Clancy v Butchers' Shop Employees Union [1904] HCA 9

High Court of Australia|1904-07-01

THE PRESIDENT AND MEMBERS OF THE COURT OF ARBITRATION, NEW SOUTH WALES ON APPEAL FROM THE SUPREME COURT OF NEW SOUTH WALES.

Industrial Arbitration Act (No. 59 of 1901), #8. 2, 13, 15, 26, 28, agreement - Industrial matter - Industry - Work done or to be done

of Arbitration Court - Excess of jurisdiction - Prohibition - Shops - Hours of

Notwithstanding sec. 32 of the Industrial Arbitration Act prohibition will lie to the Court of Arbitration from the Supreme Court if it exceeds its jurisdiction.

Ex parte the Caterers and Restaurant Keepers Association, (1903) 3 .R. (N.S.W.), 19, so far as it decided that prohibition would lie to the Court of Arbitration, approved.

The term 'industrial matters," in sec. 2, includes only matters that directly affect the work actually dorie or provided by the employer to be done by the employé, or that relate to the mutual rights and privileges of employer and employé. It does not extend to all matters that indirectly affect or relate to an industry.

'The control or regulation of an employer's business after the hour at which the employés have left the place of employment for the day, as by making him close his shop to the public, is not an "industrial matter " within the meaning of sec, 2, and it does not become one by being treated as such in an agreement made between an union of employers and an union of employés for the purpose of settling

Craxey v. Borewers' Suor , Ewpioves Ustox, James Tous News Suorerary, AND THE PRESIDENT AND Menpers or HE Court or ARBITRA- miox, NS.W.

'The Court of Arbitration has no jurisdiction to make an award or to enforce an agreement dealing with matters that do not come within the definition of "industrial matters " in sec. 2.

Decision of the Supreme Court, (1903) 3 S.R. (N.S.W.), 592, reversed.

Appear from a decision of the Supreme Court, (1903) 3 S.R., (N.S.W,), 592.

The appellant was a member of the Master Butchers and Live Stock Buyers Association, an industrial union registered under the Industrial Arbitration Act 1901, Some time before Feb- ruary, 1903, a dispute arose between the association and the respondent union, which was also registered under the Act, with regard to the conditions and terms of employment in the trade This dispute having been referred to, and being pending in, Court of Arbitration, an agreement purporting to be an industri agreement under the Act was entered into between the responde union and the association covering all the points in dispute, a this agreement was subsequently made an award of the Court of Arbitration, and made a common rule, binding upon the appellant and all other persons engaged in the trade within a certain area While the reference to the Court was pending, the appellant sent in his resignation to the secretary of his association, but this treated as having no eftect, by virtue of see. 9 of the Act.

on Mondays, Tuesdays, Thursdays and Fridays; at 1 pan. Wednesdays, and at 9 p.m. on Saturdays." Many other mat were dealt with in other clauses of the agreement, but no penalty was fixed for a breach of any of the terms or conditions by # parties. The Court of Arbitration, however, in the award w! adopted and embodied the agreement, and made it a common 1 directed that certain penalties should be paid for breach of award by any person upon whom it was made binding, and vided procedure for the recovery of the penalties. In the case 0 a breach by members of the Masters' Association the penalty to be a sum not exceeding £5, to be paid to the respondent uni or to its registered officer. On 3rd June, 1903, a summons wa taken out by the respondents calling upon the appellant to s cause before the Arbitration Court why he should not pay penalty of £5 for a breach of the award, in that he had contraven

shop open until 9.30 p.m. on a Saturday. The summons came on for hearing before the Court on 27th July, and it was contended on behalf of the appellant that the Court had no jurisdiction to 'enforce the award, in that it limited the right of a butcher to keep his shop open within the limits of time allowed by the Zarly

industrial matter, and the Court had jurisdiction in reference to industrial matters only. Under the Harly Closing Act the time 'at which the appellant was bound to close his shop on Saturday 4 was 10 pm. On 4th August the President, Cohen, J., delivered judgment imposing a penalty of £2 10s. in respect of each breach, with costs, to be paid by a certain date to the respondent News. On 10th August, 1903, a Rule Nisi was obtained by the appellant for a prohibition restraining the respondent union and the mem-

1 atter ; (2) that the order and award were in conflict with the arly Closing Act of 1899.

On 6th November the Supreme Court (consisting of Stephen, O.J., Owen, J., and Pring, J.), heard argument on the motion to

harging the Rule Nisi with costs, (Pring, J., dissenting). The dgments are reported in (1903) 3 S.R. (N.S.W 2 The Supreme Court had held in a previous case - Ev parte terers and Restawrant Keepers Association, (1903) 3 S.R. N.S.W.), 19 - that prohibition would lie to the Court of Arbitra- tion if it acted in excess of jurisdiction, and the point was therefore not raised before the former Court in this case.

ordon, K.C. (Wade with him), for appellant. The Court of itration had no jurisdiction to make the order complained of. has jurisdiction only to deal with "industrial matters" as efined by sec. 2,and the matter dealt with in clause 4 of the eement does not come within that definition. The President

Closing Act of 1899, and that the matter dealt with in clause 4 °° of the agreement upon which the award was based was not an %*

clause 4 of the agreement embodied in the award by keeping his H. ©. or A. 1904.

