R v Boot Trade Employes Federation [1910] HCA 33

R v Boot Trade Employes Federation [1910] HCA 33 - HCA 1910 case summary — Zoe

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be valid. It assumes that the Court can override the decisions of Wages Boards, and the term State industrial authority is so defined. The whole scheme of the Act is a consistent one, and depends for its fulfilment on the exercise of legislative powers in various directions. [He referred to secs. 29, 38 (f ), 39, 80.] If the common rule provisions are eliminated the Act is unwork- able. The legislature has coupled the two powers, first, to make an award between the parties to the dispute, secondly, to make the award apply to the industry. The second power is given to rectify the injustice which may arise from the exercise of the first. It must be inferred that the legislature would not have granted one without the other. The arbitration is compulsory, If the common rule power cannot be granted, the legislature might have chosen to adopt voluntary arbitration. The Court will not conjecture what alternative the legislature would have selected. What has to be shown is that the various provisions are connected in subject matter, meaning, or purpose. The common rule provisions are so connected with the rest of the Act as to be inseparable from it. To say that, lopping off the invalid provisions, the legislature would have passed the Act in its mutilated form is to ask the Court to make a new Act. The legislature must have recognized that the President would be influenced in framing his award by the knowledge that he has power to grant a common rule. This alters the character of the power exercised. It is assumed for the purpose of this argument that industrial dispute includes an isolated dispute between indi- viduals. If it means a dispute involving all persons engaged in the industry, the uecessity for a common rule would not arise. But its meaning has never been put as wide as that. It may not be possible to effectually settle a dispute without. the common rule. There are no common rule provisions in any Act passed prior to the date of the Constitution. See. 38 (1), when read

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and inter-State trade, and also with the domestic trade of a Sta There, as indeed we have held, if and so far as the invalid visions are severable in sense from the valid ones, the Act may} heldjgood irrespective of the domestic trade provisions, if tl severance leaves intact a consistent, workable, and effective body of provisions dealing with that external and inter-State trad which is the authorized part of the whole subject matter, And take it that the validity of so much of the Act would depend, no on any view we might hold as to what Parliament would hay done in an event which did not happen, but on the fact that withi the compass of the whole Statute and apart from the provision challenged, there lies a set of enactments forming an intellig and efficient exercise of the real power. Before applying this test we must ascertain the limits of th power in sec. 51, clause (xxxv.) of the Constitution. I re-affirm without any lengthy citation, what was said by the majority of the Court in the Woodworkers' Case (1) as to the principles on which clause (xxxv.) must be construed, and as to the primary meaning of "arbitration." "Conciliation and arbitration for th prevention and settlement of industrial disputes" mean plainly to my mind, such conciliation and arbitration as at the time 0 the enactment of the Constitution had become applicable to prevention and settlement of such disputes, That is, I think, th "everyday " or ordinary meaning of the terms. Leaving aside conciliation, with which we are not now concerned, and whieh does not affect the present question of construction, what was at that time connoted by arbitration to settle industrial disputes, to call it by its synonym, industrial arbitration? Clearly it did not include a power to the arbitrator to regulate the particulat trade. That would be giving the tribunal a power to legislat which no torture of words can twist into arbitration. The arbi- tral tribunal must at any rate be judicial and not legislative. - must, therefore, act on the ordinary principles of justice involved in the necessity of allowing a hearing to all parties to the differ ence on which it must decide, and of abstaining from involving in its decision interests of others than the parties to the diffe ence. It is not absolved from this duty by the fact that a Stat (1) 8C.L.R., 465.

