Bank Officials' Association (South Australian Branch) v Savings Bank of South Australia Prosecutor [1923] HCA 25

High Court of Australia|1923-07-01|Before: Starke JJ, Rich JJ, Starke J, Per Higgins J

Gas Sau leave ae 276 HIGH COURT {19 23. [HIGH COURT OF AUSTRALIA.] THE BANK OFFICIALS' ASSOCIATION ) pee _ i j APreLianr (SOUTH AUSTRALIAN BRANCH) F Pr DerreNDANT, AND H.c.or A. THE SAVINGS BANK OF SOUTH AOE onal 923, ES uae IERALTA,..").- socy'sdigtvs Cesstiaetiel' wih oleae MELBouRNE, Prosecutor, Mar. 6, 7,8; June 6.

ON APPEAL FROM THE SUPREME COURT OF lesen, Higginn, SOUTH AUSTRALIA. Rich and

Industrial Arbitration - Industrial Court of South Australia - Jurisdiction - Savit Bank of South Australia - Statute - Interpretation - Generalia specialibus non derogant - Savings Bank Act 1875 (S.A.) (38 & 39 Vict. No. 22), secs. 2, 7-13, 16, 18, 48 Industrial Code 1920 (S.A.) (11 Geo. V. No. 1453), secs. 3, 5, 17, 34, 43, 47, 48, 51, 52, 99, 104,

latter Act is not to be construed so as to derogate from, repeal or alter t provisions of the former Act concerning the relationship which it regulates.

Per Higgins J.: - The Industrial Code 1920 contains nothing that is repugnant

merely one of several presumptions ; and the Industrial Code is obviously meant to aid all banking businesses.

Held, therefore, by Knox C.J., Isaacs and Rich JJ. (Higgins and Starke JS. dissenting), that the Industrial Court had no jurisdiction under the thie Code 1920 to entertain a claim by an association of officers of the Bank in respect of the salaries and conditions of service of those offic

Decision of the Supreme Court of South Australia Ex parte Savings Bank of South Australia, (1921) S.A.

On 16th November 1920 the Bank Officials' / tralian Branch), of which some of the officers, clerks and servants of the Savings Bank of South Australia were members, served on the

Savings Bank a statement of claim in respect of the salaries and conditions of service of officers of the Bank. The trustees of the Bank did not grant the claim ; and on Ist December 1920 the Bank was served with a summons issued by the Deputy Pr

ident of the Industrial Court to attend at a conference to be presided over by him. The conference was held on 6th and 9th December, and the Deputy President referred the matter of the claim to the Industrial Court. The matter came on in the Industrial Court before the Deputy President on 21st December, when the Bank appeared under protest and objected that the Industrial Court had no jurisdiction on certain grounds. The Deputy President overruled the objection, and refused the request of the Bank that he should state a case for the opinion of the Supreme Court. The Bank on 3rd February 1921 obtained an order nisi calling upon the President and the Deputy President of the Industrial Court to show cause why a writ of pro- hibition should not issue to prohibit them from hearing or otherwise determining the matter of the claim on the following grounds : (1) That the Industrial Court has no power to make any award against or binding upon the Bank or the trustees thereof: (2) that the Savings Banks Acts (S.A.) are inconsistent with the application to the Bank of the Industrial Arbitration Act 1912 (S.A.) or the Industrial Code 1920 (S.A.) and are not repealed by, but remain in full force irrespective of, either of those two Ac (3) that by sec. 7 of the Savings Bank Act 1875 (S.A.) the salaries and emoluments to be paid to officers, clerks and servants of the Bank are subject to

H.C. oF A. the approval of the Governor, and it is inconsistent with that A

19°3- for the Industrial Court to exercise jurisdiction over the Bank or the. ~

Baxx _ trustees thereof in the matter of such salaries and emoluments ;

eres (4) that an award of the Industrial Court in respect of such salari

, and emoluments could not be observed or obeyed by the Bank or the trustees thereof without the approval of the Governor, and the

savises Industrial Court has no jurisdiction to make any award against the

rector! Bank which the Bank or the trustees thereof would not be bound

to observe and obey irrespective of the approval of the Governor,

On the return of the order nisi the Full Court made it absolute; In ve Industrial Cowt ; Ex parte Savings Bank of South Australia (1).

