R v Hamilton Knight; Ex parte Commonwealth Steamship Owners' Association - [1952] HCA 38 - HCA 1952 case summary — Zoe

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R v Hamilton Knight; Ex parte Commonwealth Steamship Owners' Association

[1952] HCA 38

High Court of Australia|1952-07-01|Before: Kitto JJ

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Source facts

Court

High Court of Australia

Decision date

1952-07-01

Before

Kitto JJ

Source

Original judgment source is linked above.

Judgment (102 paragraphs)

[1]

This matter is the subject of a claim expressed in sub-cl. (3) of cl. 28 of the log of the Merchant Service Guild. The sub-clause is as follows: "3. Compensation. - (a) If a personal injury by illness or accident arising out of or in the course of the employment be caused to an employee, the compensation payable by the employer shall be that provided for under the Commonwealth Seamen's Compensation Act, 1909, 1911, 1938, 1947 (as amended). Except that: (i) For the first three months of the duration of the incapacity in lieu of what would be payable under the said Act in respect to the said period the compensation shall be a sum equal to the pay which he would have earned had he been able to render the agreed service in the capacity obtaining at the time of the accident. (ii) Where death results from the injury there shall be paid to the personal representatives of the deceased a sum equal to four years' pay computed at the rate of the earnings of the employee at the time of the accident, with a right to such earnings being computed at the rate of the earnings over the last three months of such employment or lesser period if the employment in that capacity has not extended for three months".

[2]

This sub-clause is followed by a fourth sub-clause which provides that the right to compensation shall not commence until the contract of employment has been determined and the employee is no longer entitled to wages. The sub-clause refers to a provision in the log setting out the conditions claimed concerning the termination of employment.

[6]

A further difficulty arises from the manner in which the claim is expressed. For it takes the Seamen's Compensation Act and, without explanation of how it is to be accomplished, demands that "the compensation payable by the employer shall be that provided for under" that Act. There is a misdescription in the claim in respect of the years given for the Act, which is now the Seamen's Compensation Act 1911-1949. But that does not matter. The definition of "seamen" contained in s. 3 (1) excludes espressly "a master, mate, engineer or radio officer of a ship". Hence the claim. If it is intended to apply the Seamen's Compensation Act directly to the excluded officers, this seems to be just what Parliament has decided against. But no one supposes that Parliament meant that employers should be under no liability to employees of the excluded category, suffering injury attributable to their employment. If the claim means no more than that the rates of compensation prescribed by the Act shall be applicable, probably that does not conflict with any intention to be ascribed to Parliament. But the conciliation commissioner cannot by his award extend to the officers in question the jurisdiction of the courts upon which the Seamen's Compensation Act confers the various authorities given by, for example, ss. 5 (3), 5C (3); First Schedule, cll. (1) (a) (ii), (7a), (10), (17), (18); Second Schedule, cll. (2), (3), (7), (8) (e) and (12). See the Builders' Labourers' Case [1] . Further if the provisions of the Act were made applicable in full it would be found that in some respects the operation of the words with which cl. 3 (a) of the claim begins, viz.: - "if personal injury by illness or accident arising out of or in the course of the employment be caused to an employee", would be enlarged and in others qualified or restricted: see for instance ss. 3 (3), 5C and 5AA. Further there would be a possibility of the weekly payments and the provisions relating thereto being given a purported operation beyond the period specified in the award under s. 48 (2) of the Conciliation and Arbitration Act 1904-1951.

[14]

The "compensation" which the employees required the employers to provide is of the nature of workmen's compensation. Although this matter is not covered by the words "conditions of employment", the general definition of industrial matters invites the question whether "the compensation" pertains to the relations of employers and employees. The general definition is wider than the phrase "conditions of employment". The Builders' Labourers' Case [1] is not necessarily an obstacle in the path of the employees' organizations. The word "pertaining" describes the nature of the connection which must exist between the "compensation" and the relations of the disputants on either side to one another in their respective economic roles of employers and their employees, in order that the "compensation" may be an industrial matter. The right to workmen's compensation is not an incident attached by common law to the contract of employment: the right is the product of statute law. The nature and incidents of this kind of statutory compensation are well known and discussion upon them is here unnecessary. Such compensation is payable to a workman during his incapacity for work, or in the event of his death, to his dependants. The employees' logs of claims show that the "compensation" would have these incidents and the employers' liability to pay it would arise upon the determination of the contract of employment. Is the "compensation", nevertheless, a matter which pertains to the employer-employee relations of the disputants? The incidents which have been mentioned exclude the "compensation" from this description, unless there is some other incident of it which makes it pertain to those relations. The "compensation" would be payable upon contingencies proper to legislative schemes of workmen's compensation. The only link between the "compensation" and the employment would be injury or illness arising out of or in the course of the employment. The criterion of liability is very wide. It is enough to notice that an employer would be liable, as in the case of any legislative scheme of workmen's compensation, irrespective of his responsibility for an employee's loss of earning power or death. The employers would be the insurers of their employees against loss of earning capacity and of their employees' dependants against loss of their means of support. The policy of legislation on the subject of workmen's compensation has been to impose this obligation upon employers. The compensation is a form of social security extending beyond the duration of the relations of employer and employee and covering persons other than employees, namely the dependants of employees.

