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[1904] HCA 39
High Court of Australia
1904-07-01
Original judgment source is linked above.
THE SHOP ASSISTANTS UNION OF NEW SOUTH WALES, THE GROCERS ASSISTANTS UNION OF NEW SOUTH WALES, F. LAS- SETTER AND COMPANY,LIMITED, anp THE PRESIDENT AND MEM- BERS OF THE COURT OF ARBI- TRATION
ON APPEAL FROM THE SUPREME COURT OF NEW SOUTH WALES.
Industrial agreement - Agreement not to be binding unless made a common
industrial agreement a common rule - Common rule a means of enforceme ion - Prohibition.
'The Court of Arbitration has no jurisdiction to entertain an application ' the parties to an industrial agreement which has not been made an awat the Court to have the terms of the agreement declared a common rule.
'The power to declare a common rule, conferred upon the Court by of the Industrial Arbitration Act, can be exercised only with a view enforcement of an award, order, or direction,
It is, therefore, a condition precedent to the exercise of that power, tl there should be in existence an award, order, or direction, made by the Co in pursuance of a hearing or determination, upon a reference within the me ing of sec. 26, sub-secs. (a) and (b).
An agreement was made between an association of employers and | unions of employés, fixing the conditions of employment for two years fi the date of the agreement, and on the same day another agreement was m
between the same parties, providing that the former agreement should not come into force or be binding upon the parties to it, unless it should be made acommon rule. Both agreements were in writing, and were registered with the Registrar of the Court, as provided by sec. 13 of the Act. The parties then filed in the Arbitration Court, and advertised a notice of an application to have the terms of the agreement declared to be a common rule. 'This was the ordinary method of initiating proceedings in that Court for that purpose.
Held, that the Court of Arbitration had no jurisdiction to entertain the application, and that immediately after the notice any person might apply to the Supreme Court for a wtit of prohibition, to restrain the Court of Arbitra- tion trom further proceeding.
Held, farther, that the original agreement, not being inforcable against any one, was not a subsisting industrial agreement within the meaning of sec, 15.
Decision of the Supreme Court, (1904) 4 S.R. (N.S. W.), 384, reversed.
AppEaL from a decision of the Supreme Court of New South Wales, (1904) 4 S.R. (N.S.W.), 384.
The following statement of the facts is taken from the judg- ment.
On December 3rd, 1903, an industrial agreement was made be- tween the respondents F. Lassetter & Co. Ltd., of the first part, and the United Grocers' Assistants of New South Wales, an industrial union of employés, and the respondents, the Shop Assistants' Union of New South Wales, another industrial union of employés, the two latter unions being called parties of the second part. The agreement recited that the parties had met in conference, and had agreed to enter into an agreement on the terms and conditions set out in the first and second schedules, and that the agreement was to be registered under the Zndustrial Arbitration Act, 1901. The agreement went on: "it is agreed between the company and the Grocers' Assistants Union and the Shop Assistants Union that the terms conditions and regulations hereinafter set forth shall be binding as between the parties thereto for a period of two years from the date thereof." The first term of the agreement was that any person should be deemed to be a shop assistant who was engaged in any capacity in the retail reception, sale, or delivery of goods, whether in a shop, office, or warehouse, at certain trades set out in detail. The agree- ment then proceeded to precribe a complete code for the regula- tion of all these businesses. It consisted of 21 articles, and was
H.C. orA. to regulate the whole affairs of the trades mentioned in theag ene ment. It may be assumed, though it was not stated in theag Tux Masrer Ment or on the record, that Lassetter & Co. carried on all ee businesses ; otherwise they would be matters with which they of N.S.W. no concern. The agreement was registered on 4th December Tux Sor On 3rd December another agreement was made between ne a same parties, which stated: "It is agreed between the pa wS.W- AN? that the industrial agreement this day entered into be them shall not come into force or be binding on the parties th to unless such agreement shall be made a common rule, rela to the trades or businesses mentioned in the industrial agreeme That agreement was registered on 10th December, and so bees an industrial agreement. The three parties to the agreement then filed a notice int Arbitration Court, "In the matter of No. 27" (the original tration) "and of an application that the said agreement may | made a common rule for the State of New South Wales app able to the retail reception, sale, or delivery of goods, Xe." All ti trades were enumerated as before, and notice was given that th parties to the agreement, that is all three unions or associati intended to apply to the Court of Arbitration on 15th Febru for an order declaring the terms and provisions of the abo mentioned industrial agreement to be a common rule applicab to the reception, sale, and delivery of goods, whether in offices, or warehouses .in the trades enumerated. The filing of notice was, according to the practice of the Arbitration Court, tl commencement of a proceeding in the Court. Thereupon tl present appellants, the Master Retailers Association, who are industrial union of employers, made application to the Court Arbitration, on summons, to set aside the notice, on the groun that the agreement was not an industrial agreement within tl meaning of the Act, and that the Court of Arbitration had jurisdiction to order it to be made a common rule, and f that it was an abuse of the process of the Arbitration Act.