From that decision the Association, by special leave, appealed te the High Court.

The appeal was first argued in Adelaide before Know C.J., Higgi Duffy and Starke JJ. on 17th and 18th August 1922, and y directed to be reargued. It now came on for argument hefor Knox ©.5., Isaacs, Higgins, Rich and Starke JJ.

Cleland K.C. and McGee, for the appellant. The Industrial Code 1920 applies to the Savings Bank and the officers employed by i The Savings Bank is in no different position with regard to its pow duties and liabilities towards its officers from that of an ordina employer towards his employees; and it comes within the literal terms of the definition of "employer" in sec. 5 of the Industri Code. There is no inconsistency between that Act and the Savi) Bank Act 1875 ; for the effect of the Code is, not to compel an emplo to pay the wages fixed by an award of the Industrial Court, but compel him, if he employs employees of certain classes, to pay th those wages. Sec. 7 of the Savings Bank Act, which requires the approval of the Governor to the salaries to be paid to officers of the - Savings Bank, does not raise an inconsistency, for the power of veto thus given to the Governor can still remain notwithstanding an award of the Industrial Court under the Industrial Code ; similarly as to the power conferred by sec. 13 of the Savings Bank Act upon the

trustees of the Savings Bank to make rules for the control of the officers subject to the approval of the Governor. If the two Acts are inconsistent, there is clear indication in the Industrial Code that it is to override the Savings Bank Act (see In re an Industrial Dis- pute; Corporation of Port Pirie v. Arnold (1)), and the maxim

Generalia specialibus non derogant does not apply (Lukey v. Edmunds

{Isaacs J. referred to Blackpool Corporation v. Starr Estate Co. (4); Barker v. Edger (5).]

The rights of the Crown under the Savings Bank Act are not affected by the Industrial Code. The power and authority given by the Savings Bank Act to the trustees over the officers of the Savings Bank go no further than the ordinary powers of a corporation over

its servants, except that there is a restriction requiring the approval of the Governor in

ain cases ; but there is no protection given to the officers of the Savings Bank by the Savings Bank Act such as is given to employees by the Industrial Code. That is a reason for holding that the later Act overrides the earlier.

Piper K.C. and Napier K.C. (with them Davis), for the respondent.

The Industrial Code does not apply to the Savings Bank and its

officers. Under the Industrial Code the Industrial Court has no

_ jurisdiction to enable any employer to do that which he could not

lawfully do without the award of the Court, but its effect is to

_ restrain the common law freedom of employers and employees.

The Industrial Court cannot direct an employer to do something

which is contrary to an Act of Parliament. The Industrial Code

authorizes parties to make voluntary contracts and gives those con-

tracts statutory effect (secs. 88 et seqq.). But the Savings Bank is

limited in its competency to contract freely, and it is commanded to carry on its business for the benefit of the public.

(Hicers J. referred to Ashbury Railway Carriage and Tron Co. v. Riche (6).]

(1) (1916) S.A.L.R., 161. (4) (1922) 1 A.C., 27. (2) (1916) 21 C.L.R., 336, at p. 349, (5) (1898) A.C., 748.

(3) (1887) 36 Ch. D., 573. (6) (1875) L.R. 7 H.L., 653.

H.C.or A. Sufficient effect can be given to the Industrial Code withor

applying it to the Savings Bank. Secs. 7 to 13 of the Savings B » 5 .

Bank Act form a specific code for dealing with the officers of the Savin,

Qercrats' Bank. Rules made under sec. 13 have the same effect as if they

Pata had been in the Act, and it was not intended that the Industrial Braxcu) (Court should have power to override them. It is not necess that two Acts shall deal with the same subject matter in order make applicable the maxim Generalia specialibus non derogant, bi STRALIA. is sufficient if in a particular case the two Acts produce confli results (In re Smith's Estate ; Clements v. Ward (1) ).

[Knox C.J. referred to Seward v. Vera Cruz (2). The Savings Bank is not an " employer " within the meaning 5, for it does not carry on business for the pi

the definition in sec poses of gain ; it is carrying on business for the purpose of performit its duty under the Act.

