R v Commonwealth Court of Conciliation and Arbitration [1942] HCA 39

R v Commonwealth Court of Conciliation and Arbitration [1942] HCA 39 - HCA 1942 case summary — Zoe

[245]

An inclusive definition of " industry " follows that of " industrial matters." Sec. 4 says that " industry " includes any business, trade, manufacture, undertaking, or calling of employers, on land or water. None of these words is apt to refer to the public service of the State. The section further says that industry includes any calling, service, employment, handicraft, or industrial occupation or avocation of employees, on land or water. In the Teachers' Case (1) it was con- tended in argument that engagement in an occupation and not employment in the business or industry of the employer is the feature of this part of the definition of industry. This observation was made on that contention: '' But even if this be so, the definition cannot enlarge the meaning of the phrase ' industrial dispute' in the Con- stitution, and the occupation must be of an industrial nature" (2). The Court was of the opinion that the occupation of State school teachers is not industrial, because it is impressed with the character of the activity in which the teachers exercise their occupation, which is not an activity within "the sphere of industrialism." A con- tention which is now made is that in that case the Court said teach- ing was not an industrial occupation and it did not decide that the second part of the definition means that "industry " includes any calling, or service, or employment, or handicraft, or industrial occupation or avocation ; another contention which is now made is that the Court read down the definition - interpreting it to apply only to employees within the industrial system - because Parliament should not be presumed to have exceeded its legislative powers, which under sec. 51 (xxxv.) are limited to "industrial" disputes. The force in this last contention is that, in so far as the defence power extends to regulating relations between employers and employees, it is not subject to the limitation in sec. 51 (xxxv.), and that there is no need to read down the definition of industrial dispute when it is written into the Regulations in accordance with sub-reg. 2 of reg. 2 in order to keep the regulation within constitutional power. It is true that the Court did not say in the above-mentioned case that the second part of the definition of industry applying to employees does not extend beyond industrial pursuits, but it is also true that it did not decide that this part of the definition literally extends to industrial and non-industrial pursuits. In my opinion the effect of the second part of the definition of industry is to indicate what

[269]

demonstrate the variety of laws which may be validly made in the exercise of the defence power of the Commonwealth. A list of those decisions is given in Andrews vy. Howell (1), and to those decisions that case and South Australia v. The Commonwealth (2) should be added. It is not correct that the defence power has no bounds. Hence in Farey v. Burvett (3) a test is proposed for determining whether a law made in circumstances comparable with the present emergency is a valid exercise of the power. "If the measure questioned may conceivably in such circumstances even incidentally aid the effectuation of the power of defence, the Court must hold its hand and leave the rest to the judgment and wisdom and discretion of the Parliament and the Executive it controls - for they alone have the information, the knowledge and experience and also, by the Constitution, the authority to judge of the situation and lead the nation to the desired end." That test was relied upon to justify the sub-regulations which are assailed in this action. It is necessary, if this test is to save them, that it should appear that they may con- ceivably in the present grave emergency even incidentally aid the effectuation of the defence power. There is no relation on their face with national defence. The question then is whether the Court can reasonably infer - in this case its only guidance is the text of the sub-regulations - that they might aid in an appreciable degree the effectuation of the defence power. So far as regards the members of the public service who are not engaged in work connected with the war, there are no reasonable grounds for the inference that the sub- regulations might have that result. Nothing better than a relation, which appears to me to be a fanciful one, could be suggested in argument between the sub-regulations and national defence. It was suggested that discontent among persons engaged on war work, or work connected with the war, on days ordinarily observed as holidays would be avoided if persons engaged on work of any kind were required to work on those days. There is nothing to warrant the Court in reaching that conclusion. The content of the defence power is not to be whittled down by applying any more stringent test than the above-mentioned test which was propounded in Farey v. Burvett (4), but if a regulation fails by that test it is the duty of the Court to say that it falls outside the powers conferred by the provisions of sec. 5 of the National Security Act 1939-1940, pursuant to which the statutory rules embodying the sub-regulations which are attacked in this action were made. For these reasons I think the demurrer should be overruled.

[291]

It remains to discuss the questions raised in the action. Statutory Rules 1942 No. 242 was passed on 28th May 1942. It repealed regs. 29 and 44 of the National Security (Supplementary) Regulations and inserted a new reg. 29. This new reg. 29 was subsequently amended by Statutory Rules 1942 No. 282 made on 25th June 1942, No. 407 made on 23rd September 1942, and No. 422 made on Ist October 1942. Sub-reg. 1 provides that the employer, manager, or occupier of every establishment, factory, mine, dockyard, or workshop, which is engaged wholly or partly in production for war or defence purposes, or in the repair or overhaul of munitions of war, and every Common- wealth or State department, or authority of the Commonwealth or of a State engaged on work associated with the prosecution of the war, shall, on every day to which this regulation applies, carry on such production, repair, overhaul or work in the same manner and to the same extent as would be the case if that day were an ordinary working day. Sub-regs. 2, 3 and 4 provide that an employee engaged on any such production, repair, overhaul or work on any day to which the regulation applies shall become entitled to compensation, that where he is not entitled under any law to compensation he may apply to any tribunal or authority having jurisdiction to determine disputes or claims in respect of rates of pay or conditions of employ- ment in relation to work on which the employee is employed or any Conciliation Commissioner to determine the compensation, and that an employee shall be entitled to sue for and recover in any court of competent jurisdiction any payment to which he is entitled under the determination. Sub-reg. 7 provides that the day to which the regulation applies means any day before Ist December 1942 which, by virtue of any law of the Commonwealth or any State, is to be observed as a holiday or public holiday at the establishment, factory, . mine, dockyard or workshop or the place at which the department or authority carries on its functions. Sub-reg. 8, added by Statutory Rules 1942 No. 407, provides that the foregoing provisions of the regulation shall, in respect of the State of Victoria, apply also, on the last Thursday in September 1942 (being Royal Agricultural Show Day), to employers and managers (being persons engaged in the business of banking or of insurance) and to every Commonwealth or State department, or authority of the Commonwealth or of a State, engaged on any work whatsoever and to all employees of any such employer or manager and to officers and employees of any such department or authority. Sub-regs. 9 and 10, added by Statutory Rules 1942 No. 422, provide that (9) if under any law an employee in the State of Victoria would have been entitled to a holiday on the first Tuesday in November 1942, had that day been

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Judgment (309 paragraphs)