The application was dismissed. There was thus a proceeding in the Arbitration Court, in w the Court had asserted its jurisdiction. Thereupon the appellan applied to the Supreme Court for a prohibition to restrain th
"Arbitration Court from proceeding to give effect to the applica- tion on the grounds, (1) that the Court had no jurisdiction to make the agreement of 3rd December a common rule, (2) that the agreement of 3rd December was not a valid and subsisting industrial agreement, (3) that the Court of Arbitration had no jurisdiction to order an industrial agreement, or any term thereof, to be a common rule. The Supreme Court granted a Rule Nisi, but, on the motion to make the rule absolute, discharged the rule with costs, being of opinion that the Court of Arbitration had jurisdiction to make the terms of the agreement a common rule, binding upon the whole of the trades in New South Wales. From this decision the present appeal was brought.
Holman and J. A. Brown, for the respondents, the Shop Assist- ants Union of New South Wales. The other respondents did not appear.
Holman, for the respondents, took the preliminary objection that there was nothing for the Court to prohibit. There was no proceeding initiated in the Arbitration Court. A notice had been
issued by the respondents, by advertisement in certain papers, of their intention to make an application, and a copy of the notice filed in the Court of Arbitration ; but no step had been taken to carry it into effect when the application for a prohibition was made by the appellants. The only proceeding in the Arbitration
Court was the taking out of a summons by the appellants calling upon the respondents to show cause why the notice should not be set aside. The summons was dismissed, but the application for a common rule had not been proceeded with.
[Gordon K.C., read an affidavit from which it appeared that the advertisement and the filing of the notice were the ordinary and only method of initiating proceedings, according to the practice of the Arbitration Court.
GrirritH C.J. - It seems to be analogous to a notice of motion
in other Courts. It is a notice to all the world.] VoL. 1. i
H.C. or A. 1904, sane THe Master RETAILERS ASSOCIATION or N.S.W. .
H.C. or A. It is rather analogous to the advertised notice prelimina \
asad applying for probate. Before prohibition can issue some step n
'Tae Master be taken: Stroud's Judicial Dictionary (2nd ed., sub. " Pro EEE: "Rev, Castle (1),
ASSOCIATION i or N.S.W. [GrirrirH C.J. - The Court, on the hearing of the summ
Tur Smor treated the matter as pending, and refused to stay proceedin
psy "It thereby asserted its right to deal with the matter.]
Ree 4xD That was a mere statement, not an assertion of jurisdiction
initiation of proceedings, and nothing further has been done.
Grirrita C.J. The rule is clearly laid down in Mayo London v. Cox (2), that, where want of jurisdiction is appar upon the proceedings, prohibition goes at any time after service the process, #.¢., as soon as the jurisdiction of the inferior is asserted. The superior Courts always guard very jealow their right to prohibit an inferior Court from exceed: jurisdiction. A mere stranger is entitled to come to the sup Court and apply for a prohibition to restrain an inferior
question is, is there a proceeding pending? We are told that the practice of the Arbitration Court, when it is intended tom application for a common rule, to treat the notice as the initi of the proceedings. It appears, indeed, that that is only fair pl because in that way those interested in the application are an opportunity of being heard in opposition. We are told a that it is the practice to file the notice in the office of the In fact it is just as much the initiation of the proceedings as filing of a notice of motion, or issuing of a writ of summ There is no magic in the word writ or summons. These thir are called by different names in different Courts. It does matter what the originating proceeding is; as soon as it is fi the proceedings are begun, and, if the want of jurisdiction ap on the face of them, any person may apply for a prohibi restrain the Court from further proceeding. The objection m therefore be over-ruled.
Gordon K.C., for the appellants. The basis of the decision of H- ©. oF A. the Supreme Court was that this agreement was a valid industrial sae agreement, and, as such, by virtue of sec. 15, had the same effect, Tae Master and was enforceable in the same way, as an award of the Court. eae But, assuming that the Court was right in its construction of sec.
15, there was here no valid industrial agreement. It was subject to the second agreement, which provided that the first was not to have any binding effect until it should be made a common rule. Therefore at the time of the application it was a nullity. If it had no life then, it cannot receive life from a subsequent proceed- ing, which can only take place on the assumption that the agree- ment has life already. Before a common rule can be made, based upon an agreement, there must be somebody bound by it. There must be some " practice, regulation, rule, custom, term of agree- ment, condition of employment, or dealing in relation to an industrial matter," to be made a common rule: sec. 37 (i.). The fact that two or more parties have actually made an agreement, and are bound by it, is some guarantee to the Court that the terms of the agreement are beneficial to the industry, and work well in practice. The registration does not make it an industrial agreement, unless it is already operative as an agreement apart from the Act. In Pym vy. Campbell (1), which was relied upon by the respondents in the Arbitration Court, an agreement was drawn up subject to the approval of a third party, and it was conceded that, though on the happening of a certain event, it would become operative, it was nevertheless of no effect in the meantime. That is all that is contended for the appellants here.