[Isaacs J. referred to Mersey Docks and Harbour Board v. (3).

In that case the motive for carrying on business was held to |

immaterial. Here the motive for carrying on business is a discrimet (See also Metropolitan Water Board vy. Berton (4).)

[SvarKe J. referred to Commissioners of Inland Revenue v. Forn (5). 4

The inclusion of the Railways Commissioner, the Metropolits Abattoirs Board and the Fire Brigades Board in the definition "employer " and the omission of the Savings Bank are an indicatio that it was not intended to include the Savings Bank in the definitio In the Industrial Code the Legislature was directing its attention wage-earning employees ; in the Savings Bank Act it was dire

Cleland K.C., in reply. The Savings Bank was establish Ordinance No. 15 of 1847 for the purposes of gain to the deposit and that purpose was continued in the Savings Bank Act 1875.

(1) (2) (1884) 10 App. Cas., 59, at p. 68. (5) (1890) 15 App. Cas., 334. (3) (1883) 8 App. Cas., 891.

[Isaacs J. referred to R. v. Whitmarsh (1): Bear v. Bromley (2) ; Commissioners of State Savings Bank of Victoria v. Permewan, Wright & Co. (3); Moore v. Rawlins (4).

Kyox C.J. This is an appeal by special leave from an order of the Supreme Court of South Australia directing that a writ of pro- hibition should issue, directed to the President and Deputy President of the Industrial Court of South Australia, prohibiting them from proceeding in a matter in that Court respecting the salaries and conditions of service of officers of the Savings Bank of South Australia, wherein the present appellant was a party and wherein it was ordered by the Industrial Court that the said Bank be summoned to appear as a party.

The question for decision is whether the Industrial Court has power under the Industrial Code 1920 to make any award binding on the Bank or on the trustees.

The jurisdiction of the Industrial Court was attacked on two grounds, namely, (1) that the Industrial Code 1920 does not bind the Crown and that the Industrial Court has therefore no power to

"override or take away the rights of the Governor in Council under "the Savings Bank Act; (2) that the relationship between the trustees of the Bank and its employees was regulated by the Savings Bank Act and that in accordance with the maxim Generalia specialibus derogant the Industrial Code should not, in the absence of any provision expressly relating to the Bank, be construed as derogating

m, repealing or altering the provisions contained in the Savings

Bank Act concerning that relationship. Tn the view which I take of case it is unnecessary to decide whether the first of these pro- itions is well founded, and J proceed to consider the second.

The maxim relied on by the appellant has been expounded and lied in many cases. I refer to three in which the scope of the

(1) (1850) 15 Q.B., 600. (3) (1914) 19 C.L.R., 457. ) (1852) 18 Q.B., 271. (4) (1859) 6 C.B.(N.S.), 289.

AUSTRALIAN BRaNcH) v. Savines BANK OF Soura AUSTRALIA

', Legislature has given its attention to a separate subject, and n

laid down by the highest authority. In Barker v. Edger (1) Hobhouse speaking for the Judicial Committee said: " When

provision for it, the presumption is that a subsequent general e ment is not intended to interfere with the special provision unk it manifests that intention very clearly." This statement referred to with approval by Viscount Cave in Blackpool Corporatio v. Starr Estate Co. (2); and in the same case (3) Viscount Halda referred to the rule as "a rule of construction which has repeatedly laid down and is firmly established," and expressed rule in the following terms : - ' Wherever Parliament in an statute has directed its attention to an individual case and has provision for it unambiguously, there arises a presumption in a subsequent statute the Legislature lays down a general pr ciple, that general principle is not to be taken as meant té what the Legislature had before provided for individually, an intention to do so is specially declared. . . . Individ rights arising out of individual treatment are presumed not to ha been intended to be interfered with unless the contrary is ¢ manifest." In Seward v. The Vera Cruz (4) the Lord Chance said: ' Now if anything be certain it is this, that where there general words in a later Act capable of reasonable and se application without extending them to subjects specially dealt by earlier legislation, you are not to hold that earlier and sp legislation indirectly repealed, altered, or derogated from merel ] force of such general words, without any indication of a pa intention to do so."