Borower's Snor , EMrLoyes Unios, James JouN News Secrerary, AND THE PRESIDENT AND Menpers oF He CouRT oF ARBITRA- 10x, N.S. W

of the Court virtually decided that it was not an industrial matter. In his judgment, at page 388, he expressed the opinion that the provisions of the Act " covered every condition of employ- ment which mutually and directly affects the relation of employer and employed," and proceeded to say, " Speaking for myself, Tam unable to see how these mutual relations are affected, if the employé is released from work whilst the shop in which he is employed may be open." In that view, the matter could not be made a common rule binding upon all master butchers. But he thought that this case was put ona different footing by the fact that the appellant was a party to an agreement by which he gave

up certain rights, and it would seem that the real reason for his

decision enforcing the award was that he regarded the proceeding rather as the enforcement of an agreement than of a common rule As to that, it is submitted that the appellant was not an assenti party, because he sent in his resignation before the award, and though sec. 9 of the Act rendered his resignation ineffectual, the: award was really made in iivitum. At any rate, he was nota ember at the time of the breach. But, apart from this, he could not be bound by an agreement or award dealing with matters over which the Court had no jurisdiction. Tf the award was in excess of jurisdiction, the fact that appellant was a party to the agreement upon which the award was based can make no difference in case. The penalty was claimed in respect of the breach of an

not an industrial matter, and that, therefore, the Court hadn jurisdiction to deal with it in any way, and certainly not to ma

it part of an award and enforce it against the appellant.

Sylvester's Case, reported in (1903) A.R., 385, the President held H. ©. or A. "that this matter could not be made the subject of a common rule, 1%

and his judgment in this case shows that he was even then of the 4 oy

opinion that it was not an industrial matter, for he says that v. Boreners'

masters who are members of the association will be bound by the award making the clause a common rule, but that those who are not members will not be bound, and will be able to keep their 'shops open till 6 p.m., the hour allowed by the Barly Closing Act. si _ [O'Connor, J. - The question whether the appellant is bound by a the agreement or not depends upon whether the parties to it had hoi authority to bind him, and they only have authority to bind him pon an industrial matter.]

The whole case turns upon that. In considering the meaning of the term "industrial matters" I refer first to sec. 13 of the Act. at section shows the mean'

g of the words "industrial agree- nent," that it is an "agreement in writing relating to any i Clearly therefore no other matters may be made the subject of an industrial agreement. Sec. 2 defines industrial matters" as "matters or things affecting or relating to work done or to be done, or the privileges, rights or duties of iployers or employés in any indu: nd continues, "includes all matters relating to (a) wages, allow- es," &e.; "(b) the hours of employment, sex, age," &e.; "(c) the employment of children," &. This clause does not come Within any of these groups. If it provided that the shops welfe to be shut at 9 p.m., only so far as the employés are concerned, it

ight come within the definition, but the clause does not say that, \d even if it had said so there was no allegation or any evidence employés were in the shop after that hour. On the other hand, taking the clause to mean what it says, that shops are to closed whether employés are kept there or not, it is not an lustrial matter within the meaning of the Act. Such a matter have some reference to the mutual relationship of employer demployé. The definition of "industry" in the same section rther strengthens this contention. After the relation of employer ad employé has ceased to exist it cannot be said that the " work the industry" as there defined, continues, and therefore the has no jurisdiction to interfere with the actions of employer

or employé after that time. Otherwise it would be possible for" the Court to prevent an employer from doing anything at all in" his business after hours, even with his shop shut. The whole purview of the Act is the regulation of the actual conditions of -

employment and the relationship of employer and employé as" such.

[Grirriru, C.J. - The learned President apparently thought that this was not a matter which could have been made the subject of a common rule.) 4

That is clear both from his judgment in this case and in Sylvester's Case (1903, A.R., 390). In the latter case he held that although there was a common rule, Sylvester was not bound by it, because he had not been a party to the agreement. As far as the _ rights under the agreement are concerned, whatever they were, they were not within the jurisdiction of the Arbitration Co See. 26 strictly limits the Court's jurisdiction to industrial matters, and by sec. 32 there is no appeal from its decisions if acting within its jurisdiction. See. 37 provides that there can be no common rule except as to industrial matters. The Supreme Court really decided against the appellant on the ground of agreement, as appears from the judgment of Owen, J., 1903, 3 S.R. (N.S.W.), 592, at p. 596.

[Barron, J - A person may bind himself by an agreement a be liable in some way for a breach of that agreement in some @ourt or other, but unless the particular undertaking, of which enforcement is sought, is an industrial matter, the Court of Arbitration has no jurisdiction to enforce it against him.]

[O'Connor, J - The ground of this decision seems to be that, though this is not strictly an industrial matter, still the partie treated it as such on the ground that the quantum of work for the employés might be affected by it, and that, therefore, it does relate to'work done or to be done in an industry.]

'That is practically allowing the parties to extend the juristie- tion of the Court by agreement. That cannot be done. Ther are many matters which, in some way, affect an industry, but not within the definition of industrial matters. That definition only includes matters which affect or relate to the industry it certain ways, and clause 4 does not come within that class.

_ consideration of the scope and intention of the whole Act shows H- ©. oF A. 1904.

clearly that it was never intended to give the Court jurisdiction

to make awards which would interfere with the businesses of employers beyond the extent necessary for the purpose of regulating their relations with their employés.

___ Piddington,for therespondentunion and J.J.News. Prohibition 5 will not lie from the Supreme Court to the Court of Arbitration. Seon aT _ We rely on sees. 32 and 41. These sections make it clear that the Presment

"legislature intended that the Court of Arbitration should be inde- steamers or _ pendent of the other Courts of the realm. The former can only be ran Cou taken to mean that the legislature took the risk attached to the ™*,N-S.W. establishment of a Court responsible to nobody but themselves.

Although the words in the first part of the section that " proceed-

ings in the Court shall not be removable to any other Court by

certiorari or otherwise," have been held not to oust the jurisdic-

tion of the superior Court to issue a writ of prohibition where the

statutory Court has acted in excess of or without jurisdiction,

here are words used later on in the section which are new and

ever have been used in any Statute. These words must be given

their full meaning, and that cannot be done if the Court holds that prohibition will lie.