[45]

A conciliation commissioner must assume that his award will not last beyond five years and that, say, a claim for pensions for employees on reaching sixty-five can be awarded only to those who have reached sixty when the award is made, and even then that the provision for pensions will be enforceable only while the award exists. The commissioner cannot properly assume that a fresh award will not be made at the end of five years so that the old award will continue indefinitely. Still I think that these limitations do not take such provision out of the category of "industrial matters", the definition of which is literally wide enough to include it, in the absence of any indication to the contrary elsewhere in the Act. But it is unlikely that a conciliation commissioner with these limitations in view, will venture to provide for pensions simply because he has the legal power so to do. After all it is within his undoubted legal power to do many absurd things. To ensure that necessary powers are given very general terms are employed, thereby conferring some powers which would not be likely to be conceded in a category of specific powers. But the commissioner is expected and can, I think, be trusted to act as a reasonable, responsible person at all times. It is true that the qualifying length of service must have been rendered, the employee have retired and the pension have become payable within the period specified in the award as its duration, and therefore that the qualifying period would have to be comparatively short. But there is no limit to the legal power of the commissioner as to the length of service he might prescribe. He might also make the amount of the pension depend upon the length of the service. As it is possible that some employees might qualify for the pension, draw it, and die during the period prescribed in the award for its duration, it cannot I think be held that there is no legal power to provide pensions, although it would appear foolish so to do. The legal power is not limited by practical considerations short of impossibilities.

[47]

Finally the effect of the Navigation Act 1912-1950 and of the Seamen's Compensation Act 1911-1949, both enacted in exercise of the power given by s. 51 (i.) of the Commonwealth Constitution, must be considered. Although Parliament cannot enact, in disregard of the arbitrator's opinion, what provisions shall be included in industrial awards, still it has power to confer jurisdiction to make awards, and it may limit this jurisdiction, and do so either expressly or by implication. This power to confer a limited jurisdiction can be exercised, among other ways, by definitions of industrial dispute and industrial matters as in s. 4 of the Conciliation and Arbitration Act; and in s. 56 (2) Parliament has gone as far as to direct preference to be granted when the conciliation commissioner is of the opinion that it is necessary for the welfare of society, among other things. But has Parliament in the Navigation Act or the Seamen's Compensation Act limited the jurisdiction to make industrial awards? In my opinion the selection by Parliament of particular persons or classes of persons for special protection in relation to conditions of employment cannot properly be construed as a denial of jurisdiction to grant that or similar protection to persons or classes not so selected. I think its exclusive effect does not extend beyond the persons selected, and then only in respect of the same or similar protection. To hold that such action of Parliament extends further would give it an exclusive and exhaustive effect not hitherto attributed to it by industrial authorities or the courts, as far as I am aware. When Parliament selects particular persons or classes and prescribes special protection for them, I think it would constitute an attempt to ignore Parliament, and be beyond power, to provide in an industrial award for additional protection of the same or a similar kind for the same persons or classes; but that it would not be objectionable to make the same or similar provisions for persons or classes not so selected. If it were, then, on the same principle, once a statute provided any condition of employment for any persons whomsoever, no industrial award of any kind could be made either for them or for other persons. But there is a limit to implications from statutes; and here, I think, the limit is placed after the particular persons or classes for whom the statutes provide, and only then in respect of the particular types of protection given.

