'DeAngelis v DeAngelis

'DeAngelis v DeAngelis - [1926] HCA 6 - HCA 1926 case summary — Zoe

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withdrawn from the State Parliaments, and therefore belongs to the State Parliaments, which are the competent authority for the enactment of such legislation within the meaning of art. 405 of the Treaty of Versailles. The Forty-four Hours Week Act is an Act for establishing by direct statute a desired standard ; and it is not solely a law for the settlement of industrial disputes whether confined to New South Wales or extending to Australia. There is no inconsistency between it and the Commonwealth Conciliation and Arbitration Act. Sec. 12, being limited to cases where the Commonwealth law has prescribed maximum hours of work for the actual disputants, is not inconsistent with the award, because such of the disputants as ate in New South Wales can obey both Act and award, and because the particular award in this case does not cover the whole field of the regulation of hours but leaves open for agreement or for State legislation the establishment of a fixed working week or a shorter working week. Sec. 13, being limited to cases where a Federal award has prescribed a minimum rate of wages, is not inconsistent with any law of the Commonwealth, for the same reason. Sees. 12 and 13 must be read together and with the other sections of Part III. to discover the intention of the enactment. Sec. 12 is not superfluous but it is necessary to form a basis for the operation of secs. 13 and 14. Sec. 13 does not entitle an employee to wages in respect of time which he has not worked, but its effect is to increase the minimum rate of wages in order to make up for the decrease in the maximum hours. The provision in clause 13 (e) of the award, providing that an employee not attending for duty is to lose his pay for the time of non-attendance, refers to an employee who does not come to work and not to an employee who leaves work before he should. In clause 3 (a) the words " recognized standard hours for the general body of employees " mean recognized in a particular industrial undertaking and not necessarily standard hours recognized as such throughout Australia. The State Act has the effect of making a new wage in addition to that payable under the award, the new wage being recoverable under the State Act. If either of the propositions laid down in Whybrow's Case (1) - namely, that a Federal award cannot be made which is inconsistent with a State (1) (1910) 10 C.L.R. 266,

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depend on the terms of the award itself and the interdependence, if any, which the award establishes between their reciprocal rights and obligations; but the scheme of the two sections is this: they - assume the validity of the awards with which they purport to deal, and assuming their validity proceed to impose upon the parties terms other than, and it may be wholly inconsistent with, those prescribed in the award. They prescribe a 44 hours week in every case, and they direct that, whatever may be the prescription of the award, if the employee in fact works more than 44 hours a week he shall be paid, not only the rate of wage prescribed a by the award for such period, but a further sum sufficient to make his total wage as great for 44 hours as it would have been under the award for the term actually worked up to 48 hours, and in addition overtime payment at the rate prescribed by the award for any further working time up to 48 hours. To do this is to put an end to the settlement made by the award, and may therefore be an invasion of the domain of the Commonwealth Legislature. It may well be said that the State Legislature has not really attempted to regulate the rights and obligations of citizens of New South Wales as such, but has attempted to free from the obligation of the award such of the parties as are within its own territorial jurisdiction and so has substantially altered the award. It is unnecessary to rest our decision on this view ; for, even if this field of legislation be open both to the Commonwealth and to the State Legislatures, the question of inconsistency between their enactments at once arises. Whatever limitations may be placed upon the power of the Parliament of the Commonwealth under sec. 51 (xxxv.) of the Constitution, it is clear that it can authorize its arbitrator to make a settlement of a dispute extending beyond the limits of any one State on any terms not inconsistent with the law of the Commonwealth or of a State. In our opinion it can also authorize him to fix a term for the existence of a lawful award, and can itself give validity to his award during such term. The phrase "the settlement of industrial disputes" necessarily implies an adjustment of the questions in dispute between the parties as complete and as permanent as the arbitrator may consider necessary. The power contained in sec. 51 (xxxv.) of the Constitution was

