, determined by the desires and the point of view of the person who applies the descriptive epithet. It has long been settled, however, that an award of the Comm wealth Court of Conciliation and Arbitration is not made invalid b reason of prescribing differing wages or working conditions different places. The original award in this case contained diffe provisions in respect of employees in different places. It is obvi that this must frequently be done in respect of working conditions, and there is no reason which can be suggested to support the vie that what can be done in respect of clauses relating to worl conditions cannot be done in respect of clauses relating to the amount or the method of ascertainment or the adjustment from time to time of wages. (See Federated Saw Mill, Timber Yard, and Genera Woodworkers Employees' Association of Australasia v. James Moore & Sons Pty. Lid. (1); Australian Tramway Employees Associatio vy. Commissioner for Road Transport and Tramways (N.S.W.) (2).) It is also objected that the basis of a differentiation in the new

Commissioner are State employees in the tramway enterprises with in the award. In fact the order does not draw a distin between State employees and others as such. The distinction between persons employed by the Commissioner and persons emplo} by other employers in the same industry. This in fact happens to a distinction between employees in New South Wales and employ'

in other States. It also happens, as already stated, to be a distinc- H.C. oF A.

tion between employees of a State authority and other employees. Ue

There is no general principle which forbids the provision of differ- Avsrraiay . . ss 'TRAMWAY ing terms in an award for employees of different employers. ce

But the particular eat is made that such a discrimination was jymovers

_ "never a part of the original dispute." In the original dispute (it is Assoctattos v.

said) no such differentiation was suggested in the claims of either Comms. : a SIONER FOR

employers or employees. It is true that a variation of an award ~ Roan

cannot be made as a variation unless it could properly in substance T*4NS"0""

have found a place in an original award. But the Arbitration Court

is not limited, in making an award, to saying simply " Yes" or "No" to claims made by one or other of the parties. Such a principle would result in absurd consequences. Sec. 388 of the Act

expressly provides: "In making an award or order, the Court or a Conciliation Commissioner shall not be restricted to the specific relief claimed by the parties to the industrial dispute, or to the demands made by the parties in the course of the dispute, but may include in the award or order any matter or thing which the Court or Commissioner thinks necessary or expedient for the purpose of preventing or settling the dispute or of preventing further industrial disputes." But, in exercising this wide jurisdiction, the Court must deal with the dispute - and not with matters outside the dispute or not relevant to the dispute. This rule prevented this Court from

upholding the discrimination between married and single men, which was obviously not in the minds of any of the parties to the _ dispute and which is not such an ordinary circumstance relevant to industrial relations that it would be assumed to be recognized by all parties as a possible and natural means of founding a differentia- tion in wage rates or working conditions. Sucha discrimination could not reasonably be regarded as inherent in the subject matter of the claims made. But matters such as the place or State in which employees work, or the financial or other conditions under which employers carry on business - these are ordinary elements affecting industrial relations, and the Court was entitled to take them into account, if it thought proper, in making its original award - as in _ fact it did to quite some extent in making different provisions for New South Wales, Melbourne, Adelaide, Hobart, Launceston,

AUSTRALIAN Tramway axp Motor OmniBus EMpLoyeEs ASSOCIATION Cownus- SIONER FOR Roap 'TRANSPORT AND Tramways (NS.W).

Geelong, Ballarat and Bendigo, and thereby in fact differentia

same justification for making such a differentiation in a variation of the award as in the original award. It may further be noted the the employees' claim, as made in 1925, which constituted one side the dispute, did make special claims in relation to " all employee in the employ of a State Government tramway service" for spe benefits by way of holiday passes. The award did not grant th claims, but this reference to the origin of the dispute shows that it cannot be accurately said that any ground of discrimination betweer State employers and non-State employees was never a part of original dispute. i Much of the argument before us was addressed to the strongl pressed objection based on the retrospective character of variations made. The original award came into force on Ist October 1927, and provided that it should continue for a period of e years thereafter. It therefore expired on Ist October 1930. It he been continued in force by sub-sec. 2 of sec. 28 of the Act. It is urged that sec. 38 (0), so far as it confers power on the Arbitration Court to vary its orders and awards, does not apply to an awa while it is continued in force beyond its specified period by of sec. 28 (2). (See discussions of this question in Aus " Insurance Staffs' Federation v. Atlas Assurance Co. (1), and in R. v. Commonwealth Court of Conciliation and Arbitration and Austral Railways Union; Ex parte Victorian Railways Commissi (2).) It is, however, not denied that sec. 28 (3) applies in such a case, but it is denied that sec. 28 (3) gives power to make a retrospective variation. Sec. 28 (3) is in the following terms:

