R v Commonwealth Conciliation and Arbitration Commission; Ex parte Amalgamated Engineering Union - [1967] HCA 47 - HCA 1967 case summary — Zoe

CTHHCA

R v Commonwealth Conciliation and Arbitration Commission; Ex parte Amalgamated Engineering Union

[1967] HCA 47

High Court of Australia|1967-07-01|Before: Windeyer JJ

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Court

High Court of Australia

Decision date

1967-07-01

Before

Windeyer JJ

Source

Original judgment source is linked above.

Judgment (137 paragraphs)

[1]

High Court of Australia Barwick C.J. McTiernan, Kitto, Taylor, Menzies and Windeyer JJ. R v Commonwealth Conciliation and Arbitration Commission; Ex parte Amalgamated Engineering Union (Australian Section) [1967] HCA 47

[2]

The problem presented to the Court in these cases is no more than the proper construction of certain sections of the Conciliation and Arbitration Act 1904-1966 Cth (the Act). The claim of the prosecutors in each of the applications is that upon its proper construction the Act requires the Commonwealth Conciliation and Arbitration Commission (the Commission), in settling a dispute as to the amount of wages to be paid in an industrial employment, first to determine a sum which will form part of the wage to be prescribed in settlement of the dispute and which is a just and reasonable sum for an adult male to be paid, without regard to any circumstance pertaining to the work upon which, or the industry in which, he is employed, and thereafter to fix an additional payment, commonly called a margin, to represent the particular work value of each classification of work in the particular industrial employment. The point at issue is in reality a narrow one, namely, whether or not the Act directs an exclusive method of determining the appropriate wage to be paid in industrial employment in the settlement of an industrial dispute. But to understand the argument which has been pressed upon the Court in support of the applications, it is necessary to make a brief excursion into some aspects of the history of the settlement of disputes as to industrial wages by the Court and the Commission operating under successive conciliation and arbitration statutes passed under and within the power given to the Parliament by s. 51 (xxxv.) of the Constitution. Before doing so, however, I ought to refer to the circumstances in which the applications come before the Court.

[9]

At the same time as he gave the direction as to the hearing of the application to vary the margins, the President, at the instance of the employer organizations, directed that Part B of the employers' log be heard by the Commission in Presidential Session as well as the employee organizations' application for an increase in the basic wage; and that Part A of that log should be heard by a Full Bench of the Commission to which he referred that part of the log pursuant to s. 34 of the Act. In giving these directions, the President expressed himself as follows: "It is apparent this year as it was last year that those portions of the employers' claims which seek an alteration of the basic wage must, pursuant to s. 33 of the Act, be dealt with by the Commission in Presidential Session and I am of that opinion. However, if no direction was given by me the position would be that those portions of the employers' claims which did not seek an alteration of the basic wage would be dealt with by the Commissioner concerned, namely Mr. Commissioner Winter, and it is in respect of those portions of the claims which Mr. Robinson now, by his oral application, seeks to have referred by my direction to a Full Bench of the Commission constituted pursuant to s. 34 of the Act. The grounds of the said oral application for reference, were that those last portions of the dispute created by the employers' claims were of such importance that, in the public interest, they should be dealt with by a Full Bench. Mr. Hawke, on behalf of the Sheet Metal Working, Agricultural Implement and Stove Making Industrial Union of Australia, and the representatives of the other unions, conceded that those portions of the employers' claims were of such importance that they should be dealt with by a Full Bench of the Commission. I am of opinion that those portions of the dispute in respect of which Mr. Robinson has made his oral application for reference are of such importance that, in the public interest, they should be dealt with as provided by s. 34 of the Act, namely, by the Commission constituted by not less than three members of the Commission nominated by the President, at least one of whom is a presidential member of the Commission and one is, where practicable, the Commissioner concerned and, having regard to the reasons for the application, I direct accordingly."