Assuming that the agreement was valid as an industrial agree- ment within the meaning of sec. 15, the Arbitration Court had no jurisdiction to make it a common rule in the manner attempted. Sec. 37 of the Act provides that a common rule may be declared "with a view to the enforcement of" an "award, order or direc- tion." There must therefore be in existence, at the time of the application for a common rule, a valid award, order or direction. Sec. 26 gives the Court power to make such an award, order, or direction, in pursuance of a hearing or determination, which can only take place on a reference under the Act. There is no other
power to make anaward. The reference must be by an ind 1904,
union, or by some person affected or aggrieved by an order of Tux Master Court (sec. 28). There was in this case no reference within piceest meaning of that section, and there was no award to be enfo or NSW. by a common rule. The Supreme Court were of the opinion tl
Tux Sor by see. 15 an industrial agreement could be enforced in the sa
AQ8R way as an award, and that therefore anything that the eA 48? could do for that purpose under see. 37, could be done for purpose of enforcing an industrial agreement; but the ma
an award a common rule is not an enforcement of it. : [O'Connor J. I think it must be taken that all the pow
given to the Court by the various sub-sections in sec. 37
to be exercised " with a view to the enforcement of its award, ord or direction." That is the only grammatical construction which the words are capable.] Assuming that to be so, sec. 15 provides that the agreem shall have the same effect and may be enforced in the same wi as an award, "as between the parties thereto," and not for all pu poses. To make it a common rule is not enforcing it be the parties, but against strangers. The power of the Court toe force an industrial agreement must be limited by the words | between the parties to the same," and, reading sections 15 and) together, it is impossible to hold that such an agreement can enforced by being made a common rule. Outside sees, 15 and there is nothing in the Act to suggest any power in the Cor make an industrial agreement a common rule, or to enforce it in way. When an industrial agreement is before the Court on proper reference, and an award has been made, the Court m with a view to the enforcement of its award, declare all the tern of the agreement to be a common rule of the industry, and so effect make the agreement a common rule. But that would | after a hearing and determination on the merits, which is ve different from an application to have a particular agreem possibly arrived at by collusion, directly declared a common The legislature contemplated that matters would not be refer to the Court unless there was a bond fide dispute between p For instance, one of the parties to an industrial agreement come to the Court to have it enforced against the other, who W
reluctant. The Court might then make an award, and later de- H. C. or A. clare a common rule. Here there was no real grievance; the only 1904 object of the application, as appears from the terms of the second Pye Master
: aa ; é RETAILERS agreement, was the obtaining of a common rule. Weave.
The Act, being in restraint of the liberty of the subject, should °* Bee Wi
be construed strictly, and in favour of the subject. The Court has as Suor given a mistaken decision, which can be reviewed by prohibition : Usiox oF
Holman for the respondents. This Court will not interfere if the Arbitration Court has merely made an error in law that does not go to the root of the Court jurisdiction. See, 32 provides that its decisions are not to be reviewed on any ground of inform- ality or want of form. There was no usurpation of jurisdiction in the present case. The Court has full power to deal with the application by virtue of secs. 15 and 26 (a). It was an "industrial matter referred to it by an industrial union." That general expression is intended to cover matters, outside actual disputes, which it would be impossible to particularise. The Court is given a quasi-legislative power, that of making "by-laws" or "regula- tions," a power altogether distinct from the judicial power which all Courts must have. Its power is not confined to dealing with disputes inter partes.
[Grirrit# C.J. - All the provisions in sec. 26 are applicable to proceedings between parties. The Court cannot make an order except between parties. It is a Court to "hear and determine."]
The feature of a common rule is that it binds persons who are not parties, though the Court, in their interests, allows them to appear and be heard. The definition of industrial dispute omits matters which are manifestly within the Court's jurisdiction. This was a matter affecting industries, even upon the assumption that the first agreement was nullified by the second. It was a "dealing in relation to an industrial matter," which the Court may make a common rule. There is no restriction upon the right of a union to refer industrial matters to the Court. It is there- fore immaterial whether there was a valid industrial agreement
in existence or not, or any dispute which could be settled | agreement or reference.