• • Notwithstanding anything contained in this Act, if the Cour or a Conciliation Commissioner is satisfied that circumstances hay arisen which affect the justice of any terms of an award, the Cou or Conciliation Commissioner may, in the same or another procee set aside or vary any terms so affected. The powers conferred b this sub-section shall not be construed as limiting in any mi any power conferred on the Court or a Conciliation Commissi

(1) (1931) 45 C.L.R., at pp. 441-443, (2) (1935) 53 C.LR., at p. 126, b } by Evatt J. Rich J., p. 131, by Starke and p. 140, by Dixon J.

by any other provision of this Act." It was held in R. v. Com- monwealth Court of Conciliation and Arbitration: Ex parte North Melbourne Electric Tramways and Lighting Co. Ltd. (1) by Knox CJ. and Gavan Duffy and Starke JJ. that "the power to vary s given by sec. 38 (0) in terms not restricted by any qualifica-

way of construction, of a limitation to the effect that no such ion shall have any effect before the date of the order by which

"the main consideration " in the application of the power to 'y given by sec. 38 (0). It is difficult to suggest any reason why power conferred by sec. 28 (3) should be limited in the manner ed by the argument submitted. It is true that in an earlier m sec. 28 did not contain either the proviso to sub-sec. 2, or -sec. 3, and the argument was then available that sub-sec. 2 Positively continued the award in force without possibility of ion. (See Waterside Workers' Federation of Australia v. Commonwealth Steamship Owners' Association (3).) But sub-sec. 3 begins with the words "Notwithstanding anything contained in is Act." No limitation upon the power conferred by sub-sec. 3 can therefore be spelled out from sub-sec. 2 or from any other part of the Act. _ Is there then any reason why sub-sec. 3 should be construed as not giving power to make a retrospective variation? 'The provision is general in its terms, and the reasons which led to the decision of the Court in R. v. Commonwealth Court of Conciliation and Arbitration : Ex parte North Melbourne Electric Tramways and Lighting Co. Ltd. (4) with respect to sec. 38 (0) apply with equal force to the construction of sec. 28 (3). The only limitation contained in the sub-section is that tobe found in the words " If the Court or a Conciliation Commissioner 8 satisfied that circumstances have arisen which affect the justice of any terms of an award." It would be difficult to confer a wider charter. It should need no argument or authority to show that the correction of what on reconsideration is believed by the Arbitration ourt to have been a mistake may, in order to do justice, have to

(1) (1920) 29 C.L.R., at p. 110. (3) (1920) 28 C.L.R. 209. (2) (1920) 29 C.L.R., at p. 111. (4) (1920) 29 C.L.R. 106.

or condition, and we can see nothing to justify the insertion, 4

Ww AUSTRALIAN 'TRAMWAY xp Moror Omrnvs EmrLoyEes

H.C. or A. be made retrospectively. Whether this is so in a particular ca

ey entirely a question for the decision of the Arbitration Court.

Avsrrattan It has been contended, however, that the Arbitration Court aerate ron, DOE, upon the occasion of the variation, consider whether circu

eS apocll stances had arisen which affected the justice of the award, but

Assoctarton it confined its attention to the discovery of some means of bringi v. Comms- about the result which it had been intended to make by the vari

"koa of April 1934. The High Court is not a Court of Appeal from th RAmEORE Arbitration Court and, in any event, it would require the stronge ' evidence to justify a decision that the Arbitration Court had ne

taken into account circumstances affecting the justice of the m

which was before it for consideration. In this case, however, reasons of the Arbitration Court have been placed before us. It true that the Arbitration Court wished to achieve as nearly possible the same result as it had intended to achieve by the whole of the variation made in April 1934. But it clearly appears that Court desired to do this because it considered that the vari

justice to the employers, to the employees as between themse and to the community of New South Wales. The latest variatio expressly included provisions which the Court said would, so far: its jurisdiction extended, "ensure fairness to all concerned." therefore appears that the condition prescribed by sec. 28 (3) has been satisfied in this case.