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the distinction. Not attending for duty means simply being absent duty, and a person who ought to work two hours fails to attend or duty during the second hour just as clearly if he goes away on expiration of the first hour as if he never came at all. The respondent's claim consequently fails so far as it is founded solely on the award. But then it is contended that the claim on the award may be ipheld when effect is given to sec. 6 of the Act. That section is a al and undiscriminating section applying to " hours in industries erally," which is the heading to Part II. Since it applies to all "" apart from coal mining and shipping beyond the mits of a port, to which the Principal Act applies, it includes the ering industry, and, therefore, in so far as it directly prescribes maximum working hours, it applies to this case, unless something ke prevents that application. I find nothing in the Act itself to ude such application. Indeed, sec. 4 extends its provisions to the Crown, and that, on the authority of Pirrie v. McFarlane includes the King in right of the Commonwealth. Consequently, mmonwealth industries in New South Wales are equally subject the direct prescriptions of sec. 6, as well as to those of secs. 13 14, Sec. 6 does two distinct things : first, it directly prescribes jum hours and some other conditions ; next, it gives directions to present and future State awards and industrial agreements. tis true that Part III. expressly mentions Commonwealth awards, makes some of them the basis of its directions. But I agree Mr. Piddington's construction, and, I think, Mr. Flannery's onstruction, of that Part, that it does not expressly purport to affect the award itself or the parties' rights under the award itself. lt proceeds to alter the personal rights and obligations of the parties, ot under the award, as I read the Act, but in respect of their actual cing relations. In doing that, however, the Act does unmistak- bly deal with the same working relations as does the award, that is, ues on the same field even though independently. It purports ite, even though independently, a new legal relation in respect

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hiring. Sec. 12 then qualifies sec. 6 by restricting the statutory directions to the weekly basis, or, in other words, cutting out the other possibilities. Sec. 12 is to all intents and purposes a proviso to sec. 6 for the purposes of the particular case described. The one direction is given, an ordinary 44 hour week is substituted for the ordinary 48 hour week, and no elasticity as to 14, 21 or 28 days is allowed. In all other cases of Federal awards - for instance, where 44 hours are prescribed, which would be the case here in certain circumstances, having regard to clause 3 (a), second proviso - neither sec, 12 nor sec. 13 applies. But sec. 6 would apply. Even as to this award and treating the matter as one of legislative intention, I see no reason for attributing to the New South Wales Parliament the intention to exclude in all circumstances the humane provision in sec. 6 (1) (b) as to employees working in a heated and exhausting temperature. On the contrary, the general tenor of the Act is to apply its provisions as broadly as possible ; and this its actual language does. There is not a syllable which expressly or by interpretation cuts down the generality of sec. 6. That can only be done by a conjecture which, in my opinion, is not only inadmissible but is, as I have said, opposed to the manifest general tenor of the enactment. I apprehend that sec. 6 is intended primarily to cover all industrial occupations in New South Wales with the exceptions stated in the section, limited only by such qualifications as are found elsewhere, as in sec. 12 for example. Its direct operation as to hours is not based on the present or past existence of any dispute, or of any award, but rests on general public policy for New South Wales. Consequently, if sec. 12 is valid it applies, if it is not valid sec. 6 applies, and that is expressly provided for in sec. 1 (3) of the Act. Sec. 6 is manifestly separable from secs. 12 and 13. If, then, sec. 6 is to be regarded as valid and operative in respect of those rights and obligations, it altered the ordinary hours of the respondent by reducing them to 44. In that case the deduction of 9s 4d. for not attending for duty was unjustified, since it was not his "duty" to attend more than 44 hours, except for overtime pay, which was not intended. If sec. 6 could be maintained as a binding legislative direction notwithstanding the legislative direction arising from the award, I should be of opinion the respondent ought to succeed :

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repeated by Grifith C.J. in Cullis v. Ahern (1) with the concurrence of my brother Powers and myself. It is the principle adopted by the Privy Council with reference to the Canadian Constitution in such cases as Grand Trunk Railway Co. of Canada v. Attorney-General of Canada (2), to-which I shall refer later. It stands on the basis of natural common sense and does not depend necessarily on express words (see Story on the Constitution, vol. 11., sec. 1837). If such a position as I have postulated be in fact established, the inconsistency is demonstrated, not by comparison of detailed provisions, but by the mere existence of the two sets of provisions. Where that wholesale inconsistency does not occur, but the field is partly open, then it is necessary to inquire further and possibly to examine and contrast particular provisions. If one enactment makes or acts upon as lawful that which the other makes unlawful, or if one enactment makes unlawful that which the other makes or acts upon as lawful, the two are to that extent inconsistent. It is plain that it may be quite possible to obey both simply by not doing what is declared by either to be unlawful and yet there is palpable inconsistency. In the present case there is inconsistency in both of the senses I have described. Mr. Dizon thought it unnecessary to go beyond the intrinsic effect of secs. 12 and 13, which, as he rightly contends, necessarily involves inconsistency since it operates only where the award provides one sum as the minimum and the Act proceeds to declare another in relation to the very subject matter dealt with by the award. The argument, to my mind, is unanswerable as to those sections. There is manifest inconsistency from the standpoint of totality dependent, however, entirely on the view taken as to the effect of establishing a minimum wage or maximum hours. But in view of sec. 6, as I have stated it, I do not agree that it is therefore unnecessary to go further. Both for that reason and because the issue is so generally important I shall examine it more closely on principle and also from the aspect of internal or detailed inconsistency. In the first place, the Commonwealth Act not only empowers its tribunal to settle an inter-State dispute, but by secs. 23, 24, 25, 28 and 29 indicates its intention that, however extensive the dispute may be, the Arbitration Court is to investigate and decide it and (1) (1914) 18 C.L.R, 540, at p, 543. (2) (1907) A.C. 65.