[26]

Although the Commission was not, and indeed could not be, empowered to make a common rule for the payment of wages in industry, the basic wage which it thus determined from time to time in particular disputes came to be regarded in the community generally as a reference point for the determination of the wage to be paid in various circumstances of employment or as a base by reference to which to determine the amount of, and variations in, costs or charges. This became true, not merely of the system of wage regulation by the settlement of industrial disputes through the Commission, but also of systems of wage fixation by State tribunals. Further, private arrangements between employee and employer outside the terms of any award or of any industrial determination of wage levels were also influenced by it. Also it seems that it came to be regarded in the community as a minimum, as distinct from a basic, wage though in truth it was not. Few employees whose wages and conditions of work were prescribed by Commonwealth awards were covered as to wages only by that part of the award which ordered the payment of the basic wage. Although the awards have taken the form of ordering its payment, in fact it is not, except perhaps in isolated cases, a wage which as a separate sum is in the final analysis required to be paid. The awards bind only the named employers or organizations of which they are members and, in general, there is no classification of work under an award for which the basic wage is the resultant wage to be paid. In other words, generally, though not universally, there is some margin above the basic wage for every classification of work performed in the industry. Also, apart from the minimum sums prescribed in awards, over-award payments by employers have long been the order of the day. It is quite clear that in any case the amount of the basic wage was not fixed by the Commission merely as a minimum wage. It was determined as a component of all wages covered by the award and its amount affected the marginal sums prescribed. This consideration appears to have been in the mind of the Commission in its recent decision, for in his pronouncement the President said: "The minimum wage will give better protection to those whose needs are greatest, namely, those whose take-home pay would otherwise be below the standard assessed by the Commission and will give the Commission more flexibility in assisting them because we will have more scope to give them special consideration." That is to say, a minimum wage can be fixed considering solely the position of the worker who for want of skill and circumstance can demand no more than the minimum. What is awarded for him will not form any element in the amount fixed for other workers, and it can be separately reviewed without any necessary consequence upon other wages.

[64]

What the order purports to do is to determine the industrial disputes to which it refers, to the extent of its intended operation. One of those disputes was solely about the amount of the margins in the award. This dispute having been referred pursuant to s. 34 (3.) from the Commissioner to the Reference Bench which made the order in question, they had power under s. 34 (4.) to hear and determine such matter. The other dispute involved two matters. One was whether the existing wage structure of the award, which consisted of a basic wage plus a margin should be maintained. The second matter was a dispute formulated on the basis that such a structure would continue. The Commission in Presidential Session dealt with the latter matter together with a separate dispute raised by the unions as to the sufficiency of the amount of the basic wage which was the foundation of the wage structure. To return to the former matter involving the continuance of the existing wage structure, it was as to this matter that the Commission in Presidential Session gave their opinion that a Commissioner was empowered to deal with it. This matter was referred to the Reference Bench pursuant to s. 34 (3.). The power of this Bench to hear and determine it rested on s. 34 (4.). The order under consideration relates to both matters referred to the Reference Bench. What the order does is this. It deletes from the award all basic wages and margins, and in lieu fixes a total wage for each employee. The basic wage eliminated from the award was an amount expressed to be the basic wage estimated by the Commission in accordance with the formula enacted in s. 33 (1.) of the Act. The total wage includes the sum of the amount of the basic wage and the margin previously paid to an employee under the award. The amount is paid as a valuation of his work. Neither the entire wage nor part of it is estimated in accordance with the formula mentioned above. It is not severable into basic wage and margin. A condition of the award as varied, chosen from the award as it was beforehand, is that no wage must be less than a prescribed minimum. This wage is a different entity from the basic wage without the addition of a margin. I am of opinion that the order in question does not alter any amount which was expressed in the award to be a basic wage. Indeed, it operates according to its terms. The order increases the original rate of the minimum wage by $1; it also increases the sum of the amounts which were formerly basic wage and margin by $1. It is not possible to regard the sum of these amounts as the basic wage and the addition as a margin. In the case of R. v. Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust.) Ltd. [1] the Court observed: "The term "basic wage" is sometimes used as if it were equivalent to "minimum wage" or "living wage". When an industrial tribunal determines that the basic wage shall be an amount which is prescribed because it is a living wage, and also that no lower amount shall be paid by way of wages, the basic wage, the living wage and the minimum wage are all identical in amount. But the meaning of the terms is nevertheless not the same. The basic wage is a wage which is basic in that it forms the basis or foundation of a wage structure. Where there is an applicable award and a wage is prescribed for a male adult unskilled labourer to which additions are made to remunerate skill or otherwise to differentiate between workers, that wage is the basic wage as determined by that award" [2] .