[51]

The first claim in question is contained in cl. 22 of the Guild's log and cl. 27 of the Institute's log. The claim relates to what are described as "intervals off duty" but might perhaps be better described as "intervals off ship". The provisions which the log seeks to have embodied in an award are elaborate and somewhat involved, but it is unnecessary to examine them in detail. The general nature of the claim is indicated by the opening words, which are: "Every employee shall be entitled to be absent from his vessel in port during intervals, each to be of 24 consecutive hours, and the number of such intervals and the place and time of giving them shall be as follows". What follows shows that the general object is to ensure that each employee shall have one clear day ashore for every Sunday and public holiday in the period of his employment: the intervals prescribed are stated to be based on the assumption that there are ten public holidays in a year, and it is provided that there shall be an additional interval for every additional public holiday proclaimed. The complexity of the provisions actually made is occasioned primarily by the fact that ships to be affected by the award will be engaged in voyages of widely differing character. An "interval" at the "home port" is regarded as more advantageous than an interval at any other port. Some ships will be absent from the home port only for short periods. Others will be at sea for long periods, and for other periods will be in ports where a day ashore presents little or no attraction. An attempt is accordingly made to provide something like an equitable distribution of "intervals" to cover these and other cases, the primary basis adopted being a division of ships into three classes. It is obvious that in some cases "intervals" will "accumulate". In some such cases there is provision for them to be taken consecutively, and in appropriate cases the accumulated intervals are to be added to and taken with the employee's annual leave.

[54]

The distinction itself seems clear enough. The question remains whether the "intervals" claimed by the logs are to be regarded as incidents of the normal day-to-day routine of work or as possessing the character of "leave". A consideration of the nature and purpose of such a provision serves, I think, to show that they cannot be regarded as possessing the character of "leave". The occasion for the "intervals" arises from the peculiar nature of the industry in which members of the Guild and of the Institute are engaged. Their place of employment is a ship, and the exigencies of the running of a ship are such that they cannot regularly be absent from their place of employment on Sundays and public holidays. The very nature of their calling thus deprives them of a privilege which is a normal incident of the day-to-day routine of work of the average shore worker. The whole object of providing for "intervals" is to give them something in the nature of an equivalent of that normal incident of shore employment. The first provision on the subject seems to have been made by Higgins J. in 1912 in Merchant Service Guild of Australasia v. Commonwealth Steamship Owners' Association [1] , where he dealt with the matter under the heading of "Time Off", regarding it as a subject quite distinct from "Leave of Absence". In 1916 he dealt with the matter again (Merchant Service Guild of Australasia v. Commonwealth Steamship Owners' Association [2] ), under the heading "In Lieu of Sundays and Holidays". The word "Intervals" appears to have been first used in 1920 (Merchant Service Guild of Australasia v. Commonwealth Steamship Owners' Association [3] ) when Higgins J. again dealt with the matter under the heading of "Sundays & Holidays or Intervals in Lieu Thereof". In 1923 (Commonwealth Steamship Owners' Association v. Australasian Institute of Marine and Power Engineers [4] ), Powers J. continued in force a pre-existing "provision as to days off in lieu of Sundays and holidays". In 1942 (Merchant Service Guild of Australasia v. Australian Institute of Marine and Power Engineers [5] ) Judge Kelly (as he then was) spoke of such a provision as designed to bring about "equivalence in the matter of an ordinary working week with the conditions of the generality of shore-workers regulated by awards of this Court". (The italics are mine.)

[63]

Now, in the Builders' Labourers' Case [5] Higgins J. had made an award which provided for payment of compensation in accordance with the Commonwealth Workmen's Compensation Act 1912 (which has since been repealed) and appointed a Board of Reference by which the liability to pay compensation, and the amount of compensation to be paid, should be determined. A Court consisting of six justices was unanimous in the view that these provisions were made without jurisdiction and were invalid, but the six justices were not unanimous in their reasons. Griffith C.J. and Barton J. were of opinion that the whole subject-matter of compensation for injury was beyond the jurisdiction which had been, or could be, conferred upon the Court of Conciliation and Arbitration. Isaacs J. was of opinion that a claim for an award relating to compensation for injury was an industrial matter which could be the subject of an industrial dispute, and that the subject-matter was within the jurisdiction of the Court. He held, however, that the provisions relating to the Board of Reference were invalid, and that these provisions were not severable from that part of the award which related to compensation. Gavan Duffy J. and Rich J. were less explicit on the point, but it seems a fair inference from what is said by them [1] that they were of the same opinion as Isaacs J. On the other hand, the fair inference from what is said by Powers J. [2] seems to be that he was of the same opinion as Griffith C.J. and Barton J. However, the view of Griffith C.J. and Barton J. [3] seems fairly clearly to be based on principles which cannot be now accepted consistently with the Amalgamated Society of Engineers v. Adelaide Steamship Co. Ltd. (The Engineers' Case) [4] , Clyde Engineering Co. Ltd. v. Cowburn [5] and H. V. McKay Pty. Ltd. v. Hunt [6] . Accordingly the Builders' Labourers' Case [7] must be taken to rest on the narrower ground only, viz., that there is no jurisdiction under the Conciliation and Arbitration Act to commit to any other tribunal or body the determination of amounts to be paid, or of questions arising, under an award.

