Federated Saw Mill, Timber Yard, and General Woodworkers Employes'... [1909] HCA 43 | Case summary

Federated Saw Mill, Timber Yard, and General Woodworkers Employes'... [1909] HCA 43 | Case summary | Zoe

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mills and timber yards in Western Australia; but it has not been H.C. oe A. shown that any member of the claimant organization is employed es by the company in its timber yards. The company has in Frperarep Melbourne a timber yard to which it sends timber the product Sor ee of its bush mills in Western Australia; the Melbourne business nase is under the control of the local board in Western Australia ; and Jaw 188 MOORE the company employs in its said timber yard members of the prorrrerary organization. At the filing of the plaint, the company carried on = in Queensland bush mills and a timber yard, but it has not been shown that it sends there timber of the product of its bush mills in Western Australia, or that any member of the claimant organ- ization is employed in the bush mills in Queensland. In the case of the said company does the dispute extend beyond the limits of any one State - (a) Within the meaning of section 51 (xxxv.) of the Con- stitution 7 (b) Within the meaning of section 4 of the Act? (c) Has this Court power to make an award applicable to this company, and to what extent ? "5, There is an award of the late New South Wales Arbitration Court, made on 12th May 1908, coming into operation on 16th June 1908, and expiring on 16th June 1911, and made between the New South Wales branch of the claimant organization and certain of the New South Wales respondents (inter alios). Has this Court power to make any enforceable award incon- sistent with the New South Wales award, either to operate immediately or to operate on the expiration of the New South Wales award 7 "5a. There isa determination of the Woodworkers' Board (duly made under the provisions of the Factories and Shops Acts of Victoria) dated 20th February 1908, and duly published in the Victorian Government Gazette of 3rd March 1908 - which deter- mines certain conditions of employment and the lowest prices and rates of wages to be paid in respect of certain of the persons or classes of persons employed in Melbourne by (amongst others) the respondents, James Moore & Sons Proprietary Ltd. and Millar's Karri and Jarrah Timber Co. (1902) Ltd. which are described in the plaint -

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of the Constitution only applies to regulations of trade, commerce or revenue. No preference is given, nor is any intended, by awarding higher wages in one part of the Commonwealth. As to the third question, there being one dispute, there are persons who are members of the claimant association employed in timber yards, and that gives the Court power to make an award as to timber yards wherever they are. Once there is a dispute extend- ing beyond one State, the boundaries of the States may be disregarded. 'Then, if within the whole area of the dispute there are members of the association employed in timber yards, an award can be made in respect of all timber yards in the area, As to South Australia, where there are no bush mills, the demand is as to wages in respect of certain classes of operatives, and if some of those operatives are employed by any of the respondents in South Australia, an award can be made in respect of that class of operatives there. [He referred to Coastal District Committee Amalgamated Society of Engineers Industrial Asso- ciation of Workers v. Millar's Kurri and Jarrah Co. (1); In re Pitman (2).) As to the fourth question, the business carried on by Millar's Karri and Jarrah Co. (1902) Ltd. in Western Australia and in Melbourne is one business, and the Court can make an award in respect of all employés of the company: R. v. Commonwealth Court of Conciliation and Arbitration ; Ex parte Broken Hill Proprietary Co. Ltd. (3). The facts stated do not prevent the dispute from being one extending beyond one State. As to the fifth question the Commonwealth Court of Conciliation and Arbitration has power to make any award it pleases whether or not it is inconsistent with an award under a State law. Under sec. 51 (xxxv.) of the Constitution there is power to make an award in the case of a dispute extending beyond the limits of one State. If that circum stance exists, the power is absolute. Under the New South Wales Industrial Arbitration Act 1901, an award is binding on the parties and is the law of the land. See sees. 35, 37, 39. If that award is inconsistent with an award of the Common- wealth Court, the latter, which is a law of the Commonwealth,