[74]

In November 1965 the unions applied to the Commission for a variation of the award with respect to the margins, and in January 1966 the employers' organizations notified the Commission of a dispute arising out of two alternative demands which they had made upon the unions; namely, (A) that existing basic wage rates and marginal rates be aggregated into total wage rates, to which should be added one and one-half per cent of the total rates; and (B) that existing basic wage rates should be increased by three shillings, marginal rates by one per cent, and the resulting figure by one-half per cent thereof. This dispute and the unions' application with respect to margins were partly dealt with in 1966, the basic wage being increased by the Commission in Presidential Session, and the margins being increased and the minimum wage provision being inserted by a Reference Bench; but both matters came on for further consideration in 1967. By this time the unions had made an application for a variation of the award by increasing the basic wage, and all three matters were argued together before a joint session of the Commission. Separate decisions, however, were given, as they had to be, by the Presidential Session and the Reference Bench respectively. The Commission in Presidential Session dismissed the unions' application for an increase of the basic wage. The Reference Bench settled the dispute arising out of the employers' claim for a total wage by deleting, from the award, the clauses which respectively prescribed a basic wage and margins, and putting in their place a prescription of a total wage for each classification of employees, arriving at such total wage by two steps: first, by doing what formerly had been left to be done as an exercise in the application of the award provisions to individual employees, namely, adding together the former basic wage and the margin appropriate to the classification, and, secondly, by adding $1 per week to the total. An addition of $1 was likewise made to the minimum weekly wage for adult males.

[78]

If the only question were whether an award departing from Part (A) of the employers' demand by adding to the aggregate of basic wage and margins $1 instead of one and one-half per cent was within the power of the Commission generally in dealing with the dispute, the answer of course would be that it was, because such an award is an appropriate means of settling such a dispute. Moreover, if the new award had stopped at aggregating the basic wage and each classification's margin, it would not have been an award altering that part of the wage (of each classification) which fell within the definition of "the basic wage", for the definition applies to any such part whether or not it be segregated in the award. The basic wage ingredient in the total wage would have satisfied the definition as completely as ever it did. Again, if the award had accorded with the employers' claim, adding one and one-half per cent to the aggregate amounts of basic wage and margins, it might have been thought that the addition, though made on general economic grounds only, was in its nature so tied to the aggregate amounts that no part of it could be separately identified as an addition to the basic wage component of those aggregate amounts. The opinions given by the President and the Presidential Session, it must be remembered, related to that claim. But what the Reference Bench did, in fact, was to make an addition of an amount having no inherent relation to the total to which it was added or to either of the components of the total; and the announced reasons for the adoption of this course showed beyond question that the addition had been arrived at as being just and reasonable for an adult male (or female) without regard to any circumstances pertaining to the work upon which, or the industry in which, he (or she) was employed. The only circumstances taken into account at all were circumstances of a general character. They were described as predominantly economic, and as including the questions of adjustment for price movements, of price stability, of productivity movements, and of economic capacity to pay - all in relation to the economy of the country generally and not of the particular industry. The necessary result, as it seems to me, was that the part of the total wage which thereafter answered the statutory definition of "the basic wage" was larger than that which formerly answered it, and consequently that the new award was in fact an award altering "the basic wage". It is true that the announced reasons treated the decision as a decision against adding to the basic wage on the one hand and in favour of expressing the increase in a total wage on the other; but its effect nevertheless was to increase that part of the total wage which s. 33 (1.) requires us to recognize as the basic wage. It is quite impossible, in view of the definition, to treat the identification of "the basic wage" as depending in any degree whatever upon the presence or absence of the label "basic wage" in an award. There seems to me to be only one valid way in which to test whether a new award is one "altering the basic wage", and that is to ask three simple questions: (1) Did any part of a wage, prescribed in respect of a person or classification by an award which was in force up to the commencement of the new award answer the statutory description of "the basic wage"? (2) Does any part of a wage so prescribed by the new award answer that description? (3) If yes to (1) and (2), is there any difference in amount between those parts?