[O'Coxnor J. - Is not the whole object of this Act the decidin and settling of disputes? Is it not taking it a long way fro that to make the Court a board of trade for regulating the eo ditions under which businesses are to be carried on 7]
The application by the union involves both a request to mak employers obey the union, and a request that other employ may be made to obey the same rule, so as to put all upon an eq r footing. The common rule is for the protection of employ bound by an award against the competition of employers would not otherwise be bound. There is no need for any agg vated dispute to be in existence; a mere difference of opinio would be a matter for settlement. Every industrial agreemen implies some such difference at least, and the policy of the Act to encourage amicable settlements rather than litigation. union of employers may have a difference with another sim union, and may come to the Court to have the matter settled if n agreement can be arrived at otherwise. That would be clear! an industrial matter, though not within the definition of "in trial dispute" in the Act. 'The legislature has not attempted an exhaustive enumeration of matters within the jurisdiction of Court, and therefore the mere fact that such applications as now in question are not specifically mentioned or indicated, can
in respect of it, and enforce that order by making the agree acommon rule. It is no more objectionable than a consent ay The Court will not confirm or enforce it unless it is fair to parties who are to be bound by the order. It can take evid and, after heariny, come to a determination on the merits. Ther instead of making the agreement, as such, a common rule, Court can make an award in terms of the agreement, and de the award or its terms to be a common rule. This would be strict compliance with the procedure suggested by secs. 26 and 3 and the parties to the agreement arrive at the same end as if
agreement had been directly declared a common rule upon
application for that purpose. The defect, if any exists, is, there- H. ©. or A fore, one of procedure. The parties have only failed to ask for an ®* award, as a preliminary to the common rule. This could be cured Puy Master by the Court, either by amendment, or by first making an award, Pee and then declaring that to be acommonrule. It would be within oF the powers given by sec. 26 (g) (ii.), to " amend or waive any error Tue Suor or defect in the proceedings." The only error on the part of the aeiles aE Court has been doing, by a short cut and without amendment, N.S.W. axp
what it could have done by a longer way by amendment, even berag if it could not waive the irregularity altogether. It is, therefore, a mere informality or want of form in the proceedings, which is not a ground for prohibition: South-Eastern Railway Co. v. Railway Commissioners (1). The mere possibility that injustice may be done if the matter is proceeded with, is no valid ground for a prohibition. It cannot be assumed that the Court will make an unjust order. (Grirrire C.J. - The difficulty in your way is the presence of the words "with a view to the enforcement of its award, order or direction."]
The foundation for the common rule is the cireumstances which lead to the Court's determination, not the determination itself. So long as the proper persons are before the Court and the matter dealt with is within its jurisdiction, the Court can exercise all the powers conferred by secs. 26 and 37. It is a common practice of the Court to make an award and a common rule in the same order, as a result of the hearing and determination. The parties have not asked for an award in this case, but the Court may nevertheless make one. There is no more likelihood of collusion than if all had been in order and an award had been asked for.
(Grirrira C.J., referred to McIntosh v. Simpkins (2).}
The defect there was not the absence of a condition which the Court itself could supply, but an absence of certain external cireumstances " necessary as a preliminary to the Court's jurisdic- tion," which could not be waived. There was no irregularity here which could not have been cured by amendment. A Court of appeal will not interfere with the decision of an inferior Court on merely technical grounds: New Lambton Land and Coal Co,
(1) 6 Q.B.D., 586. (2) (1901) 1 K.B., 487, at p. 491.
H.C.or A. Ltd. vy. London Bank of Australia Ltd. (1). sce The two documents of 3rd December, constituted a valid Tue Master SUbsisting industrial agreement. 'They form "an industrial a Focal ment . . . varied by another industrial agreement," wit oF Ne -S.W. the meaning of sec. 14, and are therefore binding on the 'Tux nor The agreement so made possessed all the formal chara = as; ng essential to an agreement, viz., parties, objects, a specified te N'S.W. AS? operation, &. The mere suspension of its foree until the happé ing of a condition does not affect its validity as an agreement. binds the parties in the meanwhile. They cannot repudiate it do anything to prejudice its fulfilment at the appointed tin [He referred to Hochster v. De la Tour (2), Goss v. Lord Nug (3), Pym v. Campbell (4), Wallis v. Littell (5), Lindley
An industrial agreement, except that it deals with ind matters, is not in any way distinguishable from any other ment. Sec. 15 does not refer only to such industrial agreen as may be enforced immediately. The word "agreements"
be taken as generally as if it were used anywhere else.
