oi lianis v Corman,

oi lianis v Corman, - [1944] HCA 37 - HCA 1944 case summary — Zoe

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effective transfer of labour is part of a flexible economy. The fe the obstacles to the transfer, the more flexible and therefore prod tive for war purposes the economy, and the more flexible the economy, the more adaptable it is. The transfer of labour involves (1) intro- duction of labour into the particular industry ; (2) causing labour to remain in the industry. The administrative problem is thus transfer plus industrial stability. The transfer may be achieved by persuasion, by compulsion, by threat of compulsion. _ It is legitimate for the Government to see that conditions under which persons are directed to labour are fair and just. The removal of wage disparities, if determined by the Court, will or may (1) facilitate transfer because it will assist to minimize compulsion to go into the industry; (2) lessen absenteeism, minimize industrial dissatisfaction and promote efficiency and therefore productivity in the industry. The Regula- tions are complementary to the scheme of wage pegging introduced by the Economic Organization Regulations because they permit of careful adjustments to obviate or remove causes of dissatisfaction that may lead to industrial unrest. The Regulations have the object declared in reg. 3: See regs. 5, 8 (b) and (c). " Fair and just" relates to individuals; " national interest" to economic stability. - On the second construction, " for war purposes " must be supplied as part of the definition of vital industry. The definition is incomplete, because " vitally necessary" must relate to some purpose. There is a presumption in favour of validity, and the Governor-General's power to order must be presumed not to exceed the defence power. The Regulations must be construed as a whole, and the purpose to which the phrase " vitally necessary " relates must be found in the purpose recited in the objects clause, reg. 3. Regulations relating to the effective transfer of labour are within power as they relate to war industries. If the Governor-General were to declare an industry vitally necessary when in fact it was not, the declaration would be bad and outside the defence power and could be challenged by appropriate proceedings (Reid v. Sinderberry (1) ).

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if so directed by the proper authority. But the Female Minimu Rates Regulations provide that the Arbitration Court should not bound by the provisions of the Economic Organization Regula and give it practically a free hand in fixing the rates of pay in i tries covered by the Regulations, subject only to this, that the should not have regard to any submission that it is necessary | offer a differential monetary inducement or attraction to promo the recruitment of female labour for vital industries and that it sh not express its determination so as to increase the rate of remun tion of any female employment for which the basic rate, to; with any margin or other allowance, immediately prior to the dat of its determination, is equal to or exceeds the total amount pay as the minimum rate under the Court's determination. Minimu rates of remuneration under awards, orders and determination may observe, tend in Australia to become the normal and maximum rates of remuneration. But from all this it appears the Female Minimum Rates Regulations operate to reduce disparitit in industries which in fact "are vitally necessary during the war and those which are not vitally necessary but are simply dec by the Governor-General to be vitally necessary ; further that att tion wages for " vital industries" are forbidden; that the p of the Regulations is not to increase the rates of pay for the p of attracting females to industries declared to be " vital " whe' those industries were in fact vitally necessary during war or but because those wages are unreasonably low, although all rates had been fixed pursuant to Federal or State laws ; still, that disparities had been created in the minimum rates of for females not owing to war conditions but by reason of the ex by the Commonwealth of the defence power and its pegging ri tions ; and finally that the industries covered by the declaration reference are with two exceptions industries in which females been employed long before the war at rates fixed under Federal State laws or industrial agreements operating under those la though no doubt those industries are now largely engaged in wal work.

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Wru1ams J. This demurrer raises the question whether the al Security (Female Minimum Rates) Regulations are a valid ercise by the Executive of the power delegated to it by the National urity Act 1939-1943 to exercise the defence power conferred upon Commonwealth Parliament by s. 51 (vi.) of the Constitution. Reg. 4 defines " vital industry" to mean any industry which is by the Governor-General to be vitally necessary. The al Security Act is entituled an Act to make provision for the and defence of the Commonwealth and its Territories during y war in which His Majesty is or may be engaged; s. 19 of that provides that the Act shall continue in operation until a date o be fixed by proclamation, and no longer, but in any event not ger than six months after His Majesty ceases to be engaged in Reg. 3 states that: "The objects of these Regulations are, or the purposes of the defence of the Commonwealth and the more al prosecution of the war, to facilitate the effective transfer females from the work in which they are ordinarily engaged to which may, from time to time, be more necessary during the , by reducing disparities in the minimum rates of pay for females existing awards, orders, determinations or industrial agree- nts". 'The Court was therefore invited by counsel for the Commonwealth, [ it was necessary to do so in order to uphold the validity of the ations, to construe the words " vitally necessary" in this to mean vitally necessary for the defence of the Common- alth and the more effectual prosecution of the war. But I am ble to place this restricted meaning on the words. They were ntended, I think, to confer upon the Governor-General, that is, pon the Federal Executive Council, power to declare any industry to be a vitally necessary industry and not to leave the question whether any particular industry was in fact a vitally necessary stry for these purposes open to review by the court. But I think it is apparent from reg. 3 that the Regulations only intend that any industry which is or becomes necessary for these purposes