The questions for consideration may be stated as follows : - Is the Savings Bank Act special legislation within the m i of the rule? (2) Is the Code a general enactment within the ing of the rule? (3) Would the full exercise of the powers confer on the Industrial Court by the Code conflict with or derogate fro the full exercise of the powers conferred on the trustees f

(1) (1898) A.C., at p. 754, (3) (1922) 1 A.C., at p. 34. d (2) (1922) 1 A.C., at p. 38. (4) (1884) 10 App. Cas., at p. 68. -

Governor by the Savings Bank Act? (4) Can the Code be given reasonable and sensible interpretation without extending it to the subject matter dealt with by the Act? In order that the maxim may be applied all these questions must be answered in the affirma- tive.

(1) The relevant provisions of the Savings Bank Act 1875 axe con- tained in secs. 7, 8, 9, 10, 11,12 and 13. The effect of secs. 7-11 is summarized by Murray C.J. in his reasons for judgment as follows (1): - * To secure economical management the salaries of officers, clerks and servants were made subject to the approval of the Goyernor in Council, but, as against this, to encourage faithful service, certain advantages were held out to the Bank's employees. After a certain number of years' service they might be declared to be on the fixed establishment of the Bank, which gave them the right on death, or retirement for any cause other than misconduct or pecuniary embarrasment, after being on the establishment for twenty years and attaining sixty years of age, to receive one month's salary for every year they had been on the establishment (sec. 8). Their salaries were protected against creditors (sec. 9), and they were given the expecta- tion, which would no doubt be granted as a matter of course, of Teceiving three weeks' leave of absence for recreation, and up to three months' leave of absence in case of illness, or other pressing necessity, in each year (sec. 10), and, if on the fixed establishment, months on

leave of absence for twelve months on half salary, or full salary, after ten years' continuous service, and for twelve months on full salary, after twenty years' continuous service (sec. 11)." Sec. 12 provides that all questions arising respecting leave of absence _or retiring allowances shall be settled by the trustees, whose decision shall be final. Sec. 13 empowers the trustees to make general rules for the guidance, control and information of agents, accountants, clerks and other officers, and requires that such rules shall be (a) "certified by the Attorney-General to be in conformity with law, "{b) approved by the Governor and (c¢) after such approval laid before 'atliament. It provides further that such rules, if not disallowed by either House of Parliament, shall have the same force and efficacy

as if inserted in the Act. These provisions, in my opinion, authorize the trustees, with the approval of the Governor and, where require of the Attomey-General, not only to appoint officers and fix salaries to be paid to them, but to define by general rules all th conditions of employment so far as such conditions are not regula by the Act itself ; and give to general rules duly made and appro the same force and efficacy as if they had been inserted in the A Secs, 7-12 (inclusive) deal exclusively with the relationship betwe the Bank and its employees, their appointment and conditions | employment. Sec. 13 deals with the same subject matter a others. In these circumstances I think it is clear that the contra of service between the Bank and its employees and the general con ditions of their employment received special and individual atte at the hands of Parliament in the Savings Bank Act of 1875;

vided for it, and that that Act must be regarded as special legislat within the meaning of the rule. 4 (2) In my opinion it is clear that the Industrial Code of 1920 i

purposes of gain (except agriculture) ; or by the corporations or of a public nature mentioned in sub-clause (b) of the definiti "employer " contained in sec. 5, and by sub-sec. vir. of that clause it is capable of extension by resolution of both Houses « Parliament to the employees of any other person, firm, compan or corporation. Indeed, if this be not a general enactment, I fi it difficult to conceive what could answer that description. (3) Under the Savings Bank Act the trustees with the aj of the Governor may lawfully fix a maximum salary for a given po tion. Under the Industrial Code the Court may lawfully award the minimum salary to be paid to an officer occupying that pos shall be a sum greater than the maximum so fixed. The awa given binding force by the Code, and by sec. 47 (d) is to prevail ;

any existing contract of service. The Industrial Court may, if the H.C. oF A. 1923.