The order should be that it is declared that the Commonwei

variation of 12th July 1935, and that such variation was vali made, Such a declaration answers all the questions raised by summons,

1935. The original award was made by Judge Beeby on September 14, 1927, came into force on October 1, 1927, and was expressed t continue for a period of three years. The period having e on October 1, 1930, the award was continued in force by vi sec. 28 (2) of the Commonwealth Conciliation and Arbitration

ich carries on the award "until a new award has been made." eral alterations of the terms of the award were subsequently de, one, dated April 17, 1934, introducing a new clause 35 into the award. The operation of this clause was fully analysed in the prior decision of the Court (1). The effect of the declaration then imously made by the Court was that clause 35 (which introduced into the award a wage discrimination between married and single 'men employed in the same grade), should be regarded as having been made without jurisdiction, and as having been void ab initio.

ich, if left unaltered, would have compelled the respondent ployer to pay a large sum of money, by way of additional wages as from April 17, 1934. To avoid this liability, the respondent ipplied to the Arbitration Court for a further alteration of the terms of the award ; and the validity of that alteration (made on July 12, _ 1935) is now challenged by the appellant. The questions have been ably argued on both sides. It is convenient to discuss the grounds of objection in order.

(L) The main contention of the appellant is (a) that sec. 28 (3) stitutes the sole measure of the Arbitration Court's power to alter the terms of an award during the period of its continuance in force under sec. 28 (2), and (b) that sec. 28 (3) confers no power "upon such Court to make any alteration of an award which will have the effect of depriving persons of accrued benefits to which the award in its existing form entitles them. With the first part of this contention we agree. Such a view of sec. 28 (3) was adopted by Isaacs and Rich JJ. in Waterside Workers' Federation of Australia v. Commonwealth Steamship Owners' Association (2), by Evatt J. in Australian Insurance Staffs' Federation vy. Atlas Assur- ace Co, (3), and by Dizon J. in R. v. Commonwealth Court of Conciliation and Arbitration and Australian Railways Union; Ex parte Victorian Railways Commissioners (4). But with the second part of the contention we are unable to agree. The power in sec. 28 (3) is to "set aside or vary " any of the terms of the award which have become unjust in operation as a result of new

(1) (1935) 53 C.L.R. 90. (3) (1931) 45 C (2) (192 L.R. 209, (4) (1935) 53 C

s decision left standing the remaining clauses of the award, 1

AUSTRALIAN 'TRAMWAY and Moror Omnreus EMPLOYEES: ASSOCIATION

• Court was not precluded from altering or taking away rights accru

circumstances arising. This power may operate so as to pro extensive alterations in an award, as was pointed out by @ Duffy C.J., Evatt and McTiernan JJ., in R. v. Commonwealth Cov of Conciliation and Arbitration and Australian Railways Unic Ex parte Victorian Railways Commissioners (1). If the pows the Court in sec. 38 (0) to " vary its orders and awards," auth the making of retrospective orders (as has been expressly deci R. v. Commonwealth Court of Conciliation and Arbitration; Ex p North Melbourne Electric Tramways and Lighting Co. Ltd. (2)), is no adequate reason for confining orders made under sec, 28 (3) to those which can operate only in futuro.