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regulator of their conduct." That, I may pause to observe, is applicable to the citizens of a State as such, as well as to the citizens of the Commonwealth as such, and would include a State arbitration law. Then the learned author proceeds : - " If a number of political societies enter into a larger political society, the laws which the latter may enact, pursuant to the powers entrusted to it by its constitution, must necessarily be supreme over those societies and the individuals of whom they are composed. It would otherwise be a mere treaty, dependent upon the good faith of the parties, and not a government, which is only another name for political power and supremacy." Those observations are, I consider, a complete answer to the view that the State's power in respect of its own citizens remains unimpaired by the exercise of Commonwealth legislative power under pl. xxxv. of sec. 51. There is a very strong analogy in the rule laid down for Canada by the Privy Council, which is expressed by Lord Dunedin for the Privy Council in Grand Trunk Railway Co. of Canada v. Attorney-General of Canada (1) in these words: "First, . . . there can be a domain in which provincial and Dominion legislation may overlap, in which case neither legislation will be ultra vires, if the field is clear; and, secondly, . . . 4f the field is not clear, and in such a domain the two legislations meet, then the Dominion legislation must prevail." One argument should be specially noticed. It was that, assuming the rule established by an award was "a law," still there could not be an " industrial dispute " as to any matter definitely provided for by State law. If, for instance, New South Wales and Victoria enacted that certain work should be done by piece-work only and New South Wales fixed that piece-work at 10s. and Victoria fixed it at 9s., there could be no inter-State "industrial dispute" involving those States to have the work done by time or to make the price 11s. So as to hours, wages, and all other conditions. The argument was quite frank and clear. It was that, however real in point of fact an industrial dispute might be, however widespread a strike or lock-out, though there was a total cessation of the industry with general loss and consequent suffering, the law must shut its eyes to it all, if only State laws stand in the way of the redress of grievances. As this is only the

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No doubt the Commonwealth award must be taken to have settled the dispute between this Union and its members and the employers cited. But it was only the concrete dispute that it settled, within the limits of the claims ; it did not express necessarily any will or ideal or scheme of either Federal Parliament or Court ; it did not diminish the powers of the State Legislature, although the result of the exercise of the powers of the State may be affected. There is, of course, no inconsistency in themselves between the Act of the State as to hours and the Act of the Commonwealth giving power to the Court to settle disputes. The mere fact that in the exercise of the respective powers by State and Commonwealth, or by State and Court, the direction given might collide is not enough. There must be actual collision in fact, or both directions stand. The settling of a dispute, e.g., by an agreement which, if and when filed, becomes an award, does not relieve the State of its duty to its people, even to those people who are under the award. It may take higher ground, and decide that all its workers shall have at the least a clear 8 hours day and a half holiday on Saturday ; it may give something which the award did not give, but it cannot take away what the award gave. The State Legislature has power to make laws as to labour for people within the State; if it cannot make a law as to labour and hours, no other Legislature can. The Commonwealth Parliament cannot make such a law; it can only create a tribunal that can make it in a concrete dispute on the particular subject ; and, unless to the extent of any actual incon- sistency between the laws as to the same persons or things, the State Act must be obeyed, however obnoxious. Under the New South Wales Constitution Act 1902, sec. 5, " the Legislature shall, subject to the provisions of the Commonwealth of Australia Constitution Act, have power to make laws for the peace, welfare, and good government of New South Wales in all cases whatsoever." The parties to the award are bound by it (Conciliation Act, sec. 29); but the State Legislature is not bound by it - except in this way, that if and so far as its law contradicts the Commonwealth law, the Commonwealth

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Case (1). According to Griffith C.J. (2) "the test of inconsistency is, of course, whether a proposed act is consistent with obedience to both directions" ; and see per O'Connor J. (3), Isaacs J. (4), Higgins J. (5). So Whybrow's Case (6) and Attorney-General for Queensland v. Attorney-General for the Commonwealth (7). As Isaacs J. pointed out in the latter case, " inconsistency," " repugnancy," " contrariety " are "interchangeable terms'; and "an adverse or inimical tendency " is not enough. Personally I examined, in that case, the meaning of "repugnant" used in the Colonial Laws Validity Act (8), and I adhere to that meaning on full consideration. In the Federated Engine-Drivers' Case (9) Knox C.J., Gavan Duffy and Starke JJ. followed, without reconsidering, Whybrow's Case, so far as it decided that the Federal Conciliation Court could not make an award inconsistent with State law; but I do not understand them as doubting the doctrine that there is no inconsistency when it is possible to obey each without disobeying either: and see Amalgamated Society of Engineers v. Adelaide Steamship Co. (10). I understand that this last case is regarded as overruling Whybrow's Case; but Whybrow's Case is not even referred to in it. So far as the doctrine of inconsistency is concerned - that where the two laws can be obeyed at the same time there is no inconsistency