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Janmg Moone ways: it must be exercised for the prevention and settlement of = es disputes, and the disputes must extend beyond the limits of one Ltp. State. These limitations must be interpreted in the same broad way as the power itself: Kansas vy. Colorado (1). If the views contended for by the claimants are right, the limitation that the dispute must extend beyond the limits of one State might for all practical purposes have been omitted. For if in one State there were an award of a Court of the State, either party dissatisfied with it might, by bringing in a party in another State, have an appeal to the Commonwealth Court. There must be some point at which it can be said that a dispute is not one extending beyond the limits of one State, and that point is reached when in a dispute in an industry not in its nature Inter-State, on one side or the other, the parties, either employers or employés, are absolutely independent and not acting in concert in the dispute. There is no other logical halting place which will not in reality turn this provision in the Constitution from one for allaying existing disputes to one for provoking disputes. The intention was that the Commonwealth Parliament should have power to deal with disputes with which the States alone could not deal, and not to secure uniformity of wages and conditions of employment through- out the Commonwealth. The meaning of "a dispute extending beyond the limits of any one State" is the same whether it is the prevention or the settlement of it which is being considered. So that a dispute with which the Commonwealth Parliament can deal is one of which it can be predicated before it comes into existence that it will be a dispute extending beyond the limits of one State: Jwmbunna Coal Mines, No Liability v. Victorian Coul Miners' Association (2). According to the view put forward for the claimants, every dispute is one that can extend beyond the limits of one State. A demand on one side and a refusal to comply with it on the other do not constitute a dispute.

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ciliation and Arbitration Act 1904 does not authorize the Court Sey to add a party who was not a party to the industrial dispute. AUSTRATASIA Jaates MooRE Irvine K.C. (with him Wantliss), for Millar's Karri and Jarrah Dee Co. (1902) Ltd. As to the third question, when the Constitution 1": was enacted in 1900 the words "conciliation and arbitration for the prevention and settlement of disputes" had a fairly definite and legal meaning. The word "arbitration" can only be applied to the settlement of disputes, though conciliation may apply to both prevention and settlement. Conciliation is in its very nature non-compulsory. Arbitration for the settlement of disputes involves the existence of definite parties and definite issues relat- ing to the conditions of employment of the parties who are employed: Collins v. Collins (1). The words would involve the recognition of conflicting bodies who might be parties to disputes. The settlement of a trade dispute is not necessarily limited to persons in the actual employment of the employers at the time. But although it may involve a conflicting body of disputants, there must be definite issues which relate to the conditions of employment by the disputing employers of the members of the disputing association. A general disturbance was in one sense intended to be affected by sec. 51 (xxxv.) of the Constitution, but suppose there are disturbances over several States, the power given is limited to appointing arbitrators whose duty it is to ascertain what are the disputes and between whom, and then to settle the disputes between the persons who are engaged in them. Assuming there is a union of employés over several States which has a dispute with employers in several States, but that a number of men who are qualified to be members of it are not members and therefore make no demand, and that those who are not members are perfectly satisfied with their employment, can the Commonwealth Parliament invest a Court with power not only to settle the dispute between the union and the employers, but also to deal with the conditions of labour of those who are not dissatis-

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shall or shall not get what it asks. The power given by sec. 51 (xxxv.) of the Constitution is given so that disputes extending Feprratep OVer an area greater than one State may be settled by a tribunal be tee having paramount authority, and it should not be trammelled AUSTRAL by the fact that there are State laws dealing with disputes in James Moor States, 'There is no suggestion in sec. 51 (xxxv.) that arbitration Laan should be barred by limitations which local authorities have ey imposed. If it were so,a local State authority could prevent any dispute extending beyond other States into that State. If an agreement as to the rate of wages is inconsistent with the award which the Commonwealth Court is authorized to make, that agreement goes. There is no estoppel here, because the parties who are bound by the State award are not the same persons as those who are claimants in this case. That applies to the fifth, sixth and seventh questions. As to the seventh question, the agreement goes. Whether any of the parties will have rights for breach of agreements or not is immaterial now. It does not affect the universality of the law. If it be necessary to inquire exactly what solidarity of parties is necessary to constitute an industrial dispute, it is at most confined to the party making the dispute, and it is entirely beside the question to investigate what union there need be between the persons on whom the dispute is sought to be fixed. In dealing with the meaning of an industrial dispute it is an error to start from what is a legal dispute, namely, a dispute in which there is one cause of dispute on both sides. That can happen in no industrial dispute. In law every man who asks for higher wages has a distinct dispute with his em- ployer. Assuming an industrial dispute to be established by the parties on one side joining together and using their joint efforts to enforce the demands of each, how does it affect the matter that the parties on the other side do not join together? The dispute must be really a general dispute, and that is a question of fact. The mere fact of making one paper demand is not sufli- cient to constitute an industrial dispute. (GrirrirH C.J. - The parties who are attacked must at least know that there is a general dispute.

