R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres

R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres - [1949] HCA 33 - HCA 1949 case summary — Zoe

[13]

The court is a statutory tribunal the jurisdiction of which is defined by statute. It is not such a superior court within the meaning of the proposition that all matters are within its jurisdiction unless the contrary is shown. This is the mark of a superior court as distinguished from an inferior court: Halsbury's Laws of England, 2nd ed., vol. 8, p. 530. Mandamus will not go to such a superior court: Halsbury's Laws of England, 2nd ed., vol. 9, p. 762. Section 17 (3) of the Commonwealth Conciliation and Arbitration Act 1904-1948 provides that the Arbitration Court shall be a superior Court of Record. But for the reason stated, this provision does not remove the court or its judges from the area of application of the writ of mandamus. Further, s. 75 of the Commonwealth Constitution provides that the High Court shall have original jurisdiction in all matters in which a writ of mandamus or prohibition or injunction is sought against an officer of the Commonwealth. The judges of the court are, it has been decided (see R. v. The Commonwealth Court of Conciliation and Arbitration and the President thereof and the Boot Trade Employes Federation; Ex parte Whybrow & Co. [2] ; R. v. The Commonwealth Court of Conciliation and Arbitration and the President thereof and the Australian Builders' Labourers' Federation; Ex parte Jones; Ex parte Cooper & Sons [3] ), officers of the Commonwealth within the meaning of s. 75 (v). The provision contained in s. 17 (3) of the Act does not remove the judges of the court from the category of officers of the Commonwealth. Their duties and powers are not so extensive now as they were under the Act before 1947, but they are of the same character. The application which is said by the prosecutor to come within the jurisdiction vested in the court by s. 25 is not an application for the exercise of any judicial power. It seeks action by the court in its arbitral jurisdiction, and, in this connection, it is not material whether or not the court, when acting in its judicial character, is in any sense a superior court. Therefore this court has a constitutional jurisdiction to issue the writ sought notwithstanding the statutory provision in s. 32 of the Act that a judgment, order or award of the court (even if a refusal to exercise jurisdiction is a judgment &c.) shall not be subject to mandamus: Australian Coal & Shale Employees Federation v. Aberfield Coal Mining Co. Ltd. [1] . The writ of mandamus is not a writ of right nor is it issued as of course. There are well recognized grounds upon which the court may, in its discretion, withhold the remedy.

[23]

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. This was decided by the Court in Australian Workers' Union v. The Commonwealth Railways Commissioner [1] , where the court interpreted s. 18A of the Commonwealth Conciliation and Arbitration Act 1904-1930. Section 18A provided that the court should not have jurisdiction to make an award "altering the basic wage or the principles upon which it is computed" (the words which now appear in s. 25 (b)) unless the question were heard by the Chief Judge and not less than two other judges and the alteration were approved by a majority of the members of the court by whom the question was heard. The award applying to the railway industry in question contained a clause providing for the payment of a certain amount as a minimum wage to a male unskilled labourer. This amount was adjusted in accordance with certain figures showing variations in the cost of living. A single judge of the court made an award providing for the application for this purpose of tables which were on a different basis in relation to prices of commodities from those which were previously applicable. The result of this alteration was to "reduce the wage which, if the old award had remained in force, would have been payable under its provisions as the primary wage to the unskilled labourer, the wage payable for skilled labour being assessed on the basis of that primary wage": see [1] . Accordingly, it was held that the new award altered the amount of the basic wage. Since the decision was given in that case the Act has been amended on several occasions, but no amendment has been made which makes that decision, so far as it goes, inapplicable. We do not refer to the cases in which the Full Court of the Arbitration Court dealt with matters affecting the basic wage under s. 18A (4) of the Act before the 1947 amendment, because there was then no such separation of jurisdiction between the court and conciliation commissioners as is now effected by ss. 13 and 25, and there was no doubt as to the power of the court to deal with any part of any industrial dispute to which the Act applied.