[85]

The opinions I have expressed, if correct, would entitle the unions to succeed in their present applications for prohibition were it not that by s. 60 (3.) it is provided that an award shall not be called in question in any way on the ground that it was made by the Commission constituted otherwise than as provided by the Act. If given full literal effect, this provision would reduce sub-ss. (1.) and (2.) of s. 33 to the level of merely directory provisions which might be ignored without legal consequence. Sub-sections (3.) and (4.) strongly suggest the contrary intention, though it will be observed that there is no provision resembling either of these sub-sections in relation to a question of power arising before a Reference Bench. It could not be sound to construe s. 60 (3.) as an attempt, necessarily ineffectual as it would be, to deprive this Court of the jurisdiction given by s. 75 (v.) of the Constitution. The problem, therefore, is to reconcile s. 60 (3.) with s. 33. In other contexts a problem of this general kind is solved by construing the privative provision as having a validating operation where, but only where, three conditions are fulfilled, namely that the purported exercise is a bona fide attempt to exercise the power, it relates to the subject matter of the legislation, and it is reasonably capable of being referred to the power (i.e. does not on its face go beyond the power): R. v. Hickman; Ex parte Fox and Clinton [1] ; R. v. Metal Trades Employers' Association; Ex parte Amalgamated Engineering Union, Australian Section [2] . A similar solution is, I think, sound in the present context, and the three conditions are in each case satisfied. In the Metal Trades Case, the Reference Bench obviously made its award in good faith and upon a matter within the scope of the legislation, and the fact, as I believe it to be, that the result was to alter "the basic wage" did not appear on the face of the order that was made. On the contrary, that fact is discoverable only by means of an analysis made possible by resort to two other sources of information, namely the earlier award and the announcement of reasons by the joint session of the Commission. In the case of the Vehicle Industry Award the condition of bona fides might well have been unsatisfied if the question of the Commissioner's power had been raised before him in other circumstances and he had deliberately failed to refer the question to the President; but the course of events was such that he had every reason to believe, and obviously did believe, that he was empowered to make the award. In the case of the Uranium Mining Industry (Northern Territory) Agreement the question of power has been raised and no award has yet been made; but while it is true that according to the views I have expressed the question should be referred to the President, and the correct opinion for him to give would be that the matter is one not for a Commissioner but for a Presidential Session, it must be kept clearly in mind that the Act makes the President's opinion the criterion of power, and it would be wrong to prohibit the Commissioner from proceeding while the possibility remains that he may obtain from the President an opinion favourable to his power and operating, by virtue of s. 33 (4.), to give validity to what he does. An intervention by this Court could not be justified, unless of course it were by way of mandamus to refer the question to the President, in the event of a refusal by the Commissioner to do so.

[90]