We therefore hold that, in applying sec. 28 (3), the Arbitra

to the employees under the existing award. The first cont

(II.) It is also contended that the order now challenged rep no more than the settlement of a dispute confined to New South Wales, which dispute resulted from the attempt of the respond employer to apply to his employees the terms of a New South Wales statute, and that such one-State dispute is quite unrelated to original inter-State dispute of 1927. But it has to be obs that every application for the variation of a subsisting Fi award, if made by an employer in one State, presents the appea of a new one-State dispute. Prior decisions of this Court, and the long accepted practice of the Arbitration Court make it clear th so long as the variation order is made within the ambit of the dispute and is not open to challenge upon other grounds, it cannot be succe fully challenged because it is made by, and its operation is confin to, a particular employer in one State (Federated Saw Mill, Ti

Victorian Railways Commissioners v. Australian Railways Union (A

(III.) Next it was said that, by the order now challenged, grounds of discrimination between employees have been introdi The first ground is the lowering of wage rates in one State mi

(1) (1935) 53 C.L.R., at pp. 123, 124. (3) (1909) 8 C.L.R. 465, at p. 513. (2) (1920) 29 C.L.R. 106. (4) (1935) 53 C.L.R. 113.

because of the existence of a special statute affecting public servants in that State. But such circumstances are not placed outside the consideration of the arbitrators, however unfairly and unreasonably the particular wage reduction may operate in practice. The second ground is that the present order sets up a discrimination between employees (members of the applicant organization) employed by a State instrumentality and those who are not. But the Arbitration Court is entitled to pay due regard to the differing situations of different employers. Such a discrimination is quite different in character from that made under the old clause 35 for that, by authoriz- ing discrimination in wage rates between men employed by the same employer and performing similar work, solely on the ground of marriage status, introduced a matter quite foreign to the original _ dispute between the organization and the employees.

__ (IV.) It was also said that, apart altogether from the contention ' based on sec. 28 (3) dealt with above, the respective logs delivered to each other in 1927 by the disputing parties, evidenced no disagree- _ ment or dispute as to the final closing of accounts between employer and employee on each weekly or fortnightly pay day, so that any deprivation of pay by a retroactive order could never have been contemplated by any disputant. The answer to the argument is that the logs prove no agreement that the weekly or fortnightly _ receipt of pay shall forever close the wage account in respect of such period.

(V.) The last ground of challenge was that the Arbitration Court did not address its mind to a consideration of the question of industrial justice as between the parties, but merely engaged itself in seeking _ away to evade or circumvent the previous declaration made by this Court. The facts, however, do not support such an inference. The _ Teasons for judgment of the Arbitration Court show upon their face _ that all the Judges adverted to the question of what was a reasonable ~ order to make, having regard to the circumstances of the parties and the new situation created by the prior decision of this Court. This Court accepts no responsibility for the reasonableness or justice

~ of orders made by the Arbitration Court, from the orders and awards _ of which there is no appeal.

There should be a declaration that the order of July 12, 1935, was validly made.

AvsTRaLtAN 'Tramway xp Motor Onsrevs EMPLOYEES ASSOCIATION v. Comms. SIONER FOR Roap 'Transrorr AND 'Tramways

Srarke J. Summons under sec. 2144 of the Commonwe Conciliation and Arbitration Act 1904-1934 for a decision upon question whether the variation of an award dated 12th July 19 was not invalidly made. The variation was made in consequen of the decision of this Court in Australian Tramways Emoploye Association v. Commissioner for Road Transport and Tramu (N.S.W.) (1), which, as the learned Judges of the Commonw Court of Conciliation and Arbitration said, " clearly defeated th intention" of an order or award of that Court dated 17th Ap 1934. The employers in that case had served upon the employ: organization a log of wages based upon the equivalent of the Harve standard, to be adjusted quarterly according to the increase or decrease in the purchasing power of money. The history of so-called standard, and the method of its application, may be fou in the Commonwealth Year Book for 1934, at pp. 718-724. employees' organization did not "accept the terms contained the log," and suggested a conference, which was refused. employees' organization next served upon the employers a log of wages claiming minimum rates of weekly wages for various cl

s of employees. It made no reference to the employers' log, or

But the Court held that the two demands or logs constituted a industrial dispute, despite the fact that they were entirely : nected, and had been treated in the curial records of the Arbitration