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question arising in any proceeding which, in his opinion, is & Fxpgratep Saw Mart &e. question of law. eS The applicants are an organization registered under the Act. - - _ - 'The respondents are thirteen companies and firms engaged in what ass Moons I will for convenience call the timber trade in five of the States proparerary of the Commonwealth - in which we are told that there are some 4". hundreds of similar firms and companies. Some of the respondents Griffith 0.3. have timber yards, in which, as I understand, they carry on the business of dealing with log timber, whether Australian or imported, cutting it up into planks and boards, and sometimes manufacturing it into doors and window sashes, which may or may not be also fitted with glass. Others of the respondents are engaged in what is called in America the lumber trade, i.c., felling timber in the forests, cutting it into logs or railway sleepers or ties, and sending the logs or sleepers to market in Australia or abroad. Some of them are engaged in both trades. The complainants are an organization representing operatives engaged in both trades, and they ask that a common "log" or schedule of wages with other conditions of labour may be adopted with respect to both these trades throughout the five States, but that in Western Australia the rates of wages paid should be higher by 15 per cent. than elsewhere. The questions submitted in the case are to a great extent of an abstract character. In my judgment the provisions of see. 31 were not intended to allow the submission of hypothetical or abstract questions of law which may never arise for actual decision. Any opinions expressed by the Court on such questions can only be obiter dicta. of more or less weight, but having no binding authority. And I regret to have to say thatin my judg- ment most, if not all, of the questions which have been so labori- ously and exhaustively discussed before us are of that character. I was reminded during the course of the argument of I?' Naghten's Case (1), in which the Judges, much against their will, were asked to express an opinion upon questions of law not necessary for the decision of an actual case.

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discerned and considered : - (1) What was the common law before H- ©. or A. the making of the Act. (2) What was the mischief and defect 1%) for which the common law did not provide. (8) What remedy prpsraren the Parliament hath resolved and appointed to cure the disease of $4 Mu &e- the Commonwealth, and (4) The true reason of the remedy ; and Be then the office of all the Judges is always to make such construc- Jamzs Moone tion as shall suppress the mischief, and advance the remedy, and ae Aa to suppress subtle inventions and evasions for continuance of the pee) mischief, and pro privato commodo, and to add force and life to crititn cs the cure and remedy, according to the true intent of the makers of the Act, pro bono publico." Before the establishment of the Commonwealth "industrial disputes" (as to the meaning of which term I shall have more to say) had occasionally arisen in the different Colonies, and in two of them (New South Wales and South Australia) tentative legislation had keen passed for the purpose of dealing with them by conciliation and arbitration. A similar law had been passed in the neighbouring Colony of New Zealand. Tentative efforts had been also made in the United Kingdom to deal with the same subject. Each Colony had absolute power to deal with the matter within its own limits, but in the event of a single dispute covering an area not within the bounds of any one Colony, there was no legislative authority (except the Parliament of the United Kingdom) which could have dealt with it. This was the state of the law, and this was the defect. The remedy was to authorize the Commonwealth Parlia- ment to make laws for dealing with such disputes, not in any way they might think desirable, but by conciliation and arbitra- tion for their prevention and settlement. It is necessary at the outset to consider the meaning which the term "industrial dispute " conveyed in 1900 to the minds of per- sons conversant with the English language. It may be that the words have since been used in a larger sense, or that an artificial sense has been attributed to them by Statute (e.g., the English Act of 1906), but this is not relevant to the present inquiry. In the Jumbunna Case (1), the meaning of the term was discussed as far as was necessary for the decision of the questions then before the Court. I used the following language (2): -