[Grirrrrn, C.J. - Suppose the Court entertained an action for

That would be an extreme case. It must be assumed that the

Court would not attempt to wilfully transgress the limits of its

_ jurisdiction. It is essential that a Court dealing with such matters

as come before the Arbitration Court should not be subject to

prohibition. The delay of appeals would interfere too seriously

' [Barron, J. - But surely there must be some way of preventing _ it from arrogating to itself the jurisdictions of all other Courts.] In the Caterers' Case, (1903) 3 S.R. (N.S.W.), 19, the Acting Chief 7 fustice, in holding that prohibition would lie, made a distinction 'tween preventing the Court from making an order and attack- an order already made. The legislature could not have used ords more appropriate for conferring upon the Court absolute pendence of the control of all other Courts. Sec. 39 even ives it power over other Courts.

Unoy, Tames Jou News SECRETARY, AND THE PRESIDENT 'AND Members or TH Court or ARBITRA- tion, N.S.W.

(Grirrira, C.J - On your view, what is there to prevent that Court from going so far as to stay proceedings in the Suprem Court 7]

That is very unlikely, and, whatever risk there is, the legislature has restricted to six years, when the Court expires by efftuxion of time. The word "challenged" has no technical meaning, but I

(O'Coynor, J. - Must it not be taken that in the case of all th words there is an implied limitation that the Court keeps withi its jurisdiction 7]

By this section, the legislature has declared its intention' clearly. It has power to control the jurisdiction of the Supreme Court, and, therefore, to appoint a statutory Court, which Supreme Court shall not prohibit. If the words used here do not effect this, no words ever can do so. To apply for a writ of prohibition is to "call in question" within the meaning of section. They are not technical words, and must have their natural meaning. On the appellants' contention the words ai superfluity. Words in a Statute are not to be treated as super fluous unless it is perfectly clear that they are. Again, that writ of prohibition should lie to the Court is inconsistent with sec. 41. Under that section the Court may issue a mandamus or prohibition to the Registrar of the Court. The result, therefore might be that the Supreme Court could issue a prohibition direct to the Court of Arbitration and Registrar, to prohibit them from doing a certain thing, and at the same time the Court of Arbitra- tion could issue a mandamus to its Registrar commanding him to do that very thing. There would then be a conflict of authori It cannot be supposed that the legislature intended that such conflict as this should be possible.

(Grirerru, C.J - Is there any judicial duty imposed upon th Registrar that would make prohibition applicable 7]

Yes, by sees. 4 and 8. In R. v. Whitmarsh, 14 Q.B., 803; Q.B., 600, mandamus was issued to the Registrar of a company t compel him to register shares. [On this point he referred also t Shortt on Mandamus and Prohibition, 1887 ed., p. 256), F

[O'Coynor, J. - But there would still be the same question jurisdiction. If the matter was outside the jurisdiction of the President, his writ would be futile.] t

_ Again, from the policy of the Act shown in the preamble and ec. 34, it is clear that the legislature intended to make the Court independent. The intention was to put an end to the atural right to strike or lockout, and for that to substitute the arbitrament of the Court as the only way to secure industrial peace. That peace can never be secured if the Court's decis can be attacked. The delay that would inevitably follow other- e would defeat the intention of the Act by making all uncertain. A single Judge may make an order for prohibition at any time, and he might make such an order and compel the parties to wait until the Full Court could review his decision, and in the meantime the people concerned would be uncertain as

to their position. This might be disastrous to business. Barron, J. - It may be admitted that the policy of the Act vas to protect the Court from interference in dealing with all matters entrusted to it, but what is there in the Act to show that _ They are given power to decide what are industrial matte [Barton, J - Then no line can be drawn round their juris- ction. ]

hat is a risk that the legislature has deliberately taken. A upreme Court Judge is made President of the Court. There is 0 precedent of a prohibition to a Supreme Court Judge, except Ke parte Cowan, 3 B. & Ald., 123.

(Grirrirx, C.J. - Yes. In England it has been the practice for ws to issue prohibition to the Railway Commissioners, one of whom is a Judge of the High Court of Judicature.]

_ [Barron, J. - The appointment of a Supreme Court Judge is merely for the purpose of securing a fit and proper person.]

_ [O'Connor, J. - As soon as appointed he loses his identity as a fudge and becomes President of the Court.}

On the main point. This is an industrial matter, and can be made the subject of industrial agreement. So long as it affects me side, employer or employé, in relation to their work, it is

power was given to it over anything but industrial matte

mmaterial whether it concerns the other side in that way. A er has the right or privilege by Common Law to carry on is business as long as he pleases. As was put by Cohen, J., the lasters gave up this right which the Early Closing Act had

James Jony News Srorerany, AND THE PRESIDENT AND MeEmBers oF THE CouRr or ARBITRA- tron, N.S.W.

allowed them, of keeping shops open until 6 p.m., and so it must

(Grivrrru, C.J. - But surely the matter must be one affecting the mutual relationship of employer and employé, not on affecting one side only.]

The agreement stamps it as a matter affecting both sides. But assuming for the moment that it is not an industrial matter i itself, it is made so by the agreement. There are mutual con cessions, and the masters get an exchange of something that is industrial for something that in itself might be extra

is proof that it is in the nature of an industrial matter. is part of the consideration, and bears upon the industry.

[Grirriru, C.J. - But, if it is only by virtue of the agreeme that it becomes an industrial matter, how can the appellant b bound, since the union have only authority to bind him upon matters that are industrial, and have no authority to embrace am} other matters in the agreement, so as to make them " industrial.