Code gives it jurisdiction over the trustees and officers of the Bank, alter in one direction or the other every condition of employment of such officers prescribed by the Act or by the rules duly made under 4. Savines BANK oF Sours AUSTRALIA.

officers of the Bank, and to pay them such salaries and emoluments as to the trustees shall seem reasonable. A few rights and privilege are given by the Act to officers placed on the fixed establishn (see sec. 8); but, in the main, the appointment, remuneration, con and removal of the officers of the Bank rest in the volition and d cretion of the trustees. The approval of the Governor to the of the trustees, in cases in which it is required, is clearly for the pro- tection and the benefit of the depositors. Nowhere in the Act ca 7 any provision be found whereby opportunities are afforded to the officers of the Bank for improving their conditions of employmei or the remuneration for their services. So far as these officers a1 concerned, they must submit to such terms and conditions of employ- - ment as to the trustees shall seem reasonable, unless perchance th Governor disapproves of them. On the other hand, the /ndustrial Code approached the relation of employers and employees 1 different point of view. It is notorious that the constant antagoni between employers and employees in industries proved detrin to the public interest, and also inflicted grave hardships upon parties themselves, Consequently the Code set up a public tribu to stand between the parties, and this Code deprived or was intend to deprive both employer and employee of their uncontrolled pow of fixing remuneration and the conditions of employment. An riding power was given to the tribunal: its orders and awards to prevail over contracts (sec. 47), and it was bound to se living wage (sec. 43). Looked at from the point of view of th employees, the Code at last secured them a method of pre their claims and obtaining an independent one of reasonableness and justice thereof.

How is the Savings Bank Act inconsistent with this Code ? objects and powers of the two Acts are wholly different. grants a power or capacity to employ and remunerate its officers, whilst the other gives jurisdiction to the Industrial Court to con and regulate that power and also the power and capacity of e employer and employee to dictate the conditions of employm

and remuneration in an industry. It would be impossible, I should think, to apply the maxim above mentioned to the Industrial Code if it had simply provided for the settlement of industrial disputes. If the limitation of the Code to disputes, to industrial war, repels the application of the maxim, then it is difficult, I think, to say that the extension of the Code to industrial matters generally, to industrial war and to industrial peace alike, attracts the application of the maxim. If the subject matter of the Code would not in the one case be inconsistent with the Savings Bank Act as a fixation of wages and conditions, then it seems to me equally clear that it could not be so in the other case.

In my opinion the Savings Bank Act did not direct its attention to the subject matter dealt with by the Industrial Code, and made no provision for dealing with the mischief which it was the object of that Code to remedy. That mischief was, as I have indicated, the uncontrolled and arbitrary power of employer and employee in relation to employment in industries. The Code established a public tribunal to regulate and control that power, and to do justice between the parties. Some aid is given to this view in the provisions of Part II., Division VIII., of the Code - '" Lock-outs and Strikes." It would be somewhat anomalous to prohibit employees in industry from using the only weapon they possess for improving their con- ditions, namely, a strike, and then fail to give them the benefit of the Code. But such, if the view I take of the case be wrong, would, I think, be the necessary result of Division VIII., coupled with the definitions in the interpretation clause, sec. 5.

Two further observations I desire to make : one, that the awards or orders of the Industrial Court would not be subject to the approval oftheGovernor. The provisions of the Code override, in my opinion, those of the Savings Bank and give of themselves efficacy and force to those awards and orders (see secs. 48 and 51). The other, that the officers of this Bank can be brought within the provisions of the Industrial Code if both Houses of Parliament pass a resolution approving of the inclusion of the Savings Bank in the definition of

(Sours AUSTRALIAN BRANCH) v. Savrves BANK OF Sours AUSTRALIA.

H.C. oF A. employer (see interpretation clause, sec. 5, * Employer," (6) (vu eee: This, I think, is another reason for concluding that the Code is 1

Bask _ inconsistent with the Savings Bank Act. 1 do not wish to say th

Nese the Bank ought to be brought within the provisions of the

Peon I merely point out the power that exists. Whether that erie should or should not be exercised in the circumstances of this BASINS ig a matter entirely for the Houses of Parliament.

Solicitor for the appellant, J. McGee, Adelaide. Solicitors for the respondents, Baker, Glynn, McEwin & Na Adelaide, by Whiting & Aitken. 7

At a glance

Court

Decision date

Before

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Judgment (91 paragraphs)