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disputes we are concerned with real facts, not words or word- H- ee ea spinning. pci No doubt, the term "industrial dispute" might be used, and Peprravep had been used, in a wider sense, but the words "extending, ete.," Sy show that it is not so used in the Constitution. If it had been boas? so intended, the power in question might have been expressed as Tantes Moone a power to facilitate the creation of industrial disputes, and to ppormirary promote the extension of such disputes beyond the limits of any - _™- one State with a view to their settlement by federal authority. crimtn o.. If, therefore, there is in fact no real discontent existing, a mere claim or request made by an employer or on behalf of a body of employés, without any intention of pressing it, but for the mere purpose of making a case to be brought before the federal arbitration authority, does not constitute a real industrial dispute. It is, rather, an attempt to promote strife and a fraud upon the tribunal. (3) A dispute between A. and B. as to their respective obliga- tions under an admitted agreement is not an industrial dispute within the meaning of the Constitution. The term "industrial dispute" may be, and has been, used in that sense in Statutes which so defined it, but that fact is quite irrelevant. Such a dispute can be settled by the ordinary State tribunals. (4) A refusal by A. or B. to perform an admitted agreement, the interpretation of which is not in question, is not an industrial dispute. (5) For the reasons given in (1) a general refusal to obey a law relating to industrial matters is not and cannot be an element of an industrial dispute. Nor can discontent with such a law and a desire to be freed from its obligations be an element of an industrial dispute. If the term is capable of having such an extended meaning (which has never yet been given to it), it is inconceivable that, if the framers of the Constitution intended to authorize the Parliament to abrogate a State law or absolve persons discontented with the law from their statutory obliga- tions, they should have done so by the words now under discussion. I pass now to the words "extending beyond the limits of any State."

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nature of industrial war, existing or threatened. Sporadic H. C. or A. differences confined to small localities in two or more States, even Bees if they possess all the other elements of substantial identity of Prosraren subject-matter, cannot be said to extend beyond the limits of one see ee State merely because the parties to the differences in the several SORE States combine in making a request in identical terms to their Janes Moone respective employers. Pan. cee (13) There must be real community of action on the part of Lr. the demandants, and some community of action on the part of Grimtn c.. the parties on whom the demand is made. Such community need not be formulated in any written document, nor need the parties who are acting together be bound by any formal agree- ment. If it is found that large bodies of men in two or more States are in fact acting with one accord, then, if the other elements of an industrial dispute are present, an occasion arises for the exercise of the federal power in question. (14) The dispute must be actually existing and actually extending beyond the limits of one State before such an occasion can arise. Mere mischief-makers cannot, therefore, by the ex- penditure of a few shillings in paper, ink, and postage stamps create such an occasion. It is almost - I should think quite - impossible that such a state of industrial war as amounts to a real industrial dispute extending beyond the limits of a State can exist without its existence being known to the persons engaged in the branch of industry affected. In such a ease it is immaterial whether the parties on whom the demand is made do or do not combine for the purpose of resisting the attack. But in the case of a mere paper demand, where industrial operations go on as usual, evidence of some combination or preconcert in resisting it may be necessary. It would be a singular thing if a joint demand made by associated bodies of men employed, say, at Perth and Brisbane respectively on each of two employers who are engaged in the same branch of industry in those cities, but are unknown to one another and have nothing else in common, could be regarded as an industrial dispute extending beyond the State of Western Australia to Queensland or beyond Queensland to Western Australia.