[74]

It seems obvious, on the one hand, that any conception of arbitration as a means of "settling" industrial disputes involves the necessity of some such provision as s. 48, and, on the other hand, that any such provision is likely to live in the shadow of difficult constitutional questions. It was only by the narrowest of margins that what is now s. 48 (2) escaped being held unconstitutional in the Waterside Workers' Case [1] . The ground of attack was that the Parliament, in enacting that an award should continue in force after the period specified in it, was assuming directly to prescribe industrial conditions and therefore transcending the limits of the power given by s. 51 (xxxv.) of the Constitution. It is unnecessary to consider the questions raised in the Waterside Workers' Case [1] or the further somewhat intricate questions discussed in Federated Gas Employees' Industrial Union v. Metropolitan Gas Co. Ltd. (Gas Employees' Case) [2] , R. v. The Commonwealth Court of Conciliation and Arbitration; Ex parte Victorian Railways Commissioners (Australian Railways Union's Case) [3] and Australian Tramway and Motor Omnibus Employees' Association v. Commissioner for Road Transport and Tramways (N.S.W.) (Tramway Employees' Case) [4] . Nor is it necessary to discuss the purpose or effect of sub-s. (4) of s. 48, which first appeared in 1947, taking the place of the old s. 28 (3), which was considered in the two last-mentioned cases. For present purposes it is necessary only to point out that the present s. 48, like the old s. 28, contemplates an award made in settlement of a dispute and having operation, as an award representing the will of the Court or commissioner, only during a period which must be specified in it and which must not exceed five years. What follows is designed to cover any gap between the expiration of the specified period and the making of a new award, and is incidental and subsidiary. The position was thus explained by Dixon J. in the Australian Railways Union's Case [5] : "The award is kept alive under sec. 28 (2)", - now s. 48 (2) - "not by force of an arbitral decision, but by direct legislative enactment which operates notwithstanding that by arbitral decision a period of duration has been fixed for the award and that that period has expired. The authority to do this has been considered" - i.e., in the Waterside Workers' Case [1] - "to belong to the Legislature because to hold an existing industrial regulation in force during the interval between arbitral decisions made in the settlement of disputes appeared to be fairly incidental to the subject matter of sec. 51 (xxxv.). To empower the Court of Conciliation and Arbitration to make alterations in the terms of the award so kept alive seems a further incident of the power, because, if it is right to retain in force by direct enactment an expired award, it is a reasonable consequence that, in case of unfairness or hardship, the Court should be allowed to exclude or modify the operation of the terms or conditions found inappropriate. But it must be remembered that all this is a result of the expiration of the industrial settlement effected by arbitration. It is the consequence of the fulfilment of the arbitral regulation which the Court making the award must be taken to have intended ". (The italics are mine.) The reference to the power of the Court "to make alterations in the terms of the award so kept alive" is a reference to the old s. 28 (3), which, as has been said, has been replaced by s. 48 (4). Section 48 (4) is probably in some respects wider and in some respects narrower than s. 28 (3) but in any case what Dixon J. said is just as applicable to s. 48 as to s. 28.

[84]

