Master Retailers' Association of New South Wales v Shop Assistants Union of New South Wales [1904] HCA 39

Master Retailers' Association of New South Wales v Shop Assistants Union of New South Wales [1904] HCA 39 - HCA 1904 case summary — Zoe

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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.

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between them; but it might also be manifest, when making an

award or after making it, that if the terms were imposed upon the particular employers who were parties to the award, and not upon others engaged in the same business in competition with them, the competition of those not bound by the same restrictions would be unfait. Therefore, in order to enable the Court to do complete _ justice in any case, that is, to make an award fair to the parties, power is given to extend to the whole of the industry any con- dition of that sort. It is very likely that the Court, having _ power to extend one term, may extend all - though that does not seem to have been the intention of the legislature, but it may be within the words of the Act - and may have power to regulate the wholetrade in accordance with the terms of a particular award. But _ that is not a matter which we have to decide now. The question is whether the foundation of the power to declare a common rule is not a previous judicial determination. It is asked, why should it be ? It is no argument to say, why should it be, if the legislature has said that it shall be. But, if the question is asked, the answer is obvious. The safeguard to the community at large is that a judicial body has applied its mind judicially to the question in the presence of the parties interested in setting up the opposite view, and has come to a conclusion on the subject. That is the great protection to the public. If the same power existed with regard to a private agreement, that safeguard would be entirely gone. Any industrial union, however small, might make a bargain with its employers, perhaps in a very small way of business, and there would be absolutely no safeguard as to the terms of the agree- ment, and then application might be made to the Court, which, without any judgment of its own, might make the terms of the agreement a common rule. The question is whether the legisla- ture has not imposed this safeguard before the Court can declare acommon rule. These reasons seem to me and to my learned brothers to be absolutely conclusive to show that literal effect not only can, but ought, to be given to the statute, and that it is only with a view to the enforcement of an award that the Court can declare a common rule. If that is the meaning of the Act, the Court cannot, in the absence of that foundation, institute a pro-

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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

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Judgment (199 paragraphs)