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prescribing conditions to be observed in future contracts of H- Css a employment, the tribunal is no less a tribunal. Tomy mind the obligation to decide in accordance with law is implied in the Feprrarep notion of the creation of a tribunal. Otherwise the members of $4" Mint &o- the tribunal would not be judicial persons at all, but dictators pareve exercising the power of legislation, not of adjudication. SEN OTS, It is gravely maintained, however, that the tribunal which the proprrerany Parliament may establish for the settlement of industrial disputes _""- is not bound by any State laws relating to domestic trade, and Gritith ov. that, although the Parliament itself could not make a Jaw incon- sistent with the State law, it can under the language of pl. xxxv. authorize its creature, the tribunal of arbitration, to disregard the State law, to free persons from any obligation to obey it, and even impose penaities upon persons who do obey it, because such power is necessary for the effective settlement of industrial dis- putes. I have already pointed out that discontent with a State law cannot be described as a dispute in any sense in which that word has hitherto been used, so that a power to authorize the settlement of disputes cannot be read as a power to set aside or suspend or abrogate an obnoxious law. But, even if it could, it seems to me that, applying the rules of construction of the Con- stitution so often laid down, at best the language would be ambiguous, and that, even if the words are capable of the mean- ing asserted, it is so inconsistent with the reservation to the States of the power to regulate their domestic trade that it should be rejected. For, if conceded, it practically annuls that reserva- tion, and permits the federal tribunal to substitute its uncontrolled volition for the will of the Parliaments of the States, so soon as a political agitation for the repeal of an obnoxious law in any State is taken up by sympathizers in another State. I find it difficult to treat such an argument with due gravity. It may be necessary, in order to allay political agitation, for the legislature to repeal or alter an existing law, but it cannot be said to be necessary that a tribunal appointed to settle disputes by arbitration should have a dispensing power authorizing it to supersede or abrogate a law or excuse obedience to it, unless, indeed, it is assumed that a dispute cannot be settled unless one

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IL. The Case next sets out that in the schedule of wages demanded by the claimant organization a claim is made for an additional 15 per cent. in Western Australia "to be added on above rates for extra cost of living,' and the question is asked whether the Court has power to make any enforceable award so far as regards the Western Australian employés. The answer to this question depends upon the actual facts. If there is a dispute within the cognizance of the Court to which the Western Australian employers are parties, it can, of course, make an award with respect to them. If not, it cannot. I am unable, without affecting an ignorance of Australian geography and Australian conditions which I do not enjoy, to pretend to think that the employés, say, in Queensland can have any such com- munity of interest with the employés in Western Australia as to make the demand for an extra 15 per cent. of wages in the latter State an identical subject-matter of dispute in both States. But if there is otherwise a dispute extending beyond a State, I do not think that the attachment to it of a special claim or claimant affecting only one State would necessarily deprive the Court of jurisdiction to deal with the dispute as far as it relates to matters in which the disputants have a real community of interest. The award cannot go beyond the limits of the dispute of which the Court has cognizance, but if there is really a dispute it can go as far as the dispute goes. Other weighty arguments were urged, based upon sec. 99 of the Constitution, which provides that "The Commonwealth shall not, by any law or regulation of trade, commerce, or revenue, give preference to one State or any part thereof over another State or any part thereof," and it was contended that an award in terms of the claim would amount to a regulation of trade and commerce giving preference to the other States as against Western Aus- tralia. But this would be an objection to the award, and does not determine the question of the jurisdiction of the Court to entertain the claim.

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between employers and employés recognized and described in ppoprrerany England and Australia as "wages disputes" or "industrial dis- 1": putes," it may be of advantage to the clearer understanding of the o'connor J. view Lam discussing if I advert briefly to the terms "conciliation" and "arbitration" as used in connection with them. For many years the majority of people in England and Australia had realized that the settlement of industrial disputes in some more humane and reasonable way than by strike or lockout, with the disturbance of industrial conditions, the bitterness, the cruel consequences to the weak and helpless, the dislocation of trade, the monetary loss to the community which those erude methods involved, was more a matter of national than of private concern. The view steadily gained ground that public tribunals should be created for the settlement of these differences as they arose. In England cautious attempts in this direction were made as early as the year 1867. The Parliament of New South Wales in 1892 passed a Statute creating tribunals of conciliation and arbitra- tion for the settlement of industrial disputes, which, however, by reason.of defects in its method of dealing with the question, became inoperative. New Zealand in 1894 initiated a system for settling industrial disputes by conciliation and arbitration - a system which has been in active operation ever since. South Australia followed in the same year with similar legislation, and, in 1896 the British Parliament enacted a Conciliation Act bring- ing into operation a method of dealing with the subject, which differed in many respects from the Australian and New Zealand systems but aimed at the same object, described in its title as "The prevention and settlement of trade disputes." Most im- portant, also, as throwing light on what must have been in the mind of the legislature, is the fact that some years before the Constitution was framed the people of Australia had seen an industrial dispute, originating in one State, grow into a serious