Ever since the entry of the Commonwealth into the industrial field of conciliation and arbitration it has generally, though not invariably, been the practice of the Commission and its predecessor to prescribe rates of wages by reference to a basic wage, and to prescribe additional marginal payments for different classifications of employment. But the concept of the basic wage appears to have changed somewhat during this period. First of all, it seems to have denoted the "minimum" or "basic" wage sufficient to maintain an average employee and his family in a reasonable state of comfort. It was, in effect, at this stage a "needs" basic wage and, later, it was understood to mean a reasonable living wage. In later years a more liberal concept has developed and it seems now to denote the highest minimum wage for an unskilled worker which the state of the nation's economy can afford. Having regard to the content of the relevant legislative head of power there is not and, of course, there could not be, legislation requiring the payment of a specific sum of money as a "minimum" or "basic" wage. Nor would it be competent for the Commission to make a common rule so to provide. But in practice uniformity in the basic wage in industries in which conditions of employment are regulated by federal awards has, in general, been achieved, first of all, through the medium of what have been called basic wage inquiries conducted at intervals between 1930 and 1964. The history of these inquiries is briefly set out in the Commonwealth Year Book 1966 at pp. 364 to 367. Then after the conclusion of each basic wage inquiry the Commission has adopted the basic wage as declared as a basic element in individual awards fixing rates of wages. Since 1964 the place of the basic wage inquiries has been taken by what are called the National Wage Cases each of which has involved the reconsideration of the basic wage as between the parties to an award. The relevant inquiry has been as to what wage, or part of a wage which, to use the words of s. 33 of the Conciliation and Arbitration Act "is just and reasonable for an adult male, without regard to any circumstance pertaining to the work upon which, or the industry in which, he is employed". I observe that, whilst it may be accepted that the prescription of such a basic wage together with marginal payments for different classifications represents one method by which rates of wages may be fixed, the ascertainment of what wage is just and reasonable for an adult, without regard to any circumstance pertaining to the work upon which or the industry in which such persons are employed, is by no means a necessary or indispensable step when a tribunal comes to decide what the minimum rates of wages shall be in an industry where the employees are engaged in work of various classifications. Nor can it be said that, when rates of wages are fixed without regard to this concept of the basic wage, the lowest rate prescribed for an unskilled worker in the industry must be taken to be, in the sense in which the expression has been used, the "basic wage". It may be a wage considered to be just having regard to the circumstances pertaining to the work upon which or the industry in which the worker is employed though no doubt, in fixing the rates of wages, the economic value of money would, among other things, be a material factor.

[106]

The first thing that may be said about this section is that, like its predecessors, it recognizes the existing practice employed by the Commission in fixing rates of wages and, clearly enough, in the interests of uniformity, it reserved to the Commission in Presidential Session exclusive authority to make awards which had the effect of altering the basic wage in an industry. But it is not a provision which confers, or was intended to confer, authority on the Commission; a general authority to determine disputes by the making of awards is already conferred by s. 32. This is acknowledged by the opening words of s. 33 (1.) which, together with sub-s. (2.), then proceeds to distribute the powers and functions of the Commission in a mutually exclusive fashion between the Commission in Presidential Session and the various Commissioners, which expression includes also a presidential member of the Commission dealing with a particular dispute (s. 22). But does s. 33 do more than this? The prosecutors assert that it does and that it also regulates the manner in which the Commission is to proceed in fixing rates of wages. That is to say that, in effect, it provides that the so-called basic wage shall constitute a basic element in every award fixing rates of wages. But the section certainly does not expressly so provide and I can see no basis for any such implication. No such implication is necessary in order that the section should have an effective operation, and it seems to me that to make such an implication would be foreign to the object and purpose of the provision. It merely recognizes existing practice and is intended to achieve as much uniformity as possible in the application of that practice. But that is not all. Sub-sections (3.) and (4.) of s. 33 contain provisions intended to deal with situations where doubts have arisen as to whether an award which is necessary for the determination of a particular dispute is one which is comprehended by sub-s. (1.) or by sub-s. (2.). Sub-sections (3.) and (4.) are as follows:

[120]