The unions regard closing of shops as an industrial matter, a who is to say that they are wrong? In New Zealand that view i taken, and that was the basis of the decision in Zn re Sylveste (1903) A.R., 390. The bulk of the agreement dealt with matte admittedly industrial, and the inclusion of others does not mak¢ the whole invalid. It is sufficient that the consideration for the concession is industrial. There is nothing to restrict agreements absolutely to industrial matters. Moreover, the union i negotiating as the agent of the members, and therefore, when acting in their interests can bind them even upon matters outs their express authority. But apart from the agreement closing of shops is an industrial matter in itself in this way. the conditions of trade are made uniform it is possible for employers as a whole to give better terms to employés as whole ; see Ex parte Walker, (1903) A.R., 207. So if there is restriction upon some butchers from keeping their shops ope after 5 p.m., the Court, on the ground that the whole trade be affected, and in order to prevent others who are not subj to this restriction from profiting by the loss of those whoa and so defeating the whole purpose of the arrangement, may d

upon all employers. It therefore affects the privileges or rights of employers, and the work done or to be done in the industry by

the employés. It is immaterial whether rights and privileges 4.7 uns affected are rights and privileges in relation to employés, so long een. as they are "in the industry." Ustoy, (Grieriri, C.J. - Your argument goes to this extent, that the 7YSJo"* control of every matter relating to an industry in any way is eens within the power conferred by the Act. The Court could say Presipexr that butchers must deal for cash and not on credit.) Maunnisbe

Without conceding as much as that, I contend that the sae Cou evidence in this case showed that the matter closely affected t10N, N.S.W. the industry, because it was proved that there was dissension etween employers on this very question of closing shops. (Grirriru, C.J - But does not the use of the word " employer" the section connote the existence of employés, and the relation- hip of one class to the other ? |

_ Yes, in a sense. But a man may be an employé whether actually engaged in an employment or not - as for instance, when ona holiday. Sec. 36 seems to imply that a person may be an

ployé within the meaning of the Act when he is not actually

Again, this is a matter or thing affecting or relating to " work done or to be done." It is most important for the Court of Arbitration to decide whether the men who have contracted with the employers shall have all the work that the employers can give them. (See judgment of Owen, J.,on the " quantum of work " available.) Difficulties might easily arise on this point, and the peace of the industry be disturbed thereby. For instance, the iployers might think fit to employ other men to do the work vemaining after the ordinary hour for ceasing work. "Wages and allowances" would also be affected. The wages fixed by the agreement are arrived at on the understanding that the employés 0 are parties to it shall get all the work that the employers have to give. Again it affects the " modes, terms, and conditions employment." It is a condition of employment, not of necessity, but as a matter of fact. It is a more favourable condition for the employé that the shops be closed at 5 than later.

H.C. or A. [Grirrrrn, C.J. - How does it affect his condition if he has

Chaney That argument was used against the provision in the Harly Burourns Closing Act (No. 38 of 1899), that all shops should be closed at Pid 7 certain hour. The object of that Act was not to close the shoj

Ustox, but to limit the hours of labour of shop assistants ; see Coll

Tas JOHN \ Roberts, (1896) 1 Q.B., 457. The legislature considered that ShonzEany) this could only be effected by compelling all shops to close. It is Presipext therefore a guarantee for the employés that their hours of labo Members or Will not be lengthened. If shops were allowed to remain open, tHe CoUREO® i would soon happen that assistants would be found to worl t10N, N.S.W. after hours. The shopkeepers employing them would thus gain an advantage over others who faithfully kept the spirit of th law, and the object of the Act would be defeated. It is the si with this clause in the agreement. The union has adopted same means as the legislature to obtain the same end - namely fixed hours of labour. The same policy has been adopted in Ney Zealand, and a similar term incorporated in the agreem (Dunedin Butchers Case, vol. 1. of Awards, Reconvmendatio Agreements, &e., made under the Industrial Conciliation and Arbitration Act, N.Z., p. 262.) It is clear, therefore, that in an industrial matter. At any rate th

strictest sense this is Court of Arbitration was not clearly wrong in holding that it was an industrial matter, and, if this Court is of opinion that i is only doubtful whether the decision was wrong, it will not grant prohibition. (Laylor vy. Nicholls, LR, 1 C.P.D., 242, Brett, J.)

Holman followed. This agreement was within the authoritj of the appellant's union to make. Primd fucie every agreem made between the unions as to the conditions of trade is industria Tf amongst a body of industrial matters you find something no industrial, the agreement is still good as an industrial agree Otherwise the word " exclusively " would have to be read int Act after "relating." The question is, which part of the a ment gives character to the whole, the industrial or non-industri It is clear from see. 13 that the inclusion of an extra-indu matter does not make the whole agreement non-industrial, but th

inclusion of industrial matter makes the whole industrial. If e agreement essentially and substantially relates to industrial itters, the incidental inclusion of non-industrial matters does alter its general character. I admit that if the non-industrial natter could be severed from the rest, then that part should not be dealt with by the Court, but I contend that if the agreement is not so severable, then the whole must stand.

(Barron, J - Can the Court cover more ground by enforcing n industrial agreement than it could by merely making an d independent of agreement ? ]

No, because the same principle would apply to an award as to

[Grirrira, C.J. - You must support this as an award, not as nagreement. It isa sort of consent decree. Consent cannot jurisdiction. If you had sought to enforce this as an agree- ent under sec. 15, the procedure would have been different, and redress granted also different. }

By see. 37 any term of an agreement can be made a common Evidently, therefore, it treats the agreement as still sub- ing, even at the time of and after the award. There is no

{Barron, J. - Do not the whole rights of the parties in respect o this matter now rest upon the award, as they have exercised

But the agreement affects the matter still, not so as to give isdiction by consent, but because, by the terms of the Act, matters dealt with by parties in an industrial agreement become lustrial matters. This clause is inserted as a sort of guarantee ist extending the hours of labour. The employés say that

the same footing as that prohibiting employés from lodging employers. Such a guarantee clearly relates to the " work e or to be done," and to the "rights and privileges" of

nagreement. The mere presence of non-industrial matters in 710s) N.S.W.

employers and employés. It must therefore be treated as a "industrial matter" within the meaning of the Act.