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citizen of a right to which that Act entitles him. Should this H.C. or A. collision exist, it will be immaterial whether those laws were Rass passed in virtue of a concurrent power 'to regulate commerce Peverared with foreign nations and among the several States,' or in virtue }4¥ Miu &e. of a power to regulate their domestic trade and police. In one 4 ASIA ease and the other the Acts of" (the State) "must yield to the Jamxs Moone Jaw of Congress ; and the decision sustaining the privilege they Panay confer, against a right given by a law union, must be erroneous. - _"- "This opinion has been frequently expressed in this Court, and _tsases J. is founded, as well on the nature of the government as on the words of the Constitution. In argument, however, it has been contended, that if the law passed by a State, in the exercise of its acknowledged sovereignty, comes into conflict with a law passed by Congress in pursuance of the Constitution, they affect the sub- ject, and each other, like equal opposing powers. "But the framers of our Constitution foresaw this state of things, and provided for it, by declaring the supremacy not only of itself, but of the laws made in pursuance of it. The nallity of any Act, inconsistent with the Constitution, is produced by the declaration, that the Constitution is the supreme law. The ap- propriate application of that part of the clause which confers the same supremacy on laws and treaties, is to such Acts of the State legislatures as do not transcend their powers, but, though enacted in the execution of acknowledged State powers, interfere with, or are contrary to the laws of Congress, made in pursuance of the Constitution, or some treaty made under the authority of the United States. In every such case, the Act of Congress, or the treaty, is supreme; and the law of the State, though enacted in the exercise of powers not controverted, must yield to it." This view has been sustained in various cases, among which may be mentioned Western Union Telegraph Co. v. Pendleton (1), where Field J. stated the same principle in equally distinct language ; Asbell v. Kansas (2). But there is for us even more authoritative opinion than that I have just quoted ; and there are instances that appear to me to be almost on all fours with the present case. Under the Canadian Constitution, sec. 92, sub-sec. 13, the Provinces have exclusive

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quent State law must prevail. It cannot be that the governing H- Ta A maxim is to be prior in tempore potior in jure. aes Suppose, again, the President were properly seised of an Feveraten undoubted dispute extending over the whole of two States, Say Bee evidence taken, arguments delivered, judgment reserved; before Bree award made the State Wages Board of one of the States concerned Jastzs Moone then under some power in a State Act fixes wages or hours at or Sees approaching the scale which one of the parties insisted on; the Lrp. jurisdiction of the Federal Court is to be wholly or pro tanto tsmes4. ousted, and if wholly ousted, the whole proceedings are rendered abortive, and the dispute must continue because the State Statute is supreme over the national law. The moment we depart from the clear terms of sec. 109 of the Constitution, there is nothing but chaos. That clause and covering clause V. form the keystone of the federal structure, and if they are once loosened, Australian union is but a name, and will reside chiefly in the pious aspirations for unity con- tained in the preamble to the Constitution. Sec. 109 is not found in the American Constitution - where there exists only a provision analogous to covering clause V., and upon which alone the exposition quoted from the judgment of Marshall C.J. is founded. But its additional insertion emphasizes the supremacy of Commonwealth laws, and it is a counterpart of portion of sec. 2 of the Colonial Laws Validity Act 1865 (28 & 29 Vict. c. 63), and that induces the following query. If the Federal Act were an Imperial Statute would the State Act fall within the purview of sec. 2 of the Imperial Act or would it prevail? The question of paramountcy of the Imperial Parlia- ment does not arise; because the prior assumption is that the Federal Act is a valid exercise of power but for the existence of the State Act, and the whole question is reduced to competition between the two valid Acts. If the Imperial Act under the section quoted would prevail, so must the Federal Act prevail under clause V. and sec. 109. It is needless to say that to bring sec. 109 into operation the two competing laws must meet on the same field. Of course they must. If they are not on the same field they cannot collide ; they cannot be inconsistent. They may be on the same field and

