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

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

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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

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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

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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

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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

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"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

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Judgment (222 paragraphs)

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