The submission that a basic wage must always be determined when a wage is being fixed by the Commission rested upon those provisions in s. 33 (1.) which commit to the Commission in Presidential Session the power of the Commission to make an award altering the basic wage. This provision impliedly requires, so it was argued, the making of every award fixing wages in terms which would enable the Commission in Presidential Session to make an award altering it in the exercise of this power. To read s. 33 (1.) as requiring this is, in my opinion, to take more from the sub-section than it contains. It must be read with s. 33 (3.) and (4.) and s. 60 (3.). Reading these provisions as a whole they have, I think, a like character to that attributed by this Court to s. 13 of the Conciliation and Arbitration Act 1904-1951 in Reg. v. Blackburn; Ex parte Transport Workers' Union of Australia [1] , viz. provisions in which the criterion of power to exercise jurisdiction is not the true meaning and application of s. 33 (1.) (b) but rather, in the event of any question being raised before the Commission in Presidential Session or before a Commissioner is the opinion of the Commission in Presidential Session (s. 33 (3.)) or the President of the Commission (s. 33 (4.)) as the case may be. This being the character of s. 33, it is hardly to be supposed that it has hidden within it a far-reaching restriction upon the overall powers of the Commission to fix wages in the settlement of a dispute in an industry. Furthermore the natural meaning of the language used in s. 33 (1.) (c) does no more than stipulate that where there is a dispute in an industry which relates to the alteration of the basic wage for that industry that dispute, or, that element of the dispute, if more is involved, is to be determined by the Commission in Presidential Session. If an award determining an industrial dispute and fixing wages in an industry contains no provision determining a basic wage, there cannot be a dispute subsequently about the alteration of the basic wage in that industry, and s. 33 (1.) would have no operation if, and when, a dispute arises about the variation of the wages fixed by that award. I have found no justification for deciding that every award of wages must be so framed, that when it comes to be altered, either the whole or a part must be altered by the Commission in Presidential Session.

[122]

It was, however, further argued that the award made by the Commission (Gallagher and Moore JJ. and Commissioner Winter) by variation dated 5th June 1967 - No. B. 2201 - altered the previously existing basic wage. The contention that it did so was put in two ways. First, that cl. 3 - fixing a minimum wage - is an identifiable basic wage which differs from the previously existing basic wage and could therefore in conformity with s. 33 (1.) (b) be made only by the Commission in Presidential Session. It does not appear, however, either expressly, or, by necessary implication, that the "minimum wage" was something fixed by the Commission as the wage or part of the wage "just and reasonable for an adult male, without regard to any circumstance pertaining to the work upon which, or the industry in which, he is employed". The Commission, indeed, expressly denied that character to the minimum wage which it fixed, and it is not easy to see why a minimum wage calculated by adding $1 to the minimum wage fixed by the Commission on 8th July 1966 as part of an award which itself fixed a different and lower basic wage eo nomine, should now be stamped by this Court with the character of a basic wage fixed by the Commission on 5th June 1967. There is, in my opinion, nothing to warrant such a conclusion. Secondly, it was claimed that it can be seen that the addition of $1 per week to all existing award wages of adults amounted to an alteration to the basic wage. Previously existing award wages had consisted of two elements, a basic wage and a margin. An application for an increase in the basic wage element was dismissed by the Commission in Presidential Session at the same time as the non-Presidential Commission eliminated basic wages and margins and introduced total wages fixed, as I have said, at existing award wages plus $1 weekly. For the prosecutor it was contended that despite the purported elimination of the basic wage, what was done amounted to an altering of the existing basic wage by increasing it by $1 a week, and that this was done by the Commission otherwise than in Presidential Session and therefore in a manner contrary to s. 33. Although I am satisfied that the reasons given for increasing by $1 a week all award wages and the existing minimum wage do show that the increase was made without regard to any circumstance pertaining to the work upon which, or the undertaking in which, an adult male was employed, I am not able to regard the award that was made as fixing a new basic wage at a figure $1 per week higher than the previously existing basic wage. It is to be observed that it is not the character of the increase that was made that is decisive; what has to be determined is the character of that which was increased, and in my opinion this was not the existing basic wage but the existing award wages as totals. Notwithstanding that the existing award wages had been determined by adding margins to a basic wage, what was increased was not one element in that total wage but the total wage itself. In my opinion therefore the award of 5th June made by the Commission otherwise than in Presidential Session did not alter the basic wage. I should perhaps add that the deletion from the award of the basic wage and margins provisions did not of itself constitute an amendment of the basic wage. It is upon the total effect of what was done that attention must be concentrated in determining whether a new basic wage resulted from the determination of the Commission. I have not been convinced that the Commission did unwittingly the very thing which it set out not to do and the very thing which the Commission in Presidential Session positively refused to do, viz. to alter the basic wage.