Intervals off duty. The provisions of the logs on this topic are contained in cl. 22 of the log served by the Guild and in cl 27 of the log served by the Institute. These clauses demand that every employee shall be entitled to be absent from his vessel in port during intervals, each to be of twenty-four consecutive hours, the number of intervals and the place and time of giving them being prescribed in respect of three classes of vessels. The first class consists of vessels voyaging between places in Australia, and also vessels voyaging to places beyond Australia if the period of absence from the home port or the port of engagement of the employee does not exceed two months. In the case of these vessels, for each complete month of the employment, including time spent on leave, four intervals are to be given at the home port only, and five intervals are to be given at the home port or from midnight to midnight on Sundays or public holidays at certain other ports. There is a proviso which need not be recited. The second class consists of vessels voyaging to ports outside Australia and absent from the home port for a period exceeding two months but returning within six months. In this case, in and for each period of six months or lesser period of complete months of employment, including time spent on leave, intervals are to be given at the rate of twenty-four per six months to be given at the home port only, and at the rate of thirty per six months to be given either at the home port or from midnight to midnight on Sundays or public holidays at certain other ports. The third class consists of vessels absent from the home port of the employee for a period exceeding six months on voyages extending beyond Australia. In this case, in and for each year of such employment or lesser period of complete months of the employment, including time spent on leave, intervals are to be given at the rate of four per month at the home port and at the rate of five per month either at the home port or at certain other ports. The clauses contain a number of subsidiary provisions, to some of which reference will be made later.

[85]

The application for prohibition in respect of intervals off duty is based primarily upon the submission that the intervals would constitute annual or other periodical leave with pay, within the meaning of ss. 13 (1) (c) and 25 (c) of the Conciliation and Arbitration Act 1904-1951, by which power to make an award providing for such leave is denied to a conciliation commissioner and assigned to the Arbitration Court. The privilege of an employee described by the words "annual or other periodical leave" is a familiar incident of employments governed by contract, award or statute. The phrase refers to a specified period of permitted absence from work, without loss of wages, to which an employee becomes entitled at the end of each year or other selected period of his employment, and which is allowed because of, and as providing an opportunity for recreation after, the service rendered by the employee during that year or other period. Two essential characteristics of such leave are that the right to it is a right to interrupt for a predetermined period the normal course of duty in the employment, and that there is a particular purpose for which the right is claimed and granted, namely the purpose of recreation after the work of the period to which it relates. A clear distinction exists between a period of leave of this description and certain days which are not days of normal work and are enjoyed by employees in most industries at week-ends and on public holidays. In ordinary parlance these days are not referred to as periodical leave, for reasons which are not difficult to appreciate. On non-working days of the kind just mentioned, the employee is off duty, not because of a privilege entitling him to depart from the normal course of duty, but because the normal course of duty does not necessitate his working on those days. They are days which he has free simply in consequence of the manner in which the total working hours for a week or other period have been arranged by the terms of the employment for all employees to whom they apply. Thus where a normal working week of forty hours is provided for by specifying as ordinary working hours a period of eight hours between stated times on each day of the week (other than public holidays) from Monday to Friday inclusive, there is a residue of hours on each of those days, and a residue of days, which automatically fall outside ordinary working hours. They are of course available for recreation, but they are not the subject of any exception for that purpose out of the normal obligation to work; and their occurrence has no relation to any period for which the individual employee has worked.

[87]

The period of a month is taken as the unit of time with reference to which the number of intervals is to be calculated. This enables public holidays to be taken into account. It is stated in par. (i) of cl. 22 of the Guild's log, and in par. (j) of cl. 27 of the Institute's log, that the intervals claimed are based upon the assumption that there are only ten public holidays (scil. in each year), and an additional interval is claimed for every additional public holiday. Allowing for ten public holidays and fifty-two week-ends in a year, the monthly average of non-working days for which substitutes are to be allowed is 9.5. Clauses 22 and 27 of the respective logs provide for nine only; but as against that, cll. 23 and 28 provide for the addition of three days to an employee's annual leave on account of intervals not taken into consideration under the earlier clauses. Then both cl. 22 of the Guild's log and cl. 27 of the Institute's log provide in a sub-cl. (c) that in the case of an employee serving for any period less than one or more complete months, the employee shall receive for every 2.3 days of the employment not forming part of a complete month one additional home port interval. This preserves the proportion in which it is assumed that a month is divided between working and non-working days, namely twenty-one working days and nine non-working days. This division of the month is reflected elsewhere in the logs; since wages are claimed at monthly rates (cll. 15 and 17), the daily rate, which must be ascertained for some purposes mentioned in the logs, is to be reached by dividing the monthly cash wage (or that wage plus a fraction of the basic wage) by twenty-one: (cll. 1 and 4, definitions of "Daily Rate"). Finally, cl. 17 (e) of the Guild's log and cl. 27 (i) of the Institute's log contain provisions which emphasise the character of intervals off duty as making up as far as possible for the days on which employees on land are able to leave the scene of their labours and go about their own affairs. The former paragraph provides that while a vessel is at the home or residential port of an employee on a Saturday, Sunday or public holiday and there spends upwards of twenty-four hours, such employee shall be granted intervals under cl. 22 to the extent of the available time. The latter paragraph provides that if an employee performs work on a Sunday or public holiday in his port of residence, he shall be paid at the overtime rate and be given in his port of residence an additional interval; but if he performs work on a Sunday or public holiday in a port other than his port of residence he shall be paid at the overtime rate but the interval so worked shall be credited against him as one of his intervals under cl. 27.

