R v Commonwealth Court of Conciliation and Arbitration and the Australian Tramway Employees' Association [1920] HCA 82

to the making of the order to vary, provided that the variation is ambit of the original dispute.

the organization and the Company in settlement of the dispute, and on 31st October 1919 a memorandum of the terms of the agree- ment was certified by the President of the Commonwealth Court of Conciliation and Arbitration and filed in the office of the Registrar of that Court. 'The agreement (inter alia) fixed the rates of wages of employees, and was to continue in force until Ist May 1920,

On 17th February 1920 a summons was issued on behalf of the organization against the Company to vary the agreement by increas- ing the minimum rates of wages of employees, and on 18th May 1920

Commiox- Cover oF Coxenia- Anima: Ex pare 'Nonrw MeLnocRse

an order was made by the President varying the agreement by. Euectnic

awarding increased minimum rates of wages to the members of the organization employed by the Company as from Ist January 1920,

The Company then obtained an order nisi calling upon the Com- monvealth Court of Conciliation and Arbitration and the organiza- tion to show cause why a writ of prohibition should not issue pro- hibiting that Court and the organization from further proceeding in respect of the order or award of 18th May 1920, upon the ground that the President had no jurisdiction to make the order or award retrospectively operate from Ist January 1920,

Owen Dixon, for the prosecutor. Undersee, 38 (0) of the Common- wealth Conciliation and Arbitration Act 1904-1918 there is no power to vary an award retrospectively. Assuming that the power to vary am award given by that section is a power 'to make a substantially new order by reason of new facts but within the limits of the 'original claim (R. v. Commonwealth Court of Conciliation and Arbitra- tion; Ex parte Whybrow e& Co. (1) ), such an order is necessarily Prospective, that is, it must be limited to duties to be performed. The effect of the decisions in Waterside Workers' Federation of Aus- tralia v. Commonealth Steamship Owners' Association (2) and Federated Gas Employees' Industrial Union v. Metropolitan Gas Co. (3) is that the words " shall continue in force " (see. 28) were intended to give security that the provisions operating under an award are the only provisions which are to operate until a new award is made. The reasoning that led to that result leads also to

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the conclusion that under the power to vary given by se 38 (a no alteration in the conditions laid down by the award ean be made in respect of the period before the variation is actually made. If that view is incorrect, there is no power to vary retrospectively an agreement made under sec. 24. The existence of that power depends on the effect of the words " shall have the same effect as, and be deemed to be, an award." The effect of | such a power would be to give the Arbitration Court power at any time to revise the whole agreement upon the same material as existed when the agreement was made. If, however, the power to award is only prospective, it is a power to prevent the agreement operating in circumstances which were never contemplated. The words "deemed to be an award " are intended to enable the partis to enforce their rights under the agreement in the same way as under an award, That is shown by the words "as between the parties to the agreement." 'The parties are to have the same rights under the agreement as they would under an award, but that the Court should have power to vary is not one of those rights. The words "reopen any question" in sec. 38 (o) mean reopen any question which has been decided by the Court, and are not applicable to a matter upon which there has been an agreement between the parties,

Latham, for the respondent organization. 'The effect of sec. 4 is that when an agreement is certified and filed it is on the sam footing as an award for all purposes. 'The words "as between the parties to the agreement" were inserted when the provision for

making a common rule was in the Act, and probably the intention was to draw a distinction between an agreement and an award if that respect. There is power to vary an award retrospectivdy (Federated Engine-Drivers' and Firemen's Association of Australasia ¥. Adelaide Chemical and Fertilizer Co. (1)). Under see. 88 (0) the Court may, upon an application to vary an award, makeany order which the Court might originally have made ; and that means that the order varying must be in relation to the dispute which was the subject matter of the award, and therefore must be within the limits (1) 28 CLR, 1, at p. 10.

ofthe claim made in the plaint. So, in the case of a variation of an agreement, the order must be within the limits of the claim as to

| which the agreement was made. The power given to "reopen

any question " shows that a retrospective variation may be made, for the question at the time the award or agreement was made was as to the wages payable for the future. If that question is reopened, the variation may be as to any part of that period whether before or after the variation.

Owen Dizon, in reply. Upon the proper construction of the context the power to vary does not include a power to prescribe some duty in respect of what is past. The giving of a lump sum in respect of past services or as compensation because the award did not fix a sufficient rate of wages cannot be described as a varia- tion of an award. Such a thing could not be done by the original award. The power to reopen any question cannot extend the power to vary.

Kxox C.J., Gavax Durry axp Srarke JJ. By memorandum 'of agreement dated 18th October 1919 made between the Aus- tralian Tramway Employees' Association, an organization registered under the Commonwealth Conciliation and Arbitration Act, of the 'one part and the North Melbourne Electric Tramways and Light- ing Co. Ltd. of the other part, certain rates of pay and conditions of employment were agreed on for members of the Association em- ployed by the Company. It was an express term of the agreement that it should continue in force till Ist May 1920. This agreement 'Was made in settlement of a dispute which was duly before the Com- 'monwealth Court of Conciliation and Arbitration and was certified n 3lst October 1919 under sec. 24 of the Commonwealth Concilia- tion and Arbitration Act 1904-1918, and filed in the office of the Registrar.