[25]

Several awards have been made in recent years relating to the theatrical industry. The last award purporting to bind the South Australian and Western Australian employers who were applicants in this matter before the Arbitration Court was made by Mr. A. Blakeley, Conciliation Commissioner, on 25th February 1948. This award, however, fails to specify a period during which it is to continue in force, and therefore does not satisfy the requirement of s. 48 (1) of the Act and is invalid: R. v. Foster; Ex parte Crown Crystal Glass Co. Pty. Ltd. [2] . The award applying to South Australian and Western Australian employers in the industry is an award made by Mr. G. A. Mooney, Conciliation Commissioner, on 18th and 22nd February 1943 and subsequently varied by an addition to the basic wage made on 21st February 1947 and in respect of male employees at Whyalla and Iron Knob in South Australia on 11th November 1947. The award as varied on 21st February 1947 prescribes weekly, hourly, and performance rates of pay to be adjusted in relation to the "Court's Retail Price Index Numbers (Second Series)." It is provided that "adjustment is to be based on the equating of Index No. 87.0 with 87s., the amount assessed upon that number of the Court's needs basic wage per week." The "Retail Price Index Numbers (Second Series)" is a table showing price variations based upon index figures published by the Commonwealth statistician. The meaning of the adjustment clause is that if for any particular period when an adjustment is due (the award provides for periodical adjustments) the statistician's index number is 1000, then the court's index number would be 87.0 (any figure between 86.5 and 87.4 is taken as 87.0 for the purpose of adjustment): when the court's index number is 87.0 what is called the "needs basic wage" is 87s. per week, and each change to the next index number means an increase or a decrease, as the case may be, of 1s. per week in that adjustable part of the wage payable.

[26]

The principal award (February 1943) contains a provision for unskilled labour not elsewhere provided for. (It is not necessary in this case to consider questions raised in argument as to the identification of the basic wage where there is no provision applying to unskilled labour.) In the case of males the weekly wage was £5 1s. This sum includes not only the "needs basic wage" adjusted in accordance with price index numbers, but also certain loadings which have been prescribed for various reasons. There have been a war loading (a special provision made to meet war conditions), a prosperity loading in 1937 (an increase in wages designed to give employees something more than a bare minimum and to allow them to share in the general prosperity of the community) and industry loadings (special additions regarded as appropriate by reason of the conditions of work in particular industries). The adult male unskilled labourer, therefore, receives under the award as varied an amount consisting of the total sum of the needs basic wage with such of these additions as have been preserved. No lower wage can under the award be paid to such a worker. It has been argued that some or all of the loadings are not part of the basic wage, and that only the "needs basic wage" or, at most, the amount of the "needs basic wage" together with the amount of the prosperity loading, constitutes the real basic wage under the award. It is, however, unnecessary in the present case to deal with this specific question because it is not disputed that if the application submitted to the Arbitration Court were granted the amounts of the "needs basic wage," and therefore of any greater amount which could be described as the total basic wage, would both be reduced. The applicants ask that the figures to be applied for purposes of adjustment in South Australia and Western Australia should be figures relating to variations in costs of living in Adelaide and Perth, i.e. that the award should apply differential rates, and not the flat rate depending upon the index numbers for the six capital cities as at present. The adoption of the Adelaide and Perth basis would result in a reduction of the amount payable to the male adult unskilled labourer in South Australia and Western Australia. Further, the applicants ask that wages in provincial districts in South Australia and Western Australia should be 3s. below the rates in Adelaide and Perth respectively. This is a claim for reduction in the basic wage in those districts. Thus the application is an application for the reduction of the basic wage as that term has been interpreted in Australian Workers' Union v. The Commonwealth Railways Commissioner [1] .

[28]

The learned judges constituting the majority in the Arbitration Court based their decision upon the proposition that the basic wage represents what was described as a "market basket" of goods and services, so that an alteration of an award which still secured to a wage-earner only the same quantity of goods and services as he was able to obtain for an already existing basic wage would leave the basic wage unchanged and would not bring about an alteration in his wage. The basic wage may be altered by an alteration in the composition of the goods and services or in the values assigned to any of the elements they include. There would be such an alteration if it was decided that instead of including figures relating to e.g. rents of four and five roomed houses in the index numbers, it were decided to substitute or to add six roomed houses - or if it were directed that prices of commodities not hitherto taken into account should be taken into account in calculating price index figures. Any such change would be an alteration in the standard of living in relation to which the basic wage was computed and would be an alteration in the principles of such computation. In the present case it does not appear whether or not the granting of the application would alter the basic wage in this sense if a comparison were made between the relevant "cost of living" at the time when the applicable provision was included in the award and that cost at the time of the application. The basic wage must be expressed in money. To translate the goods and services into money some place or places must be selected and it must be done as at a given time. To prescribe the variations from one place to another or from one time to another, if such variations are adopted, are necessarily as much part of the process of fixing a basic wage as the choice of the original place or places and the specification of the time. If, however, the amount is uniform for all or a number of places, this in itself is an adoption of the wage for all those places. If a change is made in any of these steps it is an alteration of the basic wage. The application of the South Australian and Western Australian employers was an application for an alteration in the amount of the basic wage because it sought an alteration in the variations previously prescribed.