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F regard to any submission that it is necessary to offer a differential monetary inducement or attraction to promote the recruitment of female labour for vital industries. It was submitted that this pro- vision indicated that the Regulations in their scope and purpose went far beyond the objects stated in reg. 3 and showed that these were not the real objects of the Regulations at all. But I cannot agree with this submission. The purpose of reg. 8 (b) is, to my mind, to make it clear that it is not the function of the Court under the Regulations to fix a minimum rate so attractive that women will _ be induced thereby to seek to change from one occupation to another. Such a diversion of woman power falls within the province of the Man Power Regulations. The general object of the Regulations : is to keep the minimum rates in all industries considered from time to time to be vitally necessary in the changing course of the war on a reasonably level basis, so that work in any of these industries will be equally attractive, and thereby, to apply the words of reg. 3, to facilitate the effective transfer of females from the work in which 'they are ordinarily engaged to work which may from time to time be more necessary during the war. Reading the Regulations as a whole it can be said, I think, if I might venture to adapt in substance the words used by Lord Atkin in delivering the judgment of the Privy Council in Abitibi Power and Paper Co. v. Montreal Trust Co. (2) to the present case, that there is no reason to reject the statement _ of the Executive, contained in reg. 3, that the power is given to the : Court for the objects therein mentioned. The increase in the rates will, of course, enure for the benefit of those women already employed _ in industries declared to be vitally necessary as well as for those who are transferred to them from other industries either voluntarily or under compulsion or the threat of compulsion, but this is inevitable and is indeed only fair and just, because the former class of women could not possibly be expected to work for less than the latter class. I agree with the contention of counsel for the plaintiffs that there "must be some specific and not a mere general connection between the particular legislation and the prosecution of the war, but in the Present case such a connection does arise, in my opinion, from the objects stated in reg. 3. Apart from reg. 3, there is also a sufficient connection because the Regulations are an exercise of the power to

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fix the terms and conditions of employment in industry. While it is true that in the Women's Employment Regulations Case (1) and in Pidoto's Case (2) the Court was dealing with particular aspects of that employment, it seems to me that the effect of these decisions, and particularly of that in Pidoto's Case (2) is, as I said in R. v. Com- monwealth Court of Conciliation and Arbitration ; Ex parte Victoria; - Victoria v. Foster (3), that it is within the ambit of the defence power for the Commonwealth in time of war to regulate the terms - and conditions of work undertaken by women in all industry. I _ can only repeat the views expressed in Pidoto's Case (4), applied mutatis mutandis in Reid y. Sinderberry (5), that: " The amount of industry which possibly has no connection with the war must be - so small when compared with industry which has some connection that, in view of the general interlocking, it is, in my opinion, reason- _ ably capable of aiding the war effort for the Commonwealth to legis- _ late to maintain industrial peace in the whole of industry, even if it is open to dispute in the case of some industries whether they have any connection with the prosecution of, the war." That line of reasoning is entirely consistent with the unanimous decisions of this Court relating to the Landlord and Tenant Regulations (Silk Bros. Pty. Ltd. y. State Electricity Commission of Victoria (6)) and the Prices Regulations (Victorian Chamber of Manufactures y. The Commonwealth (7) ) and with the joint judgment of the Chief Justice and McTiernan J. in the subsequent case of Reid v. Sinderberry (8). Further, the judgments in two recent decisions of the Supreme Court of the United States of America, Bowles v. Willingham (9) and Yakus v. United States (10) relating to the Emergency Prices Control Act of that country, contain general statements relating to the ambit of what is there called the war power under the Constitution of the United States of America which are just as wide as the widest construction placed upon the defence power under the - Australian Constitution by any member of this Court, and in particular statements which not only strongly support the views expressed in these judgments in Pidoto's Case (2) and in Reid v. - Sinderberry (11) that in time of war practical questions such as the feasibility of separating industries which are in fact associated with the prosecution of the war from those which are not and the

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Court

Decision date

Before

Source

Judgment (154 paragraphs)

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