'On 17th February 1920 a summons was issued out of the Common- wealth Arbitration Court on behalf of the Association calling on

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the Company to show cause why the agreement referred to ab should not be varied by inserting therein increased rates of pay: certain classes of employees. It was not disputed that the

rates sought in this proceeding were within the ambit of the o dispute. On 18th May 1920 the President of the Arbitration Court made an order on this summons that the agreement should be vatiel by substituting higher rates of wages for various classes of employees as from Ist January 1920. The Company obtained an order nisi

of the said order as prescribed higher rates of wages from Ist Jan to 31st March 1920 and from Ist April 1920 to the date of the onl

to vary the provisions of the agreement as from a date anti to the making of the order to vary. See. 24 of the Act provid 'that an agreement when certified and filed shall, "as between th parties to the agreement, have the same effect as, and be deemed to be, an award." See, 38 (0) provides that the Court shall as reg every industrial dispute of which it has cognizance have pow vary its onters and awards and to reopen any questions

viz. : firstly, that under sec. 38 8 (0) there is no power to vary award retrospectively - ive., to alter its provi antecedent to the making of the order ; and, secondly, that if such a power exists in relation to an award it does not extend to an agt 'ment filed under see. 24.

In our opinion neither contention can be sustained. Asto thei, the power to vary is given by sec. 38 (0) in terms not restricted by any qualification or condition, and we ean see nothing to justify the insertion, by way of construction, of a limitation to the effect thatno such variation shall have any effect before the date of the ord by which it is made. The Gas Employees' Case (1) and the Waterside Workers' Case (2) support, to some extent, the conclusion at which we have arrived, As to the second, we see no eseape from conclusion that the effect of the provision of sec. 24 that the ag ment 'shall have the same effect as, and be deemed to be, an awa

{stoattract to agreements filed under that section the power to vary awards contained in sec. 38 (0). The whole scheme of the Act is sed on a disregard of agreements, and we can find in its provisions

10 indication that the Legislature intended to give an agreement filed under see. 24 an effect in excess of that given to an award made by the Court.

On the whole, we are of opinion that the words of the Act construed in their natural meaning authorize the Court of Arbitration to vary 4s from an antecedent date an agreement filed under see, 24, s0 long 4s the variation is within the ambit of the original dispute. 'The rule nisi for prohibition must therefore be discharged.

Isaacs axp Rion JJ. (delivered by Isaacs J.). The question we have to determine is whether under the Commonwealth Con- fon and Arbitration Act there is power to vary retrospectively am agreement made and filed as an award in pursuance of see. 24 of the Act.

1, The Power to so vary an Award. - Sec. 38 provides that " the Court shall, as regards every industrial dispute of which it has cog- nizance, have power . . . (0) to vary its orders and awards and to reopen any question." Having regard to prior decisions and to the wide terms of this sub-section, the proper construction is that the power contended for does exis "award," that is, where the Court arrives at the terms of the award 'won its own view of the facts after contest between the parties. The Court may well consider at the time it makes the award that the provisions it makes are just and proper for the whole period fixed by it for the duration of the award. But the Act reserves by sub-see. (0) of sec. 38, only conditionally, however, upon an applic tion being made by a proper party under sec. 39, the power to the Court to correct any error that may appear, within the limits of the

spate; and as justice is the main consideration and the period of

'uration is fixed by the arbitrator, there appears to be no reason why the revision, if it takes place, upon the necessary application, may not extend to the full correction of a proved error.

2 Does an Agreement stand in the same position as an Award ? -

H.C. or A. The agreements referred to in secs. 23 and 24 are agreements for

ee, purpose of arriving at the just terms of an award. They are intended

maxon merely as a consensus with regard to what the arbitrator shoul

award, and the process deseribed by see. 2¢ is in effect one by wish

• the arbitrator adopts the view of the parties who have reached th Coxciuta- stage of the dispute. He has some control over the terms, and th Sema section says it shall have the same effect as, and " be deemed to yrS i: an award." There is nothing in sec. 38 or in any other part of MAGEE. Act to cut down the comprehensiveness of this provision, and th 'Buecraic is nothing in the nature of the thing to call for different treat 'TS\Np" When the parties agree for the purpose of sec. 24, they know they 'Eo"EEs do so for all the purposes of an award. And consequently {wy Know that they agree subject to the powers of variation which attach

HGS" to an award. The prohibition should therefore be refused, and the onde i

Solicitors for the prosecutor, Home & Wilkinson. Solicitors for the respondent, Brennan & Rundle.