Whybrow's Case was accepted as law in Waterside Workers' Federation v. Commonwealth Steamship Owners' Association (11). Again, in Federated Seamen's Union v. Commonwealth Steamship Owners' Association (12), Isaacs, Higgins and Starke JJ., having construed a clause in the Navigation Act as imposing a duty to pay wages not less frequently than once a month, said that the parties might agree, or an award direct, that wages be paid fortnightly ; and that the Navigation Act having prescribed that three-quarters of the wages be paid within 24 hours after arrival, the Arbitration Court could prescribe that one-half should be paid within 4 hours after arrival. As my brother Isaacs said (13) : - '' But while that certain

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therefore, clear from the decisions of the Court referred to in 1910, one in 1920 and one in 1922) that, if 9s. a day is ved by a State law as a minimum wage and 10s. a day by a al award as a minimum wage, they are not inconsistent laws | both can be obeyed, because the payment of a minimum wage required by the State Act is obeyed by paying 10s. under the i award. In the same way, if a State law fixes 10s. a day minimum wage and the Federal award fixes 9s. a day as a imum wage (Federated Engine-Drivers' Case (2) ), they are not istent laws and both can be obeyed by paying 10s. minimum nder the State Act. That being the case, if the State Act in tion only adds one-eleventh to the Federal minimum rate instead of 11s.), how can it be held to be inconsistent with Federal award in question, as both orders can be obeyed by g12s.? The test usually adopted by this and other Courts s whether both laws can be obeyed. is not, therefore, inconsistent with a Federal award for a State ict or State award or State Wages Board to order employers bound Federal award fixing a minimum wage only, to fix - by a State ity or a State Act - a lower or a higher minimum wage than by a Federal award. That is all the State Act, in my opinion, for, notwithstanding anything contained in the New South State Act, the employer has to pay the minimum wage fixed y the Federal award and the minimum overtime rate fixed by the d if the employee works for more than 48 hours. The employer and must also observe all the conditions of the award that are sory; so that the two laws are consistent to the extent that oth can be obeyed. It is true that the employer is required to pay, State Act and under the State law (not the award), something ition to the minimum rate fixed by the award - equal to venth of the Federal rate. Such an addition to the Federal ite by a State law has been held in the cases quoted not to be iconsistent with the Federal law. The employer is therefore liable the State Act to pay a sum (in this case of 9s. 4d.) in addition (1) (1922) 30 C.L.R, 144, (2) (1920) 28 C.L.R. 1.

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solve the difficulty. If, as I think, that term connotes a settlement of differences in any way in which the parties themselves could settle them, it follows that whatever the parties could lawfully agree to do the arbitral tribunal may order them to do. Whatever view is taken of the intention of the State legislatures, it is plain that they have not forbidden employers to pay more than the minimum wage prescribed by the Wages Boards, or to agree with each other or with their employees that they will not pay less than a sum which is greater than that minimum. It follows that the proposed award is not in this respect inconsistent with any of the determina- tions in question, or the statutes which gave them the force of law." Barton J. said (1) : - ' The second question is whether the proposed award, annexed to the case stated by my learned brother the President, would in any of its parts be inconsistent with the determinations of the State Wages Boards. I have already stated the sense in which I understand the word 'inconsistent.' It may be of advantage to elucidate it further by a passage in the judgment of Lord Blackburn in the case of Garnett v. Bradley (2) : - There is one rule, a rule of common sense, which is found constantly laid down in these authorities to which I have referred, namely, that when the new enactment is couched in general affirmative language and the previous law, whether a law of custom or not, can well stand with it, for the language used is all in the affirmative, there is nothing to say that the previous law shall be repealed, and therefore the old and the new laws may stand together. There the general affirmative words of the new law would not of themselves repeal the old. But when the new affirmative words are, as was said in Stradling v. Morgan (3), such as by their necessity to import a contradiction, that is to say, where one can see that it must have been intended that the two should be in conflict, the two could not stand together ; the second repeals the first.' The determinations of the Wages Boards and the proposed award are couched in the affirmative in respect of the material part of each, the provision as to the minimum wage. None of them prescribe an inflexible rate. The determinations name a minimum, and it is in each case lower

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