If it is a valid agreement it may be made a common rule. 15 puts industrial agreements on the same footing as awards,
be done with a view to the enforcement of an industrial ment, if applicable thereto. The words "as between the to the same," in sec. 15, do not limit the power of the There is no more difficulty in the enforcement of an agreem by declaring it a common rule, than in enforcing an awa ; that way. Both agreements and awards have parties, and, ing strictly, can only be enforced against the parties bound by. But sec. 37 speaks of a common rule being made wi view to the enforcement of an award. The common rule applicable to an agreement as to an award. It is not consi equitable or conducive to the proper observance of an award,t the award should be binding upon one employer or set of employe
(1) 1C.L.R., 524. (4) 6 El. & BL, 370. (2) 2 El. & BL., 678. (5) 11 C.B. N.S., 369. (3) 5 B. & Ad., 58. (6) 17 C.B. N.S., 578.
only. So it is not just to expect an employer to bind himself H.C. or A, by agreement with his employés to observe certain restrictions, aS
if other employers are allowed to remain free from those restric- Tux Masrer tions, and the knowledge that the agreement can be made a com- posse
mon rule will further the objects of the Act, thatis, it will encour- oF N.S.W. v
age the settlement of differences by agreement instead of by litiga- Tue Suor
employer who is a party to it will be more likely to observe its Bo Meee conditions, if other employers also are made subject to them. In _ that sense the declaration of the common rule may appropriately be made with a view to the enforcement of the agreement. If so, it may be done "in any proceeding," no matter how the agree- ment has been brought before the Court. [He referred to several cases before the Court of Arbitration, in which the Court had de- _ clared an industrial agreement to be a common rule.]
This is a remedial Act, and the Court is entitled, in dealing with it, to consider the evils which the Act was intended to remedy, and construe its provisions liberally in the direction of carrying out the intention of the legislature: 1 Blackstone's Commentaries, 15th ed., pp. 86, 87; Hardcastle, Interpretation of Statutes, 3rd ed., p. 70; Collman v. Roberts (1); Dapueto v. Wyllie & Co, (2).
(GrirritH C.J. - That rule does not apply where the Statute, which establishes a new Court, itself prescribes a condition for the exercise of the new jurisdiction.]
Reference was also made to Ex parte Ardill (3); Ex parte Commissioners of Kingstown (4); R. v. Local Government
tion. Moreover, if an industrial agreement is in existence, the
The judgment of the Court was delivered by Grirriva C.J. [His Honor having stated the facts in connec- &th December. tion with the making of the two agreements of 3rd December, _ proceeded :]
(1) (1896) 1 Q.B., 457. (4) 16 L.R. Ir., 150; S.C. on appeal, Q) LR. 5 P.C., 482, at p. 492. 18 L.R. Ir., 509, (3) 19 N.S.W. W.N., 107. (5) 10 Q.B.D., 309.
H.C. or A. Upon the registration of the second agreement the 1904. between the parties was that their relations were regulated ieaalaeet the two documents, as together forming one agreement or qu Pees agreement, but the consequence also was that no obligations or N.S.W. imposed upon any of the parties to the agreement contained Tar Suor the first document, although it has been called an agreement. It aay an agreement in one sense, but it was an agreement incapabl NSW. AXP enforcement, because it imposed no obligation upon any one," [His Honor, having referred to the proceedings in the Arbit
The question raised is one of very great importance, T application is made by two industrial unions of employés, have come to a common understanding with their employers, rather, with one firm of employers, and by those emplo, impose the arrangement they have made as between thei upon the whole State of New South Wales, which is practi calling upon everybody who is engaged in this business the State, to litigate with them in one proceeding for the purp of regulating in all its details the business of those trades. ' question for us to consider is whether the Arbitration Court | any such jurisdiction. If that Court has jurisdiction the Sup: Court cannot interfere with it in its exercise, but, if it has not jurisdiction, the Supreme Court is bound, on being appe to interpose its hand, and see that the limit is not transgre The matter turns entirely upon the construction of the Arbiti tion Act. We were asked by Mr. Holman to say that the A a remedial Act, and that, therefore, it ought to be co liberally, as distinguished from a penal Act, which, as it be said, should be construed strictly. It may be remarked tl the old distinction drawn between remedial and penal Acts h of late years been much discredited. What has been laid do in modern cases is that the duty of the Court is to interpret At according to the intent of the Parliament which passed them. this point I have had occasion to quote more than once on #) bench the opinion of the judges given in the House of Lord: the Sussex Peerage Case (1). Lord Chief Justice Tindal, deli
ing the opinion of the judges, says: - " My Lords, the only rule for the construction of Acts of Parliament is that they should be
unambiguous, then no more can be necessary than to expound those words in their natural and ordinary sense. The words themselves alone do in such a case best declare the intention of the law giver."
» As was said by this Court in Clancy v. Butchers' Shop Employés . Union (2): - *In construing the Act it should be borne in mind
that it is an Act in restriction of the common law rights of the subject, and, though that is no reason why the fullest effect
. should not be given to its provisions, it is a reason why the _ meaning should not be strained as against the liberty of the subject." The great fundamental principle of our jurisprudence
is liberty. Where it is alleged that the liberty of individuals may
_ be restrained,the party alleging the right of restraint must establish _ by some Statute or by judicial decision that the liberty has been
restricted. It is not necessary to refer to the general objects of the Act, as they are familiar to all of us. They are recited in the title, which states in a summary and concise way the obvious purpose of Act, which is "to provide for the registration and incorporation of industrial unions, and the making and enforcing of industrial
agreements; to constitute a Court of Arbitration for the hearing "and determination of industrial disputes, and matters referred to "it; to define the jurisdiction, powers, and procedure of such ' Court ; to provide for the enforcement of its awards and orders ;
and for purposes consequent on or incidental to those objects."