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there a dispute, will, it appears now, be more complex than these H. aa A. words would indicate. It is a question of fact, to be decided on ' all the cireumstances of the case; and I should not have been Feperarep justified in submitting the vast mass of evidence to this Court se meee and asking "is there a dispute?" Nor should I have been justified ROSES in asking this Court the abstract question, " What is a dispute?" saps Moons or "What is a dispute extending, &e?" I quite concur with the proprietary expressions of the learned Chief Justice to the effect that any 4". opinion expressed by this Court on hypothetical or abstract Higgins J. questions of law, which may never arise for actual decision, would have no binding effect. But I cannot concur in the view that the questions submitted are either abstract or hypothetical. 'They actually arose in the course of the case, and they - and many other questions which arise - have to be determined by me if not by this Full Court. Counsel for the respondents desired that I should bring these, and several other questions, before the Full Court. I refused to submit the others, as I could not ask the Court to decide them without the perusal of bulky evidence ; and, as I feared, some even of the few which I have submitted cannot be categorically answered, as they involve a consideration of the facts as well as the law. The difficulty is not that the questions are either abstract or hypothetical, but that they involve facts as well as law. Ihave not, in this my judgment, investigated the meaning of "industrial dispute." I refrained from including it, for the reasons which I have stated. But my silence must not be taken as consent to the doctrine that the short and every-day phrase " industrial disputes extending" con- notes all the elaborate qualities which the Chief Justice has suggested in his judgment. I cannot find in the Constitution any evidence of intention on the part of the British Parliament to restrict the grant of the power to the Federal Parliament within so narrow an area as that judgment indicates. In my opinion, combination on both sides is not essential ; and it does not matter whether each of the independent employers knew, or knew not, that similar demands were being made on others than himself. From the form of the demand which is set out in the case, it is clear that they must have known; but I do not rely on knowledge. The test is, does the dispute extend

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what seems virtually an appeal to the federal tribunal. It is not H. ©. or A. in truth an appeal; because there must be new parties disputing, ee and these parties must consent to concur in the dispute. But if Prpensrep we may look at the consequences of denying the power to the RAY Mut &e federal Court, the position is still graver. Deny the power, and Bali spentss if there be a shipping dispute, a bitter quarrel raging in fact in all Tams Moore the parts of the Commonwealth and throwing into confusion all Paice Ee industries, the federal Court would be powerless if each State Lr. has its separate laws as to wages, &e., of seamen, there would be _ Higgins J. no power which could settle the shipping dispute as a whole on one consistent scheme. Or if New South Wales had such laws, and the other States had not, the New South Wales laws, even if ineffective and unworkable, would prevent the effective applica- tion of the federal powers. For nothing is more prolific of indus- trial disturbance than inequalities among men doing the same work, even when the inequalities are found as between different cities. To say the least, the dangers of one interpretation may be set off against the dangers of the other interpretation ; and, honours being easy, we may fitly recur to our humbler function of finding the meaning of the words of the Constitution. Question 6. I have been rather puzzled with regard to State industrial agreements. I have not been troubled as to the power of the Federal Parliament to endow the Court of Conciliation with power to make an award inconsistent with such an agree- ment. My difficulty lay in sec. 30 of the Act (and ef. sec. 80). Parliament said, in sec. 30, that when a State law, or an award, order or determination of a State industrial authority is incon- sistent with an award or order made by the Court, the latter shall prevail; but it has said nothing about State industrial agree- ments; and an argument may be based on the lines of expressio uwnius exclusio alterius. But the reason for the omission is probably that it was not thought necessary to assert the Court's powers as against mere agreements. Compulsory arbitration - and it is admitted that Parliament could make arbitration com- pulsory, enforceable as to its tindings - necessarily interferes with agreements, interferes with what is called "freedom of contract." For instance, it compels an employer to pay more to a man whom he hires than he would agree to pay if he were free to make the

Federated Saw Mill, Timber Yard, and General Woodworkers Employes' Association of Australasia Claimants; and James Moore and Sons Pty Ltd [1909] HCA 43

At a glance

Court

Decision date

Before

Source

Judgment (625 paragraphs)

EMpLoyes oF AUSTRALASIA

Cited By (1)