Court and in the Court itself as separate disputes. This view narrowed the area of the dispute, and led to the conclusion that i was "a dispute about the manner of calculating a rate." Arbitration Court had inserted a clause in its award which did n itself discriminate between the wages of married and those |

unmarried men, but enabled the Commissioner for Transport

discrimination between married and unmarried men that is 01

the scope of the original industrial dispute." The Harvester wage,

• or its equivalent, however, is a family wage " based on the normal needs of the average employee regarded as a human being living in a civilized community." "Treating marriage as the usual fate of adult men, a wage which does not allow of the matrimonial condition and the maintenance of about five persons in a home would not be treated as a living wage." So said Higgins J., who declared the Harvester wage. (See the articles "A New Province for Law and Order," contributed by Higgins J. to the Harvard Law Review, vol. 29, p. 13; vol. 32, p. 189; vol. 34, p. 105.) But if the family condition is involved in the Harvester wage, why is it beyond the ambit of a dispute, even as to the manner of calculating the rate, to consider the family condition - the condition of the employee with no family, and that of an employee with a large family? Are questions of sex, locality, and so forth, all beyond the ambit of a _ dispute unless specifically mentioned ? The Commonwealth Concilia- tion and Arbitration Act provides in sec. 388 that in making an award or order the Arbitration Court shall not be restricted to the specific telief claimed by the parties to the industrial dispute or to the _ demands made by the parties in the course of the dispute, but may include in the award any matter or thing which the Court thinks necessary or expedient for the purpose of preventing or settling the dispute. Finally, the Court held that the clause which authorized a discrimination between married and unmarried men was severable _ from the rest of the award ; the employees of the Commissioner of _ Road Transport thus became entitled to higher wages under the award of the Arbitration Court than it would have given them. The decision surprises me, as it must have surprised the learned _ Judges of the Arbitration Court. But there it is - to be followed, distinguished, or, perhaps, departed from, in future cases.

: After this decision, the Arbitration Court reconsidered the matter, _ and resolved that it was just and fair that an order should be made _ carrying out its original intention in respect of a period of eleven _ months that ensued upon the award the subject of the decision in this Court. In substance, the order reduced the wages of the : employees of the Railway Commissioners under awards of the

AUSTRALIAN Tramway np Motor Om EmpLo ASSOCIATION, v Comms- SIONER FOR Roap TRANSPORT AND TRAMWAYS (N.S.W

AUSTRALIAN 'TRaMway and Motor OMNIBUS: EMPLOYEES ASSOCIATION v. ComMIs- SIONER FOR Roap TRANSPORT AND 'TRAMWAYS (NS.W.).

Arbitration Court by ten per centum, and that reduction operated as from a past date. It excluded the Commissioner from any refund of moneys paid in excess of the amounts that would have been payable had the ten per centum reduction not been made, but gave a right of set-off in respect of moneys that had not been pai Encouraged by, and relying upon, the decision already given, employees' organization attacks in these proceedings this order or award. Several grounds were urged, but I shall touch only upon the more important. (1) That the award is beyond the ambit of the dispute between the parties : (2) Because the award perpetuates the distinction between married and unmarried men in respect of refunds of moneys paid or payable in excess of the amounts that. would have been payable had the ten per centum reduction not been made. The former decision, however, does not cover the case, though the argument is plausible. The award, as already mentioned, - prevents the Commissioner from recovering moneys treated as overpaid, or gives him a right of set-off if moneys were not actually _ paid. But it does not prescribe or regulate the wages of employees _ according to their condition, though married and unmarried men benefit unequally by reason of the fact that the amounts paid or | payable to them under the former award were not the same. (6) Because the award differentiates between the wages payable to the 4 employees of the Commissioner for Road Transport and those. payable to other employees. But there is nothing in the Act - requiring the Arbitration Court to prescribe a uniform wage to - disputants or any class of disputants. So long as it keeps within - the bounds of the dispute, the Arbitration Court is not restricted - to the specific claim, but may do what is just and right. (c) Because the award is retroactive. Nothing can be found in the Arbitration Act which prevents the Arbitration Court making such an award. - (2) That the only jurisdiction possessed by the Arbitration Court to vary its award as it did arose under sec. 28 (3) of the Act, which, it was contended, does not authorize any variation operating retro- spectively. It should be stated that the award or order which was varied had exceeded the period specified therein, and was operating - by force of the provisions contained in sec. 28 (2) of the Act. The