Borcners' mig : Suor, the Supreme Court has no power to prohibit. The Court of

E: says Us Arbitration is a statutory Court, and must keep within the Juris Faxes JOUN diction conferred upon it by the Statute. There can be

Ren RTARY» dispute that, where an inferior Court acts in excess of juni

Presimexr diction, it encroaches upon the Crown prerogative, and can

Re oo restrained by the High Court of Judicature; Worthington

euoune oF Jeffries, 32 L.T., 606; LR. 10 C.P., 879; Lord Mayor of London tion, N. Cor, LR. 2H. of L., 239. This right of the higher Court

interfere can only be taken away by express words or necessary

implication, and that is not the ease here; Jacobs y. Brett, 32

LT., 522; L.R. 20 Eq., 1; Bridge v. Branch, L.R. 1 C.P.D, 6

This is an industrial matter. "Industry," as defined by see. 2,

means " business, &e.," "in which persons are employed for

or reward." The industry does not cease to exist when employés have left the place of employment, but continues |

the premises at the time or not. An "industrial matter" isa matter relating to work done or to be done in any industry. Any work therefore done or to be done in any industry included. Taking the industry to continue after the cessation of work by employés, the work done by the appellant in selling, work done or to be done in the industry, and is included in the definition. It is immaterial that it is done by the employer him- self.

[Grirrirx, C.J. - * Work" may mean only work done or to b done by employés.]

A consideration of the whole section shows that that is not s Again, "privileges or rights" mean privileges or rights in industry, even if they are enjoyed by employers or employ merely as men and not as employers or employés. An employer may have a privilege or a right in an industry, though it is no a privilege or a right as against his employés. There are 0

vords in the Act to limit the meaning to privileges and rights enjoyed by employer qud employer, and employé qué employé. ery employer has by law the privilege or right to keep his 'place of business open until the hour fixed by the Zarly Closing Act, and therefore clause 4, as it affects this privilege or right, relates to an industrial matter, and can be enforced by the Court of Arbitration. As to the Zurly Closing Act, this Court is asked

the hours of labour without coming into conflict with that Act.

Gordon, K.C., in reply. The Supreme Court has power to t prohibition to the Court of Arbitration. In Ex parte Bradlaugh, LR. 3 Q.B.D., 509, it was held that sec. 49 of 2 & 3 Vie., c. 71, taking away the right to certiorari, did not apply to the case of the inferior Court acting altogether without juris- diction. [He referred also to Mayor of London vy. Cox, LR. 2

of L., 239, judgment of Willes, J., at p. 254; Worthington v- [ oe and to the agement of Stephen, J., Association, (1903)

ht be directed to the Registrar, there could be no such conflict, use the writ of the Supreme Court would go to the President ind Members, not to the Registrar. The question whether this is an industrial matter has been complicated by the confusion of rights of the parties under the agreement with the juris- ion of the Court to make an award in respect of it. For the urposes of this case the agreement need not be considered at all. chas been swept away by the award. If that is invalid, the ity of the parties on other grounds is immaterial. The d is intended to bind not only parties to the agreement but Il persons mentioned in it. The clause was made a common rule. fit is not good as a common rule, it is because it deals with matters ide the jurisdiction of the Court, and therefore the question arty or non-party does not arise. It cannot be contended at the agreement takes its colour from the industrial matters

to say how far the Court of Arbitration may go in dealing with 5

'[Grirerrn, C.J., referred to Hardcastle on Interpretation of

Janes Jouy News Sxorera AND THE Present AND MEMBERS OF tie Court oF ARBITRA- miox, N.S.W.

, The fact that the non-industrial ingredient is subsidiary or

» the agreement. The argument that the industry is continuing,

contained in it. It is either wholly industrial, in which case it comes within the jurisdiction of the Court, or not wholly in- dustrial, in which case the Court has no power to deal with it.

incidental can make no difference. It should not be there at all. The clause to be enforced, however unimportant, if extra- industrial, cannot shelter itself behind the industrial portions of

and that work done by the employer after his employés have gone is included in the definition, would lead to the absolute control of business by the Court, and would apply to the leisure _ time of the employés as well as of employers. The " privileges and rights " intended are mutual privileges and rights, as between

GrirrirH, C.J. This is an appeal from an order of the Supreme Court of New South Wales discharging an order nisi for a prohibition directed to the Arbitration Court and the present respondents. ' It was sought to prohibit them from pro- ceeding upon an order of the Arbitration Court imposing a fine upon the appellant for a breach of an award of that Court. That award contains a clause to the effect that all shops of the cla to which that kept by the appellant belonged should be closed at 1 p.m. on Wednesdays, 9 p.m. on Saturdays, and 5 p.m. on ot] : days. It was objected by the respondent union that no p hibition lay from the Supreme Court to the Arbitration Com This objection was founded upon sec. 32 of the Jndustrial Arbitration Act 1901, which provides that - * Proceedings in thi Court shall not be removable to any other Court by certiorari or otherwise, and no award, order, or proceeding of the Court sI be vitiated by reason only of any informality or want of form o1 he liable to be challenged, appealed against, reviewed, quashed, 0 called in question by any Court of judicature on any accoun whatsoever." It is said that this section altogether excludes jurisdiction of the Supreme Court to interfere with the pro ceedings of the Arbitration Court in any way.

