R v Galvin; Ex parte Metal Trades Employers' Association [1949] HCA 12

R v Galvin; Ex parte Metal Trades Employers' Association [1949] HCA 12 - HCA 1949 case summary — Zoe

[18]

S.C. G@. Wright (with him Aird), for the prosecutors. Upon the state of the award, the standard hours of work referred to in ss. 13 and 25 of the Commonwealth Conciliation and Arbitration Act 1904-1947 are those prescribed by clause 4 subject to any remis- sions allowed generally under the award. That is to say, they are the net number of working hours during which employees are liable to perform their work upon the lawful commands of their employer, and any remission which relieves the general body of employees from the obligation to carry out their work for any portion of the time laid down by the award as their normal working week is an alteration of the standard hours of work. Emphasis is laid on the words "standard" and " of work," more particularly the latter because this application is for a remission of work for a rest period. That that is an impingement on the standard lies in the fact that it is claimed for every employee covered by the award and not merely for the exceptional employee who, say for medicinal reasons, might have to drink tea. A specific provision which is universal in its incidence and regular is properly described as "standard " because it has that universal application, e.g. clause 6 (a) of the award is " standard " and clause 6 (6) is not ' standard." The proper meaning of the word "standard" in this connection appertains to the average employee who is subject to the pro- vision. Exceptional cases are dependent on particular circum- stances; they are not universal to the general body of employees and they are not an impingement upon the standard hours of work. If, however, a provision as to breaks is specific as to time, regular and universal, then it is properly termed a standard and is an impingement upon the hours of work, and, involving as it does a question of standard hours, is within the exclusive jurisdiction of the court. The expression "hours of work" i not intended to denote the time during which a contract of employ- ment subsists. The answer to any such suggestion is that such a contract of employment subsists over a public holiday or during annual leave. The "standard hours of work' means the time during which an employee is liable to devote himself to his duties on the lawful orders of his employer. The prototype of the present provision was inserted in the Commonwealth Conciliation and Arbitration Act in 1920, and par. 6 in the judgment of Powers J. in the Standard Hours Case (1), in which it was alluded to specifically,

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~ hours of work. A new feature or provision cannot be introduced if it diminishes the working hours of the work to be done. The words "working hours" mean some standard of hours during which an employee is employed in respect of which he is paid for what he has done. "' Standard hours '' may be described as " that number of hours ordinarily worked " and are " the generally accepted. standard of working time" (Printing Industry Employees Union of Australia v. Arbuckle, Waddell Pty. Ltd. (1); Australian Builders' Labourers' Federation vy. Archer (2); Federated Storemen and Packers Union of Australia v. Australian Mercantile Land and Finance Co. Ltd. (3)). Re Federated Ship Painters' and Dockers' Union of Australia and Peters Slip, Brisbane (4) was wrongly decided. That decision was based on wrong premises. Previous awards and orders of the Arbitration Court as to tea and other breaks were by consent and did not involve an alteration of standard hours. The decision of the Arbitration Court in the Standard Hours Inquiry (Print No. 7703 (1947) ), in which the "standard hours of work" were reduced from forty-four to forty per week, recognized and perpetuated in the case under discussion such remissions as did exist in the award, and having made its decision against that background, it made an alteration which simply brought the net working time to which the employees were liable down by four hours. That decision was really a decision that this award and other awards should be varied in a particular manner. There was not a declaration as a general law on forty hours, but specific variations were made in specific awards. In form and substance it was the concurrent hearing and settlement of a number of disputes. The annals of the Arbitration Court do not establish a practice by that court as to tea-breaks based upon the view that it has never regarded such breaks as affecting standard hours. The whole of the judgment of Kelly J. in Re Federated Ship Painters' and Dockers' Union of Australia and Peters Slip, Brisbane (4)

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A. R. Taylor K.C. (with him Prior), for the respondent union. This is not a case where the prosecutors seek to prohibit the enforce- ment of an order or a penalty but they ask that the further hearing upon the summons be prohibited. Before a writ of prohibition will be sent out of this Court it must clearly appear that there is a want of jurisdiction in the tribunal to which it is addressed (R. v. President of the Commonwealth Court of Conciliation and Arbitration ; Ex parte Australian Agricultural Co. Ltd. (1). The terms of the Act, particularly ss. 14, 16, 25, 34, 39 and 40, show that a case has not been made out that the conciliation commissioner is about to, or is even likely to exceed, his jurisdiction. It is not conceded that. s. 13 is an absolute qualification of the powers of conciliation commissioners under the Act. Section 34 is an important section in practice in the Arbitration Court, because it by no means follows that an application made to that Court is granted in the terms in which it is sought. Under s. 39 a commissioner is not bound to act in a formal manner, he is required to act according to equity and good conscience and the substantial merits of the case without regard to legal forms. Section 40 confers upon a commissioner general powers with regard to disputes occurring within his juris- diction. The court's jurisdiction is marked out by s. 25. In the main the jurisdiction is defined. The matters enumerated in that section are identical with those which are specified in s. 13. Generally, the jurisdiction of the Arbitration Court and the juris- diction of the commissioners are mutually exclusive. The Act itself, by s. 16, provides its own means for determining the boundary line between the jurisdiction of the court and the jurisdiction of the commissioners. Section 13 read with s. 16, means that a commissioner ' shall not be empowered to make an order or award which in the opinion of the Full Court operates to alter the standard hours of work in an industry." Although a question as to his jurisdiction has been raised, before it is determined he is permitted to make a tentative award if he so desires. Not only is he dealing with collateral questions of law, but questions which go to the jurisdiction, and in that very matter in which a question of Jurisdiction has arisen he is given power, under s. 16 (4), to make an order even though he has otherwise no jurisdiction. It is

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and would not decline jurisdiction. As the application by the respondent union involves an alteration of standard hours of work the commissioner has no right even to hear it if it can be held that he cannot grant it. The standing over of that application by the commissioner was an exercise of jurisdiction. There is no power to make an order in pursuance of the summons, and the fact that the commissioner may dismiss the application does not affect the fact that he is asked, and asked only, to exercise a juris- diction which he does not possess. If time of application were considered important it would be a fair conclusion that it could be mischievous to allow it to proceed to decision. Section 16 is quite compatible with s. 13 and other sections of the Commonwealth Conciliation and Arbitration Act 1904-1947, which vest jurisdiction in the commissioners. It is clearly a convenient code of procedure to afford commissioners legal assistance from a judicial tribunal but must not be read in any sense as an enlargement of jurisdiction. It is simply pertaining to whatever jurisdiction the commissioners have under the Act. This Court will strain against any construction of s. 16 which would involve transcending the constitutional aspect of the matter, and maybe, the ambit of the Act. It is to be noted that the Act does not purport to give any power whatever in the nature of prohibition or mandamus or injunction against the commissioners. The Arbitration Court has no power of disciplining a commissioner or of correcting a commissioner who determines contrary to its decisions. Such a power must repose in this Court under s. 75 (v.) of the Constitution. The right of appeal to the Arbitration Court under s. 16 (1) was abolished by the 1947 amending Act. The industry concerned is ascertained by reference to the award (Australian Workers' Union v. Commonwealth Railways Commissioner (1)). In Australian Federated Union of Locomotive Enginemen v. Victorian Railways Commissioners (2) the Court was not concerned with the altering of hours of duty or hours of work ; there was no question of an alteration of standard hours of work involved.

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Court

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Before

Source

Judgment (79 paragraphs)