Jatter part of the contention is met by the decision in R. v. Common- wealth Court of Conciliation and Arbitration ; Ex parte North Melbourne Blectric Tramways and Lighting Co. Ltd. (1). And the former part appears to me equally wrong for reasons which I stated in R. v. Commonwealth Court of Conciliation and Arbitration and Australian

shall not repeat. It is unimportant in this case whether the powers contained in secs. 28 (3) and 38 (0) are or are not cumulative. But if sec. 38 (0) does not extend to an award that has been continued. in force pursuant to sec. 28 (2), I should feel some difficulty in apply- ing such provisions as sec. 38 (c), (d), (da), (e), (g), and (r), to such an award, and the powers of the Arbitration Court would be greatly impaired. (3) That the Arbitration Court did not satisfy itself that circumstances had arisen which affected the justice of the award (sec. 28 (3) ); it limited itself, according to the argument, to the order of this Court in the former proceedings. The argument is untenable in fact, for the Court did not so limit itself; and if it had, I cannot follow why that would not have been a circumstance that affected the justice of the terms of the award which was varied.

The parties are therefore back in much the same position as they were under the order of the Arbitration Court of April 1934, which was as to one of its clauses declared invalid. The subtleties of the law, unfortunately, have involved much time and no little cost.

In my opinion, the variation order of 12th July 1935 is valid, and it should be so declared.

Dixon J. After this Court gave the judgment in the matter between the same parties previously before the Court (3) the Court of Conciliation and Arbitration heard an application by the Commis- sioner for Road Transport and Tramways for an order varying the

award in a manner which would have the effect of relieving him from the liability for underpayments of wages which otherwise, would arise from the invalidity of clause 35 of the award. The order of this Court declared that the order of variation of 17th April 1934 inserting clause 35 in the award was to that extent invalid.

Railways Union ; Ex parte Victorian Railways Commissioners (2) and Assocation

v. COoMMIS- SIONPR FOR Roap 'TRaNsrorr AND 'Tramways (NSW).

In the reasons which I gave for concurring in that order I s the facts affecting the matter and I do not now repeat them. Court of Conciliation and Arbitration did not make the order whi the Commissioner formulated in his application, but it made anoth

order which produces a similar result. The order was made o1 12th July 1935. It relieves him of the greater part of the amour which he would be liable to pay upon the footing that the minimu wages payable were to be ascertained from the award as varied respects other than by the insertion of the clause which has be declared void. The effect is brought about by a somewhat comp cated order. The scheme of the order is to exclude the Commissioner from the order of variation of 17th April 1934 as from the comm ment of its operation, to declare his liability for wages cal according to the award unaffected by that variation during a peri ending in April 1935, as from that time to prescribe a new method wages adjustment, and to provide against the repayment by empl of wages which on this footing would be overpaid and again double payment by the Commissioner. By this means the liability _ of the Commissioner is limited to the amount by which wages calculated by applying retrospectively the provisions resulting from the last order of the Court of Conciliation and Arbitration exceeds the wages he actually paid. Beyond this amount the Commissioner | is discharged from any unfulfilled liability which would arise from - the award and variations as they were left by this Court's declaration of partial invalidity. ' The employees' organization now applies under sec. 214a of ti Act for an order declaring invalid the order of the Court of Conciliation and Arbitration producing this effect. ure In considering its invalidity it is necessary to begin by ascertaining the true nature and operation of the order. It deals with a liability incurred to pay wages for work done. The liability arose from the terms of a variation of an award the specified period of which had - expired. The liability was not discharged owing to a mistaken supposition that a particular clause of the variation was valid which, during the currency of a State statute, authorized the employer to - pay less than the minimum otherwise prescribed. It had fully