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whether this Court can entertain a motion for prohibition against the Commonwealth Court of Conciliation and Arbitration, His contention was that the High Court has no general supervising jurisdiction over the decisions of inferior Federal Courts, as the superior Courts in England have over inferior Courts under the English judicial system, but that its sole corrective power is that which the Constitution has expressly conferred on it, namely, by way of appeal, and that in respect to awards of the Commonwealth Arbitration Court Parliament has expressly taken that right away. The cases cited in the course of the argument throw very little light on the question. The matter must be determined by construing the relevant sections of the Constitution and of the Judiciary Act. Sec. 71 of the Constitution declares that the judicial power of the Commonwealth shall be vested in the High Court of Australia, or in such other Federal Courts as the Com- monwealth may create or invest with federal jurisdiction. The Constitution itself creates the High Court, and by sec. 73 ex- pressly invests it with certain appellate jurisdiction. But all the judicial power of the Commonwealth is not disposed of by that section. The judicial power which sec. 71 declares shall be vested in the High Court is the supreme judicial power of the Commonwealth, and it must necessarily include the power to keep inferior Courts of the federal judicial system from exceeding their jurisdiction. That power is in its nature original, not appellate, but it may be conferred in either form, and it has, in my opinion, been conferred as original jurisdiction in sub- sec. (Y.) of sec. 75. It was expressly inserted in the Constitution by its framers, no doubt for more abundant caution, to prevent the question arising which was decided by the Supreme Court of the United States in Marbury v. Madison (1). It has been objected that the words "officer of the Commonwealth" in sub-sec. (v.) were not intended to include the holder of a judicial office. The use of the word " prohibition" in itself implies that the officer referred to may be an officer exercising judicial or quasi-judicial functions. Giving the words their ordinary meaning, they would include all officers of the Commonwealth, judicial as well as non-judicial, and neither in the group of sections dealing with the judiciary, nor in

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contention is examined it amounts to this: The word "arbitr tion" may be properly used to describe a statutory arbitral tribunal to which a party may be compelled to resort, or to deseribe a tribunal constituted without his choice if he make default in exercising his right of choice, but that it has never been, and cannot properly be. used to describe a method of deter- mination by an arbitral tribunal in the constitution of which the disputants have not a right of choice if they chose to exercise it, The legislative history of arbitral tribunals under British law completely disposes of that contention. 'Taking the word arbitra- tion generally, apart from its relation to industrial disputes, it is abundantly clear that it bas been used in English legislation for the last sixty years to describe a method of deciding issues by arbitral tribunals, resort to which was compulsory, and in the constitution of which the disputants had no choice. The list of English Statutes to which attention was called by my learned brother Isaacs in the course of the argument, together with those referred to by Mr. Duffy, completely establish that position. But when we have regard to the use of the word "arbitration " in con- nection with the settlement of industrial disputes, it becomes still plainer that at the time when the Constitution was being framed by the Convention there was in Australia and New Zealand a - well recognized use of the word as describing permanent public - arbitral tribunals for settlement of industrial disputes, constituted not by choice of the parties, but by public authority. In my opinion, therefore, the Parliament of the Commonwealth, in creating a standing Court of Arbitration for the prevention and settlement of industrial disputes, constituted by an arbitrator appointed by the Government, were acting within the powers con- ferred by the Constitution. Mr. J7vine's other objection raises an exceedingly important question. He contends that the authority which the Act vests in the Commonwealth Arbitration Court, to make an award a common rule in an industry, is beyond the power conferred by the Constitution. The argument is based on the position that the foundation of the power conferred by sub- sec. (xxxv.) of sec. 51 is the existence of an industrial dispute, that no authority is thereby given to regulate trade generally, - and that it confers no authority to deal with the relation of ;

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) has the effect contended Prohibition to another Court is, in my opinion, not original, but diction. All judicial jurisdiction is either criginal or appellate: see Lord Halsbwry's Laws of England, vol. 9, Proceedings on the Crown side of the King's Bench Division in England, which include applications for prohibition, are part of the appellate jurisdiction: see the same volume, p. 59. Thisis such an application. Mr. Justice Story, in his Commentaries, se 1761 says : - "The essential criterion of appellate jurisdiction is, that it revises and corrects the proceedings in a cause alrea instituted, and does not create that cause. In reference to judi tribunals, an appellate jurisdiction, therefore, necessarily implies, that the subject matter has been already instituted in and acted upon by some other Court, whose judgment or proceedings are to be revised." That precisely describes such a case as the present. Original jurisdiction in which the cause is created, cannot, conceive, include a proceeding which has for its sole object the prohibition to another tribunal against the further proceeding with the very cause of which it has already assumed cognizance. It is to me inconceivable that the Constitution would have expressly permitted this proceeding to be excepted from the appellate power to which it belongs, and yet have irrevocably conferred it as original jurisdiction to which it is really foreign, and not as controlling a Court, but merely an officer. How far such a power might be exercised as incidental to a cause other wise properly arising in original jurisdiction I offer no opinion, There may possibly be such a power, and if the question should ever arise, such a case as Great Western Railway Co. v. Waterford and Limerick Railway Co. (1), will merit consideration in that connection. I would add with reference to sub-see. (b) of sec. 33 of the Judiciary Act 1903 that the power there given must be exercised within the range of the original jurisdiction conferred