[123]

Finally if, contrary to my opinion, this Court were to determine that the minimum wage - or any other sum - had on 5th June 1967 been fixed by the Commission as a new basic wage and one different from that previously existing, the new basic wage, so identified, was nevertheless fixed by an award of the Commission which cannot be called into question. What I have to say about this follows from my earlier analysis of s. 33 (1.) in the light of s. 33 (3.) and (4.) and s. 60 (3.), and I can state my conclusion shortly. It is that the Act treats the question of the constitution of the Commission to hear and determine any particular matter before it as a question for internal determination either by the Commission in Presidential Session (s. 33 (3.)), or by the President of the Commission (s. 33 (4.)), in the event of any question about the constitution of the Commission being raised. If no such question is raised, or, if the question having been raised, the matter is heard by the Commission in Presidential Session or by a Commissioner in accordance with the opinion of the Commission in Presidential Session (s. 33 (3.)) or by the President (s. 33 (4.)), then there is full compliance with the Act. In any event, an award made by the Commission in a bona fide attempt to exercise its powers in the manner provided by the Act cannot be called into question on the ground that it was made by the Commission constituted otherwise than provided by the Act (s. 60 (3.)). It follows therefore that if, contrary to my opinion, the award made by the Commission (Gallagher and Moore JJ. and Commissioner Winter) on 5th June 1967 did effect an alteration of the basic wage by the Commission otherwise than in Presidential Session, this affords no ground for interference by this Court. The President did, I consider, form the opinion that the variation of the Metal Trades Award sought by the employers - other than an alternative and express claim for a variation of the basic wage - was not a matter with which the Commission in Presidential Session was empowered to deal. This appears from the direction of the President given on 27th January 1966. That variation sought therefore became a matter to be dealt with in the first place by a Commissioner, and subsequently by the Commission (Gallagher and Moore JJ. and Commissioner Winter) which heard and determined it in accordance with the direction of the President given under s. 34 of the Act. Furthermore, in any event, the Commission having acted as it did in a matter committed to it and in a bona fide attempt to exercise its powers in accordance with the Act, the award which it made is protected by s. 60 (3.) from attack, on the ground that the Commission was nevertheless irregularly constituted.

[132]

However imprecise the idea of a basic wage may be, and however misleading the phrase itself now is - the idea has for long been meaningful for Australians and the phrase is a familiar part of the Australian vocabulary. The basic wage affects many things apart from wage-fixing. Variations in the basic wage are made the meter for the adjustment of prices and charges under commercial contracts or in contracts of service not governed by awards. Provisions in deeds and wills for the payment of annuities of variable amounts are, I believe, sometimes regulated by the basic wage in force from time to time. State industrial tribunals have accepted from the Commonwealth the idea of the basic wage. State basic wages have generally been, in the past, more or less closely related to the Commonwealth basic wage, which has thus had an influence beyond those industries governed directly by the Commonwealth awards. In words of strength and eloquence the Industrial Commission of New South Wales has recently in its judgment in the matter of the Agricultural Employees (State) and other Awards expressed that tribunal's view of the social significance of the concept of the basic wage. Their Honours said among other things, and they gave illustrations supporting their statement, that "although legally it relates only to awards, its moral influence controls a substantial amount of work outside awards." And in the law of New South Wales, and for all that I know elsewhere, the State basic wage enters into many matters far removed from the relationship of employer and employee. It is a measure or criterion in provisions contained in sixteen Acts, which may be found set out in the First Schedule to the Industrial Arbitration (Amendment) Act, 1964 N.S.W.. In this way, by the interrelation of the Commonwealth basic wage and the State basic wage or "Sydney basic wage", Commonwealth basic wage determinations have, in the past, indirectly affected a variety of matters arising under State law including the attachment of debts, the recovery of leased premises, workers' compensation payments, and cases in which a person is entitled to have the services of the Public Solicitor.