~ The object of the Act therefore is to establish a new tribunal,
called a Court of Arbitration, for the hearing and determina- tion of industrial disputes and matters referred to it. It is
not to constitute a board of trade, or a municipal body with
power to make by-laws to regulate trade, but a Court of Arbitra- tion, for hearing and determining industrial disputes and matters
referred to it. And it will be found, on examining the language
of the Act, that the words used are always words apt to be used in speaking of a tribunal. The functions of the Court are described as
"to hear and determine industrial disputes and matters." The
Tue Master RETAILERS ASSOCIATION or N.S.W. v THE SHop ASSISTANTS Unton oF N.S.W. ano OTHERS.
manner in which a question within the jurisdiction of the Cor
which is the term always used in ordinary legal lang deseribing the process by which individual persons constitutit private tribunal of arbitration submit the matter to it. decision of the Court is spoken of as an "award," which apt word to describe a decision of a private tribunal of arbitrati All the provisions of the Act are in accordance with this vi
which provides: "The Court shall have jurisdiction and po (a) on reference in pursuance of this Act to hear and dete according to equity and good conscience - (1) any industrial d pute; or (ii.) any industrial matter referred to it by an indus union or by the registrar; (iii.) any application under this A So that the Court has no power to give an "award order or ection" except in pursuance of a "hearing and determinati which again are words apt for describing a judicial procee Then follow a number of provisions incidental to judicial pro ings. See. 28 limits the persons who may invoke the jurisdit of the Court. Sec. 29 provides that a union or persons entit to invoke the jurisdiction may make application to the re; That is how proceedings are instituted. Sec. 30 provides party to a reference" (again assuming that it is a proceedi to which there are parties) "may apply for directions." section goes on tosay that "atthe hearing . . . ._ particul of the claims of the parties may be ordered," with other p
between parties, to be ended by a hearing or dete which may be an award (which is in the nature of a judgm order or direction. Then sec. 37 provides: "In any pro before it the Court may do all or any of the following with a view to the enforcement of its award, order or ection." Among other things it may "(1) declare that : practice, regulation, rule, custom, term of agreement, con tion of employment, or dealing whatsoever in relation industrial matter, shall be a common rule of an industry by the proceeding." Before examining this section in de will refer to the opinion expressed by the learned judg
the Supreme Court upon it. The learned Chief Justice (1) 'says: "as I understand one part of the argument, it was that the industrial agreement should be made an award before
being made a common rule. I do not see how this is possible-
There is no provision in the Act for the purpose. An award
is the adjudication of arbitrators terminating a dispute; but
where there is an agreement inter partes there is no dispute to be terminated by arbitration. Ido not see any difficulty in the matter. Under sec. 37 of the Act the Court may declare that any regulation, rule, or term of an agreement in relation to an industrial matter shall be a common rule. These words appear to me to expressly include industrial agreements." With great respect I point out that the Act does not say so. The section says that "with a view to the enforcement of its award order or direc-
tion," the Court may declare that any regulation, &c., shall be a
common rule. I will call attention to that phrase directly. His
Honor goes on to say: "Sec. 15 of the Act provides that an indus-
trial agreement shall have the same effect as an award, and the
Court shall have full and exclusive jurisdiction in respect thereof."
With great respect again, these are not the words of the section, to
which I shall call attention later on. If secs. 37 and 15 did provide
what the learned Chief Justice thought,then it would be the natural consequence that this prohibition should be refused. Mr. Justice
Owen, with reference to the same point, says (2): "In the
course of the argument we decided that the Industrial Arbitration
Court had power under sec. 37 of the Act (1901 No. 59) to make
an industrial agreement a common rule, and that the power in
that respect of the Court was not limited to the case where an award had been made. That section is peculiarly worded. It says: [His Honor read the section down to the end of sub- sec. (1).] "It was contended that the words ' with a view to the enforcement of its award' implied that it was only after an award had been made that the Court could make a common rule for the purpose of enforcing its award; but that appeared to us to be too narrow an interpretation of the Act." The reasons why they came to this conclusion are not there clearly stated. It
(1) (1904) 4 S.R. (N.S.W.), 384, at pp. (2) (1904) 4 S.R, (N.8.W.), 384, at p. 387-8. 392.