"accrued but was unsatisfied. The source of the liability was the i "operation. of the Commonwealth Conciliation and Arbitration Act upon the order of variation. The order of variation had been made under sec. 28 (3) of the Act. In my opinion there is no other power to vary an award after the effluxion of the time specified by the award for its duration : under sec. 28 (1). I have already expressed this opinion (1), following that of Evatt J. in Australian Insurance Staffs' Federation v. Atlas Assurance Co. (2), which, in turn, is based upon that of Isaacs and Rich JJ.in Waterside Workers' Federation of Australia v. Commonwealth Steamship Owners' Association (3). I do not think that the power given by sec. 38 (0) to vary awards and to reopen any question applies to the _ original terms of an award after its fixed period has expired. Such an award is kept in force by virtue of sec. 28 (2), that is, by the direct ' operation of the statute independently of and, indeed, in opposition _ to, the exercise of the Court's discretion as to the term or duration of _ the award. The statutory provision assumes that the Court has per- formed all its functions as an arbitrator, that it has appointed a time for the termination of the award, that all variations have been made _ which, during the currency of the award, it has considered necessary to effect or preserve the settlement of the dispute including variations of the period of the award and that, nevertheless, the appointed time has come. Then, for the purpose of keeping alive the existing industrial regulation embodied in the expired award until a new regulation is made, the statute takes up the old award and gives it a continuing force. The power given by sec. 38 (0) to the arbitrator to review and revise his original settlement of the dispute does not appear to me naturally appropriate to this subsequent period of statutory continuance of the expired award. When Isaacs and _ Rich JJ. construed the provision, sub-sec. 2 did not, and it does not ' now, contain the words which appear in sub-sec. 1, " subject. . . to any variation ordered by the Court." This striking difference between the two sub-sections showed that after theaward had expired it did not remain subject to the arbitral power of variation given by sec. 38 (0). When, afterwards in 1920, what stands now as the first paragraph

(1) (1935) 53 C.LR., at p. 140, 2) (3) (1920) 28 C.L.

AUSTRALIAN TRAMWAY anp Moror OmnrBus EMPLOYEES ASSOCIATION Commits- SIONER FOR Roap TRANSPORT

of sub-sec. 3 was enacted by sec. 13 of Act No. 31 of that year, it appears to me that the interpretation adopted by Jsaacs and Rich JJ. was thereby completely confirmed. When, eight years later, what stands as the second paragraph of sub-sec. 3 was enacted by - sec. 24 of Act No. 18 of 1928, a consideration ceased to exist which _ between 1920 and 1928 would make it impossible to avoid that interpretation of the provisions read as they then stood, namely, the consideration that the limitations upon the particular pow contained in sub-sec. 3 negatived resort to a general power not so limited. But the main purpose of the introduction of the second

paragraph of the sub-section was to prevent the implication arising : that, in making a new award, "in another proceeding " arising out of a new dispute, the Court was restricted to the exercise of the - conditional power given by sub-sec. 3 of setting aside or varying the terms of the prior award. If it was intended to alter the state of the law, as declared by Isaacs and Rich JJ., the legislation might be expected to do so directly. In my opinion the introduction of - the second paragraph had not the indirect effect of furnishing the Court of Conciliation and Arbitration with a new and unconditional power which would supersede the power given by sub-sec. 3. This conclusion might be of great importance in the decision of the case if it is also true that the power of reviewing and revising orders of variation made under sub-sec. 3 is to be found in that sub-section alone. For the language of sub-sec. 3 is not very apt to express @ power to discharge or vary liabilities which have already accrued under an award. It is a power to set aside or vary terms affected in point of justice by circumstances which have arisen. This language may appear rather to point to the executory operation of the terms. But it is unnecessary to decide whether under the power accrued liabilities can be discharged or accrued rights varied, because, in my opinion, the authority of the Court to reconsider orders made under sub-sec. 3 of sec. 28 is sec. 38 (0). When sub-sec. 3 conferred the power to vary or set aside the original terms of an award it conferred it upon a tribunal possessing under sec. 38 (0) @ general authority to vary its orders and to re-open any question. When a new power is given to an existing Court or other tribunal, prima facie, it is exercisable in the same way and subject to the same E

conditions and incidents as the general powers and jurisdictions of 1 the Court or tribunal (cp. Powell v. Lenthall (1) ). Once the Legis-

to make orders doing so from other powers. The same control of y, such orders, the same review and reconsideration exercisable over 4 other orders, seems appropriate. Accordingly, I am of opinion that the efficacy of the order of 12th July 1935 depends upon : sec. 38 (0).