There are two answers to this contention, one being that simi

_ sections taking away the right to certiorari and other remedies have always been construed as not extending to cas a Court with limited jusisdiction has exceeded its jurisdiction. ~ It has often been held that when the legislature uses words in this well-known form they must always be taken to have intended the enactment to be subject to the rule I have mentioned. The

apparently contradictory, such a construction must, if possible, be put upon them as will render them all consistent with one another. In this case it will be found that the legislature has carefully defined and limited the jurisdiction of the Arbitration Court. Sec. 16 provides for the appointment of the Court in these words : - " There shall be a Court of Arbitration for the hearing and determining of industrial disputes and of references and applications under this Act. The Court shall be a Court _ of record and shall have a seal which shall be judicially noticed. 'The Court shall consist of a President and two members." ec. 26 provides that - * The Court shall have "power" as to several matters, all of which are carefully defined. 'Then, the jurisdiction of the Court having been so defined, sec. 28 is : - " No matter within the jurisdiction of the Court" (words hich recognize the existence of a limit to the jurisdiction) "may he referred to the Court, nor may any application be made to the Court except by an industrial union or by any person affected or warieved by an order of the Court," and then proceeds to prescribe the manner in which such persons and unions may bring such 'matters before the Court. Thus not only is the jurisdiction of the Court itself restricted, but even the persons entitled to invoke _its aid are limited and enumerated in.detail. 'To hold in the face these provisions that sec. 32 prevents the Supreme Court om checking any excess of jurisdiction would be in effect to ve the inferior Court unlimited jurisdiction. For these reasons have no doubt that the Supreme Court had jurisdiction to grant 8 prohibition.

The question for consideration now is whether the Arbitration ourt in making the order against the appellant has exceeded its sdiction, and in considering that point it is necessary to mine closely what the actual proceeding was, because there

other answer is that where different parts of a Statute are '

HC. or A. 1904. <a Ciaxoy v. Burcners' Suor , Emproves Ustox, James Joux News SECRETARY, AND THE PRESIDENT AND Members oF THE Court or ARBITRA- mi0N, N.S.W.

seems to have been some misunderstanding on the point, and different views have been expressed at different stages of the case. It appears that at some time before 3rd February, 1903, an industrial dispute arose between the Butchers' Shop Employés Union and the Master Butchers Association, and on 3rd February an order or award was made by the Arbitration Court which states : - " The Court of Arbitration haying taken into consider ation the matter of the above-named dispute . . . . and the industrial agreement entered into between the claimants and respondents herein on 28th January, 1903, &e., doth order and direct that . . . . the terms and conditions set out in the aforesaid agreement . . . . shall be a common rule binding upon all persons engaged in the butcher's busin within a certain area, "and doth hereby further order and declare that any breach of the terms, conditions, and provision set out in the said agreement . . . . by the said Union or any member thereof, or by the said Association or any member thereof, or by any any person not a member of the said Associ tion carrying on business within the aforesaid area shall constitut a breach of this award."

Another clause of the award was to the effect that if any mem- ber of the association or the union should commit a breach of the award he should be liable to a penalty not exceeding £5 for every breach thereof, and that any person, not a member of those bodi

officer. The agreement in question appears to have been made on 28th January, 1903, between the parties pending litigation, as a basis of settlement, and it was adopted by the Arbitration Co and embodied in its award, as was often done in such cases. award having been made, on 3rd June, 1903, a summons taken out - there were in fact three summonses - against appellant, calling upon him to show cause why he should not pay the respondent, James John News, the registered officer of respondent union, the sum of £5, being a penalty for a bre committed by him of the order of the Court of Arbitration ol February 3rd, 1903. An affidavit of James John News, filed

'support of the summons, alleged that one of the terms of the agreement embodied in the above-mentioned award was to the 'effect that all shops kept by members of the Association, of whom the appellant was one, should close at 5 p.m. on Monday, Tuesday, 'Thursday and Friday, 1 p.m. on Wednesday, and 9 p.m. on Satur- 10P , day, and that a breach of the award had been committed by the ai appellant in that he did on Saturday, May 30th, keep his shop

open till 9.30 p.m. There can be no doubt that the summons was Srcxerary, for a breach of the award, and if the award was invalid, that is, Parsipexr if it was not within the jurisdiction of the Court to make an award upon the point in question, the summons disclosed no offence, and the Court had no jurisdiction to punish the appellant for : doing that which was not a breach of any valid award. The 'summons was heard before the Arbitration Court, and the learned President appears, in his judgment (1903 A.R., 388), to have treated the matter not as the question of a breach of an award binding

upon all persons as a common rule, but as a breach of an indus- ial agreement by a party toit. In his judgment, after pointing out the powers of the Court, he said "In my opinion, however,

gives up a right or privilege that the law has conferred upon

" and he added later on - * Seeing that the industrial ion, of which the respondent is a member, was a party to the ndustrial agreement, the breach of which is complained of, he nust be bound by it as strongly as if it had been his own personal agreement." He evidently treated the matter as if it were a breach of the agreement already mentioned. Owen, J., 0 appears to have been impressed to some extent with the ne view, though he did not altogether base his judgment upon The learned President, when asked, in another case that came before the Court, to enforce an award upon a similar matter (In re Sylvester), refused to do so, on the ground that in his opinion the award could not have any effect except as an agree- nt, and therefore could not bind persons who were not parties. is desirable to point out that proceedings for the breach of an eement are very different from proceedings for breach of an An award is an order of the Court. It is true that e. 15 provides that - * An industrial agreement as between the

SECRETARY, DrHe DENT AND MEMBERS OF HE Court or ARBITRA- mio, NS.