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and to which it is expressly restricted, and the only original H. C. or A. jurisdiction possessed by the Court is that contained in sec. 75 of es the Constitution, and sec. 30 of the Judiciary Act. Rex The next question in logical order is the validity of the Con- Cou: ciliation and Arbitration Act. That is challenged on two MowwrautH Ss cat i is , . COURT OF grounds. It is said in the first place that it is radically unconsti- Coxcruatios tutional and illegal, because the tribunal is altogether compulsory, agppmnerioy. leaving no possible choice of arbitrator or arbitrators to the = 3 cae EX PARTE parties. It is urged that the word "arbitration" connotes such Wuynrow a possible choice. I do not agree with that. In the Bootmakers' © Case (1) Ihave fully indicated my view of the import of the - les J. word "arbitration" so far as was material in that case. The present phase did not then arise. But I apply the same line of reasoning to this aspect also. Arbitration is I conceive correctly defined by Lord Trayner in McMillan & Son Ltd. v. Rowan & Co. (2) in these tvords : - * An agreement to submit to arbitration simply means that the parties have agreed to have their differ- ences determined otherwise than by a Court of law, but does not even suggest whether the Court they have chosen for themselves shall consist of one member or many or how many members." The essence of the matter then is that the differences wre to be decided otherwise than by a Court of law. So long as that essential feature is preserved, Parliament is free to provide the constitution of the tribunal, and to say whether or not the parties to the difference may or may not have a voice in its selection. This appears really incontrovertible when it is remembered that the chief object of the constitutional power was to maintain industrial peace for the benefit of the community at large, and was, therefore, not introduced for the sole purpose of determining or averting a private quarrel concerning only the immediate parties. The trouble or possible trouble being public, and probably urgent, Parliament acting for the public is entrusted with the power to appoint a tribunal, and at once, which it thinks will act fairly between all parties concerned. It is, however, contended that this view is barred by what is called the every- day conception of the term arbitration. But where is there found any definite every-day import other than that I have indicated ? (1) 10 C.L.R., 266. (2) 40 Se. L.R., 265, at p. 267. VOL. XI. 4

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of these deeds within the claim is an entirely different question from the justice of an award which disregards them ; but that depends wholly upon the circumstances. And not only do I think on the bare construction of the document, that existing deeds were intended to be within it, so as to have one consistent system of remuneration, and other conditions for all the industrial ¢o- operators, but the evidence discloses the fact of strong suspicion on the part of the employés, well or ill-founded I do not of course say, that in a large number of cases at all events apprenticeship deeds were not fair either to ordinary employés or the appren- tices themselves, and were mere cloaks for evading State pro: visions for reasonable conditions of industry. Then as to the second branch - age and experience - I thoroughly agree wi what Judge Heydon said in Shop Assistants' Union v. Master Retailers' Association and Mark Foy (1), that the scales of pay- ment to apprentices cannot be based on either age or experience alone, but that these must be combined. His Honor says : - ' scale based on experience alone is therefore out of the question But so is one based on age alone, for a sufficient amount of knowledge and experience is also absolutely necessary." Need- less to say, I do not make these observations with any view the merits, but to show the recognized inherent nature of the subject. This throws great light on both the claim and the award. The claim (clause 6) obviously combines age and experi- - ence ; so does the award, because it is plain you could not under the award have a lad enter the service at 18 for the first time - that is as a lad, and at lad's wages. So far as that objection is concerned I also reject it, and hold that it was competent to the learned President to regard, as he has done, both age and experi- ence. It is quite immaterial how these elements are relatively placed, or which one is expressly named so long as both have the necessary operation,

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