R v Commonwealth Court of Conciliation and Arbitration and the Australian Railways Union [1935] HCA 24

R v Commonwealth Court of Conciliation and Arbitration and the Australian Railways Union [1935] HCA 24 - HCA 1935 case summary — Zoe

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contemplated on the completion of the hearing of the case. Awa were made in March of 1930 in respect of the operations carried on by the railway authorities in the various States. One of these i known as the Consolidated Award Victorian Daily Paid and Salari Grades.. It determined the basic wage, margins above the wage, hours of duty, and other matters. Leave, however, ¥ reserved to the parties to prosecute various undetermined claims such, for instance, as those applicable to conditions of employment. In October of 1930, the Arbitration Court in Full Court set these awards, except so far as the awards prescribed the basic and standard hours of work. In January of 1931, the Full Cour also reduced the wage rates by ten per cent. Applications made to restore the awards, and in 1933 the Full Court declined t restore or re-enact them, but intimated that the way was open for the parties to bring any application before the Court "for th purpose of getting an award such as the Court thinks is appropriat to present conditions." In April of 1934 the Full Court determined that the ten per cent reduction should no longer operate, and varied the method of determining the basic wage. Later in 1934, another application was made to restore the consolidated awa or for an award in terms of that award as at 4th October 1930 a since varied. Again the Full Court denied the application, stated that it proposed to assign all the outstanding railway matte the application to restore, and other matters on the list, to a sin Judge. All outstanding railway matters were accordingly listed before Judge Drake-Brockman, including a summons dated 2nd Octol 1934, seeking the restoration of the consolidated award known ai the Victorian Daily Paid and Salaried Grades Award, subject certain exceptions or qualifications, or for an award "in terms the said award as at the 4th October 1930 as since varied, but subject to the said exceptions and qualifications." Another sumn dated 9th November 1934, was also issued. It called upon th

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lway matters now pending before his Honor Judge Drake- Brockman. Before this summons was issued the Commissioners had obtained an order nisi for a writ of prohibition for the same "purpose. To understand the nature of the proceedings before Judge ~ - Drake-Brockman, it is necessary to give a short account of the awards affecting the parties. As long ago as 29th May 1924, the organiza- tion, by a log of claims served upon the Commissioners and upon the railway authorities of three other States, took the first step in _ raising the industrial dispute which is said to be a sufficient foundation to support the challenged proceedings. Two months afterwards the organization filed a plaint based upon the dispute, the existence of which at that time does not appear to have been denied. The plaint sought terms and conditions against the Commissioners of four States, including Victoria. The hearing of the plaint was commenced on 16th March 1925 by a Deputy President (Sir John Quick) who proceeded to settle the dispute by a series of interim awards, _ After a hearing extending over five years, the interim awards were collected into. final consolidated awards for each State. The consolidated award was made on 25th March 1930. It prescribed abasic wage, and, by additions to the basic wage, prescribed wages long catalogue of railway employees of all classes. It dealt th hours of duty and some other conditions and also prescribed ies for salaried officers. Clause 3 of the award provided that it ld come into operation on 23rd March 1930, and, except as to in clauses, should continue in operation until 31st December 1, or such earlier date as should be ordered by the Court. On 4th October 1930, upon an application by the Railways issioners for the four States, the Full Court of the Court of tion and Arbitration made an order setting aside the consolidated awards except so far as the awards prescribed the basic wage and standard hours of work. The order contained a Schedule setting out in detail the parts of the text of the awards aside. Before this order was made a Conciliation Committee been appointed under sec. 34 of the Act in relation to railway es and applications for variations. The organization objected the order purporting to set aside portions of the award was in

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refer to the words in clauses 2 and 3, " consolidated award as varie to date." Iam quite unable to treat the words " as varied to date" : as excluding the so-called order of setting aside of 4th October 19: 0 Independently of the history of the matter, they would nat be read as including all the alterations in the operation of the awar which had been made. But the history of the matter shows the organization had succeeded in obtaining in this Court a definite expression of judicial opinion that the order was a variation. Mor e- over, if it had been intended to re-establish the provisions set asid it is almost incredible that the interim award should contain express provision doing so. The interim award appears to me adopt the existing wages and conditions prescribed by the combine effect of the awards and orders in force, to qualify them by clause which is to the effect of the qualification contained in the order o the Full Court of 17th April 1934, and to establish those wages a conditions for six months unless in the meantime the Court otherwii orders. Upon this interpretation of the award, which appears me unavoidable, it accomplishes little. It is, therefore, easy | understand why the parties united in preferring to give it some oth effect. On the one side, the Commissioners' counsel evident considered the effect which both parties were prepared to attach to the interim award tended to support his attack on its validity as indeed it does. On the other hand, the organization is no doul desirous of giving to the instrument a meaning which will conf substantial advantages upon its members. Before the interim awal was drawn up, however, neither party ascribed to the Judge an inten tion to do precisely what they now say the instrument would effec ifvalid. What his intention actually was it is fruitless to inquir If it was wider than that which the instrument expresses, he was 4 liberty to revise it in drawing up the interim award. In a matt in which the validity of a proceeding of the Court of Coneiliatio and Arbitration is at issue, we are not at liberty to substitute f the text of the order of the Court the gloss which the parties pl upon it. We are concerned with what the Court has done, not wit what they would have liked it todo, If the order was ambiguous, i would perhaps be another matter. But I cannot find in its ter any ambiguity. The doubt as to its meaning exists, I think, of

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Judgment (250 paragraphs)