"to the Court to enforce an agreement against any person, he -

question then would always be whether the matter to which the | HIGH COURT. F (1904.

parties bound by the same shall have the same effect, and may be

enforced in the same way as an award of the Court of Arbitra-

tion, and the Court shall have full and exclusive jurisdiction in - respect thereof." But the proceedings would have to be taken | for penalties due as a matter of contract, not as consequent upon a breach of an order of the Court. Further, upon an application

would be entitled to show that he was not a party to it. Before he could be bound by it it would have to be shown either that he was a party to the agreement, or that it had been made on his_ behalf by someone who had authority to bind him, and the

agreement referred was one upon which the agent had authority to bind the members of the union, his principals ; and that would depend on the question whether the matter was an " industrial matter" within the meaning of the Act. If the matter did not come within the words of the Act the union would have no power to bind its members, and the agreement would altogether inoperative. The question, therefore, is always the same, whether the matter of the agreement was or was not an industrial matter within the meaning of the Act, and the case of an industrial agreement there is this additional question, whether the particular person against whom the agree: ment is sought to be enforced was a party to it. In this case the proceeding was for the breach of an award, and the question i whether the Court had jurisdiction to make the order complained of. The answer to this depends upon see. 16, which empowers t Court to "hear and determine industrial disputes and references and applications under this Act," taken in connection with definition of "industrial disputes" and "industrial matters," sec. 2. An "industrial dispute " is defined as a dispute in relati to industrial matters between an employer or industrial union of employers on the one part, and an industrial union of employé or trade-union or branch on the other part, and includes am dispute arising out of an industrial agreement. "Industri matters" are defined to mean matters or things affecting or relat to work done or to be done, or the privileges, rights, or duties 0 employers or employés in any industry, with certain limitation

not necessary to mention. "Industry" is defined to mean busi- H. C. or A.

ness, trade, manufacture, undertaking, calling or employment in eels hich persons are employed for hire or reward, including the ese management of certain public concerns, but not including employ- v Burcuers'

ment in domestic service. The question, therefore, is whether the ~ snop icular term in the agreement, as to which the dispute arose, elating to the closing of shops, referred to a matter that comes

no jurisdiction to deal with it. In construing the Act it), 4°. |. hould be borne in mind that it is an Act in restriction of rH Courror e common law rights of the subject, and, though that is jo reason why the fullest effect should not be given to its wovisions, it is a reason why the meaning should not be trained as against the liberty of the subject It was contended ty forcibly that the definition of "industrial matters" in the

et was large enough to cover this case. Certainly if there were

0 definition in the Act the words might be taken in one sense to include all matters or things affecting or relating in any way to industry. The respondents' contention went as far as that, but those are not the words of the Act. There are inter- words in the Act which were intended to be words of tation, so that "industrial matters" should not include all natters affecting or relating to any industry, but only certain es of those matters. The words " privileges, rights or duties f employers or employés in any industry," clearly refer to ters of mutual obligation. They imply ex vi termini that are two parties, one of whom owes a duty or possesses a ight as against the other. The argument was pressed on behalf the respondents that the matters in question fell within the ening of the words "affecting or relating to work done or to done in an industry," and that view seems to have been opted by Owen, J., in the Supreme Court. He seems to have

ht that the agreement should be treated as a whole, and that 1e parties, by assenting to the inclusion of the term in question the agreement, had treated it as an "industrial matter," in the nse of being a matter that related to the industry ; and he gave nees of the way in which the time of closing shops might affect

"work done or to be done." In his judgment (p. 597), he says:

_ shop open after that hour to deliver the meat either personally o1

" Suppose, for instance, that a butcher engaged his employés to cut _ up joints and meat till 9 p.m., and then dismissed them, but kept his

with the assistance of his children, or his wife, or himself cut up the meat for customers without any assistance. His employés might - consider that such conduct diminished the quantum of work o the shop assistants and their wages, and, therefore, ought to be regulated by specific agreement." It does not follow, however, that it would on that account be an industrial matter. He then goes on to say.: "I therefore see that the agreement for all sho to close at the same hour may have been insisted on by # employés as affecting them in relation to the employers in tl way I have indicated, and may have formed an integral part of the agreement into which both unions entered in order to settle the dispute. If that be so, then the term in question became much an industrial matter as any of the terms in the agreement." I turn then to the section to see whether the words of the defini- tion go as far as that. In one sense this case may fall within th words of the section, but if that view is adopted I do not see hi any matter affecting an iudustry could be excluded, because eve matter affecting or relating to an industry must direetly indirectly relate to the " work done or to be done" in th industry - that is, to the work which would ultimately hay to be done by the employés in that industry. Evident some limitation of the meaning is necessary. In what sen then, is the word "work" used in the Act? In the sa section "

employer" is defined as meaning "a person, firm company, or corporation employing persons working in a industry." Under the definition of "lock-out," I find the word "the closing of a place of employment or the suspension of work by an employer," i.c., the employer in that case takes away fro the employé the opportunity of doing work in the industry. 1 the definition of "strike" are the words "the cessation of wo by a body of employés acting in combination." The word "we in the Act always means work done by an employé; and I clearly of opinion that the words "work done or to be done