H.C. or A. appears, however, that on the same day when the reserved
aid ment was given the Court had already given judgment ii Tue Master case of Hx parte Leahy (1), in which case also they BETAILERS under considetation the provisions of sec. 37. They
of N.S.W. amining sec. 37 especially with regard to one provision 2,
'Tue Sor namely: "The Court may, with a view to the enforceme ae its award order or direction, order . . . . the cancella aS of the registration of an industrial union." They were ex it to see whether the words " with a view to the enfore &e.," limited the power of the Court to order the cancellation of industrial union. That was the question immediately b them, and they thought that the words did not apply to limb of the section or to some others, because they thought powers in question were not in their nature capable of exercised for such a purpose. Amongst those which they thou incapable of such exercise was the power to make a common ri and the power of cancellation. They therefore read the as to those powers, without these words. This is what the Chief Justice said (2): "On reading that section it seen that of its eight sub-clauses there are only three- fourth, seventh and eighth - which directly refer to the enfc ment of an award, order or direction. Of the remaining five, first, second, and third relate to the power of the Court to dee and enforce a common rule. 'The fifth deals with the cancellat of registration of an industrial union, and the sixth gives Court power to expel any member from an industrial uni am of opinion that the words in the 37th section, 'with a the enforcement of its award, order or direction, must be re being confined to those clauses of the section which deal with enforcement of an award &e.; but leave the preceding words the section to apply generally to the five clauses of the which do not deal with the enforcement of awards, &." section is read with these words left out, there would, no do a general power in the Court to make a common rule wheney thought fit. But we cannot leave out words in a Statute, if ase meaning can be given to them. Our business is to construe thel
(1) (1904) 4 8.R. (N.S.W.), 401, (2 (1904) 4 S.R. (N.S.W.), 401, at p. 412.
not to make it. Primd facie the meaning of the wordsis plain,"in H.C or A. any proceedings before it the Court may do all or any of the follow- ne ing things with a view to the enforcement of its award, order or Ty» Master direction." In my opinion all the powers enumerated in sec. 37 are Fe capable of being exercised for that purpose. 'The words therefore oF N.S.W. cannot be rejected as to any of them. And surely, when power is given to take certain steps for the purpose of enforcing a judgment or judicial determination, it is assumed that there is in existence some judgment or judicial determination to be enforced. How,
in the nature of things, can you enforce a non-existing judg-
ment ? On that point I will read a few words from the judgment of Collins, L.J. (cited by this Court in Maloney v. McEucharn), (1), in MeYntosh v. Simpkins (2). That was a case in which a Court of limited jurisdiction, as the Court of Arbitration is, had taken a step, as the Court of Appeal thought, without complying with a statutory condition. "We are not entitled to approach this case as if there were no provision enacting that an affidavit in a particular form should be the foundation of the proceedings. To say that the question is merely, and apart from the statutory conditions, whether a priméd facie case is made out would be to strike out these safeguards in the case of a debtor against whom it is proposed to put in force the provisions of the Debtor's Act, 1869." So here,we are not entitled to approach this case as if there were no provision that this power of making a common rule was conferred on the Court "with a view to the enforcement of its award, order or direction." Nor can we say that the question is whether apart from the condition a case can be made out for a common rule.
The reference here to a safeguard leads naturally to the inquiry whether this provision, that there should be an award as the foundation of a common rule, is or is not a statutory safeguard provided by the legislature. Now this Act confers enormous powers for the regulation of trade, and probably the greatest of all is the power to declare a common rule. If the view is correct that a common rule can only be declared as ancillary to an award or judicial determination, there is at least this safeguard provided by the legislature, that a common rule cannot be enforced, govern-
(1) 1C.L.R., 77. (2) (1901) 1 K.B., 487, at p. 491.
H.C. or A. ing the whole community or a considerable part of it, without 1904,
Tue Masrer Stituted for the purpose of deciding it, and constituted in a man
aN which is supposed to render it specially competent for that purp oF N.S.W. There is no special provision contained in the Act that no
Tue Suor shall be given to any one before the making of a common n ies "but the legislature has reposed the largest confidence in the ae Sag and amongst other things, it says that, if the Court in the eow of a judicial determination has made an award, order or direeti
and thinks it necessary for the enforcement of the award -
I take it, in order to make the award of practical effeet - it
declare a common rule. But the safeguard is that the jud
mind of the Court has been applied to the subject before it e:
cises that extraordinary power. No doubt the Court d
generally require public notice to be given before strangers
to be made subject to its decree, but the Act does not expre
require it to be done. Nor does the Act prescribe in what w
or under what circumstances the Court is to give its jud
previous sanction of a judicial determination by a tribunal
judgment made in any other way, if not obtained by fraud, itm I think, be fairly inferred that the legislature supposed and
given upon persons not parties to the litigation, would only exer its power after a real judicial determination, which, in point of made an essential preliminary. Moreover, the provision is terms that the Court may make a code for the government of industry or industries. The wordsare: "declare that any practi regulation, rule, custom, term of agreement, condition of empl ment,or dealing whatsoever in relation to an industrial matter,shi be a common rule of an industry affected by the proceeding."