Does par. (0) of sec. 38 enable the Court to divest rights or to discharge liabilities which have accrued under an order ?

In R. v. Commonwealth Court of Conciliation and Arbitration ; Er parte North Melbourne Electric Tramways and Lighting Co. Ltd. (2) this Court decided in terms that under that provision "there is power to vary an award retrospectively - i.e., to alter its pro- visions as from a date antecedent to the making of the order." The order in that case upheld under sec. 38 (0) was for increased wages in respect of work done before the order of variation was made. It conferred a right and imposed a liability by reference to facts which had already occurred. This is not the same as the discharge or variation of a liability which has been incurred or a right which has accrued in the past. But the decision negatives a construction of the provision which limits it to altering the executory provisions of an order or award. Once this inter- pretation is negatived, it appears to me almost necessarily to follow that it extends to the discharge and variation of all rights and liabilities which have accrued from the past operation of an order or award, at any rate if they are not spent or satisfied. Such an interpretation does not give to the Commonwealth Court of Conciliation and Arbitration a power to make " retrospective " arbitral provisions in the same sense as the expression " retrospec- tive" is used of legislative provisions. An award or order of the Court, other than an order in the exercise of the judicial power of the Commonwealth, is an instrument which the Act of Parliament takes up and makes obligatory so that the duties it prescribes

(1) (1930) 44 C-L.R. 470, at pp. 476, 477. (2) (1920) 29 C.LR., at p. 110.

Jature resolved to permit the alteration of the terms of an expired Avstrauian award, there is nothing in the subject matter to distinguish the power Peta i

become statutory (cp. Ex parte McLean (1)). A Legislature in making a retrospective law may require that in ascertaining rights and duties the assumption shall be made in every respect that the state of the law was otherwise than it in fact was. But, although an order of the Court of Conciliation and Arbitration may adopt

• the course of making past acts a measure or criterion for the ascer-_

tainment of rights and liabilities, or of the extent to which accrued

rights and liabilities are discharged, what it is doing is in fact no more than varying the liabilities which its own award or order has already brought into existence so that they cease to be obligatory -

The views which I have expressed appear to me to remove the - objections which have been advanced to the validity of the order of _

12th July 1935. They are inconsistent with the contention that the order attempts a retroactive regulation of wages which the Court has no power to make.

The ground that the order seeks to effectuate by indirect means _

the discrimination which our previous decision held to be outside the ambit of the dispute, even if in other respects tenable, must fail because, properly understood, the order of variation is not regulating the terms and conditions of employment, but discharging pro tanto unfulfilled obligations which have already arisen out of an an order which miscarried.

The same reason disposes of the contention, in other respects hopeless, that an unwarranted discrimination is made by the order between State employees and other employees and between State employees in New South Wales and other States because of the differences in statute law.

The argument that the order goes outside the dispute because the dispute did not relate to retrospective payment of wages is equally unsustainable.

The power of the Court to rescind accrued rights arising under an order of variation is independent. Doubtless the power is limited.

But, in the present case, nothing has occurred but the abrogation |

of an accrued right resting altogether on the Court's order and this is within the power.

Tn no view could the attack upon the grounds upon which the H. ©. or A. ourt of Conciliation and Arbitration proceeded in determining to

nake the order be considered tenable. AUSTRALIAN 'In my opinion a declaration should be made in answer to the ee ummons to the effect that the order of 12th July 1935 is valid. _Ossrpus

Declaration that the order of variation made by - Coxans-

the Full Court of the Arbitration Court on "ONe XO"

12th July 1935 was validly made. No order Teaxsrowr

licitors for the applicant, McCoy, Grove & Atkinson. 'olicitor for the respondent, Fred. W. Bretnall, Solicitor for