mean work actually done by the employé or actually provided b

the employer to be done, that is, such as he thinks fit to provide, but that they do not in any way refer to the quantity of work which the employer is to provide for the employés. If it were so, the Arbitration Court would have a new power not suggested by any words of the Act, a power to regulate the carrying on of an industry at large, that is, to require the employer to employ a particular number of employés, and to provide a sufficient quantity of work for them, and enable them to earn a maximum or minimum wage, conditions which it would be impossible for the employer to fulfil unless he had sufficient capital. I think therefore that: the expression " work done or to be done" means tual and not hypothetical work, such work as shall be provided ; and that they have nothing to do with prescribing what work hall be provided by an employer. There is nothing in this wovision to give the Arbitration Court jurisdiction to interfere with the employer during his own spare time; but after the lationship of employer and employé has ended the employer is ee to do as he pleases. He retains his common law right to spose of his own time as he thinks fit without reference to yone else, and the Arbitration Court has no power under the to interfere with the exercise of this right. _ I should advert to another argument used on behalf of the "appellants, viz, that the agreement and award were in conflict with the Harly Closing Act. I do not think so at all. The fact at the duration of the business hours was limited by some other was not at all inconsistent with an arrangement that work ould cease and shops be closed before the hour fixed by that Act. But I think that the stipulation dealing with the matter in ques- ion was not one relating to an "industrial matter" within the eaning of the Arbitration Act, even upon the most liberal iterpretation of its provisions, and that the Arbitration Court therefore no jurisdiction to embody that stipulation in its d, and that the Supreme Court ought, consequently, to i we granted the prohibition restraining the respondents from eeding upon the order made by the Arbitration Court in spect of a breach by the appellant of that term of the award.

Barton, J. I amof the same opinion. It is quite unnecessary

H. ©. or A. 1904. Rae, Ciancy v. BurcHers' Sor , Eprovis Ustox, Tames Jom News SECRETARY, AND THE PRESIDENT AND MEMBERS OF ne Court oF ARBITRA- a10N, N.S. W.

H.C. or A. 1904, pee Cuaxey Bourcuers' SHOP , Empnoyes Ustox, James Joun News SkcRETARY, AND THU PRESIDENT AND Mears o¥

-an Act which gives new and very extensive rights and remedies,

for me to traverse in detail the ground which the Chief Justice has so fully dealt with. In its essence the question hinges upon the interpretation of the definition of "industrial matters" in sec. 2 of the Act, and I do not think that this was a matter affecting the "work done or to be done" within the meaning of that definition. I think that the words in the section refer only to actual work done or to be done by the employé. j

O'Coynor, J. Tentirely concur with the opinions expressed by_ the other members of the Court. With regard to the question of jurisdiction, I think that it is particularly important in applying and, in a sense, creates relations altogether new to the law, that the power of the Supreme Court to see that all inferior Courts keep within the jurisdiction which the law has allotted to them should be preserved, unless the legislature has given clear indi- cation of a contrary intention. It is within the power of the legislature, if it thinks fit, to make the Arbitration Court the sole judge of the extent of its own jurisdiction, but for the reasons given by the Chief Justice it is perfectly clear, on reading the Act, that the legislature has indicated no intention to give the Court such unlimited power. There is another view which makes it impossible to say that the jurisdiction of the Supreme Court to prohibit was taken away. The rule is clearly expressed by Sir @. Jessel, MLR., in Jacobs v. Brett, L.R. 20 Eq., at p. 6,in these words: "Tn the next place, I think nothing is better settled than that ai Act of Parliament which takes away the jurisdiction of a superior Court of law must be expressed in clear terms. I do not mean y that it me 'y implication as well as by exp! , but, at all events, it must be done clearly. It isn to be assumed that the legislature intends to destroy the jurisdic tion of a superior Court. You must find the intention not merel; implied, but necessarily implied. There is another princip! which is that the general rights of the Queen's subjects not hastily to be assumed to be interfered with and tal away by Acts of Parliament." He then refers to a case on same subject, and proceeds: " Now here the subject has a rij and it is a valuable right, of having the question of the juri

tion of a local Court determined in the superior Court, and is it to H.C. or A. be assumed that that right was to be taken away, and that he was a to be compelled to submit the question of jurisdiction to the © inferior Court itself? I think that is very unlikely." Ido not know of any legislation in which the community generally are more concerned than this, and it is the right of every person to call

attention to the fact that any Court is exceeding its jurisdiction. = It would be entirely contrary to these well established rules of ee ae interpretation to hold that this Act has taken away the right of Pxesipest the Supreme Court to interfere by prohibition. I am clearly of srainnasnlty _ opinion that this right has not been taken away. I do not think

that the respondents' argument is strengthened hy the words of nioy, N sec. 32 referred to by Mr. Piddington, simply because that section

__ uses words that are not found in other Acts. All such words must

be read as applying only to matters which are within the juris-

diction of the Court. In the case of the Caterers' Association

. (1903), 3 S.R. (N.S.W.), 19, the law was laid down correctly.

As regards the main matter Iam of opinion that the jurisdiction

_ of the Arbitration Court cannot be invoked to enforce an agree-

ment unless that agreement comes within the meaning of sec. 13.

'These industrial Unions are under see. 7 made corporations, and

_ they have as large powers of agreement as other corporations.

It is not necessary for me to say how far these powers are affected by the Act. It is clear that if they seek the help of

the Arbitration Court they must bring themselves within the

_ provisions of the Act. Whether it is sought to enforce an agree-

ment or an award of the Court the same considerations arise.

_ The whole question is narrowed down to this, is the matter in dispute an "industrial matter" or not? The section defining 'industrial agreements" must be read in the sense that every

_ Stipulation in the agreement must refer only to "industrial matters." It was contended by Mr. Holman for the respondents

that so long as part of the subject matter of an agreement dealt

with industrial matters, the agreement was an industrial agree-

ment, even if other parts of it dealt with matters that were not industrial. I do not think that that is a correct interpretation of

the Act. To hold that it was would be to hand over to the parties hemselves power to give jurisdiction to the Court over matters

At a glance

Court

Decision date

Source

Judgment (224 paragraphs)