[91]

The argument assumes that the "matter" which has to be considered for the purpose of deciding whether it is an industrial matter is the right to receive each amount of compensation as it becomes payable. It is that right and that only which will accrue after the termination of the employment. But the "matter" to be considered is the matter as to which the dispute exists; and the dispute exists upon the question whether the employment of the employees whose organisations are involved shall be upon the terms (inter alia) that employment injuries (as they may be called for brevity) shall be compensatable. That subject of dispute in my opinion falls squarely within the definition of industrial matters in s. 4 of the Conciliation and Arbitration Act. It is not a subject which is foreign to the employment, for the compensatable character of an injury is dependent upon its being caused to an employee (that is to say during the employment), and caused by illness or accident arising out of or in the course of the employment. A provision affecting an employer with a liability upon the happening of such an injury might with perfect appropriateness be included in an employment contract, for it would prescribe an incident of the relation existing between an employer as employer with an employee as employee. The topic is therefore within the general portion of the definition of industrial matters in s. 4: R. v. Kelly; Ex parte State of Victoria [1] . Moreover, it falls within both par. (b) and par. (h) of that definition, by which the privileges, rights and duties of employers and employees, and the terms and conditions of employment, are specifically included in the expression "industrial matters". It surely cannot be a relevant consideration that, if a provision for compensation is included in an award, the obligations of employers arising under the provision will fall to be discharged by payments to be made after the relationship of employment has ended. If a claim with respect to wages included a provision that payment of the whole or a portion of the wages should be deferred until after the termination of the employment, presumably no one would maintain that the provision for deferment precluded the claim from being a claim as to an industrial matter.

[101]

The effect of s. 48 (1) and (2) is that after (a) the expiration of the period specified in an award, which must not exceed five years from the date upon which the award comes into force, and (b) the making either of an order determining the award or of a new award, the award no longer requires compliance with its provisions. Remedies for breaches already committed doubtless remain, but no further breach can occur. Consequently, if a provision for compensation or for pensions were inserted in an award, a person becoming entitled under that provision could not receive the full benefit intended for him unless, in the case of a pensioner, he were to die during the currency of the award, or, in the case of a person receiving compensation, he were to receive a lump sum or recover from his incapacity or die during the currency of the award. Thus some persons would receive the full benefit contemplated, and others only a greater or less portion of it according as their rights accrued early or late in the life of the award. The obvious conclusion would seem to be that an award is a completely unsuitable instrument for the establishment of a scheme for pensions or compensation. But all this falls far short of saying that the character of pensions or compensation is such as to preclude the possibility of dealing with the subject at all in an award of limited duration. It clearly is possible to make a provision on these matters which will be enforceable in respect of all moneys becoming payable under it during the life of the award. That life may prove to be a very long life, by virtue of s. 48 (2); equally it may be a very short life. For that reason a conciliation commissioner may very well decide that it would be ridiculous to make a provision which must inevitably produce inequalities and must prove highly unsatisfactory in a great proportion of cases falling within it. But what we have to say, if we are to grant prohibition, is that s. 48, by imposing a time limit upon the operation of an award, deprives the commissioner of power even to consider these matters. I can see no warrant for saying that. I may add that I find no assistance in sub-s. (2A) which was inserted in s. 48 by the Act No. 18 of 1951. That sub-section does not suggest that sub-s. (1) prevents the inclusion in an award of a provision in relation to long service leave with pay because there is something essentially incompatible between such leave and a time limit upon the award. What it does suggest is that sub-s. (1), standing alone, would prevent the inclusion in an award of a provision for such leave if it were so expressed as not to be capable of operating, or of operating fully, during the period which the award specifies for its own continuance in force, the reason doubtless being that the term of the provision, not the nature of its subject-matter, would be inconsistent with the specification of a time limit for the award as a whole. The precise effect of sub-s. (2A) is not a matter which need be considered in this case; the only material question is whether it has a relevant implication, and in my opinion it has not.