proceeding in the nature or form of an award. In making award the Court is dealing with a contest between parties. /
between them, it may appear reasonable to the Court that a p
between them; but it might also be manifest, when making an
ceeding to which the whole world at large would be parties for Vou. tt. 8
the purpose of declaring a common rule. I am unable to se distinction in principle between that and the cases mentioned
has jurisdiction to modify a settlement after a decree for dis tion of marriage. In doing so it affects the rights of parties o than the parties to the suit. It is a special power given }j statute to affect the rights of persons not parties to the suit that power cannot be exercised without the existence of the dition prescribed as the foundation of the proceeding, the judgment. So here, in the absence of an award, judg or judicial determination, there is no jurisdiction to ma common rule. It is said however that these are idle because it may be a friendly suit. The condition imp the legislature is that there shall be a judgment. No ( can impose upon the Arbitration Court the manner in it shall perform its duties. If the Court is satisfied consent between the parties before it, it may, if it thinks exercise its judicial mind. That course is open to it, and no Co can interfere with it. But the legislature, I think, contempl: that it should be a real judgment, and not a merely formal That, however, is not a matter to give rise to interference by Supreme Court. But although this is so, the position with to an industrial agreement is not the same. I have quote judgment of the learned Chief Justice on this point. He that see. 15 provides that an industrial agreement shall have same effect as an award. The words of sec. 15 are - * An im trial agreement as between the parties bound by the same have the same effect as an award." It is impossible to leave the words "as between the parties bound by the same." Sees to 15 contain a code as to industrial agreements. They pro that an industrial union may make an agreement with ano industrial union or with an employer for a specified term, and agreement must be filed. Then it becomes an industrial a ment, and may be rescinded or varied. The second part of 14 goes on to describe the parties on whom an industrial ment is binding. Having given the definition at conside length, the Act goes on to say that an industrial agreemen between the parties bound by the same" shall have certain é
If you strike out these words, which is an extraordinary mode of H. C. oF A. construction, no effect is given to the concluding part of the pre- ba ceding section, which is the foundation and definition of these tus Master words, and is devoted to defining the words "parties bound Pee!
by the same." The Supreme Court rejects these words altogether or N.S.W.
and their definition. When an industrial agreement is entered 'Tux Saor _ into, the obligations of it are not imposed upon the parties against pee pay
their will, but by their own agreement and assent. When the Act oaks
says that it may be enforced as between themselves, it simply
means that the terms to which they have agreed by a registered
agreement may be enforced as between them, but nobody else is
bound by it. But an award also can oply be enforced, gua award,
as between the parties to the litigation. Yet, it is said, a common
tule can be made after an award. That is true. The parties to
the award are bound by it, but a common rule affects persons not
parties to the award ; and it is suggested that because an industrial
agreement also binds the parties to it, who are expressly defined,
therefore it also may be, like an award, enforced against others not
parties to it. This seems to be a singular argument. It is said
that there will be just as much difficulty in carrying out the terms
of an industrial agreement as of an award, because it might
contain conditions which expose the employer to great competition.
But the answer is - then why make the agreement? The parties
can alter it or rescind it. That is a matter entirely in the hands
of the parties. If they make an agreement which proves to be in-
convenient, they are allowed to rescindit. That isno reason why
an agreement should be said to be on the same footing as an
award. The president of the Arbitration Court thought it would
be inconvenient if the Court could not have the advantage of an
amicable settlement between the parties. That, however, is a matter
for the legislature, and, if the Court is to be able to take advantage
of it, they must be placed in that position by Parliament.
For these reasons it seems to me that it is impossible to say
that a mere industrial agreement, which has not been made an
award of the Court, may be enforced by making it a common
rule without rejecting from sec. 15 the words "as between the
parties bound by the same." The enforcement by means of a
common rule is not the enforcement of an agreement between the
H.C. or A. parties at all. It is an enforcement against other persons, s
sg have the same effect and may be enforced in the same way a award of the Court of Arbitration,and the Court shall have exclusive jurisdiction in respect thereof." But how can an ind trial agreement, incapable of being enforced, be enforced? It is contradiction in terms. The present agreement is not capable enforcement. No party to it can take proceedings against other parties, and therefore it cannot be enforced.
For these reasons it appears to me that the Arbitration Co has asserted a jurisdiction which the legislature did not i to give it, and by means of a short cut, and without fi providing the statutory foundation prescribed as what In call the safeguard by the Act, has endeavoured to impose ol
gations upon persons over whom it had no authority.
Appeal allowed with costs against all pondents except the members of Arbitration Court. Order of Supr Court discharging Rule Nisi disch with costs. Rule absolute for pro) with costs.
Solicitors for appellants, Westgarth, Nathan d: Ov. Solicitors for respondents, Shop Assistants Union, Brow Beeby.