[30]

Further, the application was an application also for an alteration in the principles upon which the basic wage was computed. Various principles have been applied by the Arbitration Court for the purpose of determining what wage as the wage of the male adult unskilled labourer should be adopted as the basis upon which margins for skill and other special allowances not generally applicable to all employees governed by the award should be founded. The first principle laid down by Higgins J. as the President of the Court was that the lowest wage to be paid should provide for the normal needs of an average employee regarded as a human being living in a civilized community. In fixing that wage the court made provision for what was then (1907) regarded as an average family, namely, a man and wife and three children. In later years, however, the court, while not abandoning the principle stated as being a minimum standard, has applied the principle that industry should pay the highest basic wage that can be afforded so that, for example, wage-earners should share in any general accession of prosperity to the community as a whole. Thus a "prosperity loading" was added in 1937. In 1946 the "needs portion" of the basic wage then current was increased by 7s. a week. This increase was brought about by equating to the base (1923-1927) index number of the court series index a sum of 87s. instead of 81s. These changes are examples of alteration of the principles upon which the computation of the basic wage is made. The word "computation" refers to a process of calculation. The principles of the computation are not the rules of arithmetic applied in making the calculation, which are the same at all times. They are the principles adopted which determine the elements with respect to which the arithmetical calculation is to be made. The substitution, as a basis of adjustment, of figures based upon variations in cost of living in Adelaide and Perth for figures representing such variations in the six capital cities of the Commonwealth is in our opinion an alteration in the principles upon which the basic wage in the relevant award is computed. Thus, in our opinion, upon this ground also it should be held that the application made to the Arbitration Court came within its jurisdiction under s. 25 (b) of the Act.

[31]

It is now necessary to return to the question of the court's discretion in determining whether to direct the issue of a writ of mandamus. It has been urged that in the exercise of its discretion the court should abstain from issuing the writ in the present case because it was intended by Parliament that the Arbitration court itself should deal with such a matter as that which is now before the court. It is of course true that the Arbitration Court, like every other tribunal or body upon which a statutory duty rests, must accept the responsibility of deciding whether a given occasion calls for the exercise of the function. But if this proposition is properly understood it supports strongly the claim of the prosecutor. That claim is that the Arbitration Court should deal with the matter and should not decline to deal with it. If the writ were refused in the present case by an exercise of discretion the position would be that that court would not deal with the application. If the application were then renewed before a conciliation commissioner, the conciliation commissioner would be placed in the position of having to choose between the decision of the Arbitration Court and the decision of this Court as to whether the application was an application falling within s. 13 (b) and s. 25 (b). If he followed the decision of the Arbitration Court and proceeded to deal with the application, then, consistently with the decision of this Court in this case, the applicants could obtain a writ of prohibition: see R. v. Galvin; Ex parte Metal Trades Employees' Association [1] . The result would be that the questions raised upon the application could never be decided in any jurisdiction. If, on the other hand, the commissioner followed the decision of this Court he would decline to deal with the application. The Arbitration Court, maintaining (in the supposed case of a discretionary refusal of mandamus by this Court), its decision as already given, would also decline jurisdiction, and no decision would be given by either the court or the commissioner. Where an alteration of the basic wage or of the principles upon which it is computed is an element in a dispute, or where such an alteration is sought by way of variation in an existing award, the matter must be determined, if at all, by the Arbitration Court. Unless the High Court uses the instrument of a writ of mandamus in such a case there would be a gap in the whole system of industrial arbitration which would be unfortunate from every point of view. There is no ground upon which the court can, as a matter of discretion, withhold the writ. On the contrary the strongest reasons exist for its issue.

At a glance

Court

Decision date

Before

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Judgment (33 paragraphs)

Parties

Cases Cited (1)