R v Isaac; Ex parte State Electricity Commission - [1978] HCA 33 - HCA 1978 case summary — Zoe

CTHHCA

R v Isaac; Ex parte State Electricity Commission

[1978] HCA 33

High Court of Australia|1978-07-01|Before: Aickin JJ, Gibbs J

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Source facts

Court

High Court of Australia

Decision date

1978-07-01

Before

Aickin JJ, Gibbs J

Source

Original judgment source is linked above.

Judgment (91 paragraphs)

[1]

High Court of Australia Gibbs, Stephen, Mason, Murphy and Aickin JJ. R v Isaac; Ex parte State Electricity Commission (Vic) [1978] HCA 33

[2]

On or about 30th April 1970 the Municipal Officers' Association of Australia ("M.O.A.") served upon the State Electricity Commission of Victoria ("S.E.C.V."), the Electricity Trust of South Australia ("E.T.S.A.") and certain other electricity authorities a letter demanding that they should grant to their employees the salaries and conditions of service set out in a log of claims which was attached to the letter of demand. Amongst other things it was demanded that the ordinary hours of duty of persons employed in or in connexion with the operation of electricity undertakings conducted by the authorities should be thirty per week. The demands were not complied with and on 19th May 1970 M.O.A. notified the Conciliation and Arbitration Commission ("the Commission") of the existence of an industrial dispute between the M.O.A. and the authorities, including S.E.C.V. and E.T.S.A. On 8th June 1970 a Commissioner found that an industrial dispute existed in a number of States between M.O.A. and S.E.C.V. and E.T.S.A. and other authorities. On 18th October 1971, in part settlement of the dispute, a Commissioner made a consent award entitled the Electricity Trust of South Australia (Staff Conditions) Award, 1971 ("the E.T.S.A. Award") [1] . The S.E.C.V. did not appear before the Commission when this award was made and is not one of the persons on whom the award is intended to be binding (cl. 32). By cl. 5 of the award the ordinary hours of work for a day worker are to be thirty-seven and a half but there are exceptions (apparently wide in their scope) in the case of which the hours are to be forty. On 1st November 1976 M.O.A. made application for an order varying the E.T.S.A. Award, by, in effect, making the ordinary hours of work thirty-seven and a half in all cases. The application was numbered C. No. 3966 of 1976. On 14th January 1977 E.T.S.A. also made application to vary the E.T.S.A. Award; its application was numbered C. No. 5003 of 1977.

[30]

It is too late to deny that the legislative power derived from s. 51 (xxxv.) of the Constitution does not extend far enough to enable the legislature to give to the Arbitration Court a power of varying an award within the limits of the original industrial dispute, and that is so whether the variation is made during the period specified in the award for its operation or during the period thereafter whilst it remains in operation by virtue of s. 48 (2). The award is in operation as a settlement or determination of the dispute and, within the limits arising from the subject matter and the boundaries of the dispute, the court may revise or review the settlement it has made. and went on to say [21] : It must be incidental to the prevention and settlement of industrial disputes by arbitration to empower the arbitral tribunal to vary any of its awards so long as it is in operation, not only to correct or improve upon the provisions it contains independently of change of circumstances, but also to meet altered conditions. It is true that the power must be exercised in respect of the subject constitutionally described as conciliation and arbitration for the prevention and settlement of industrial disputes. But that subject includes all that is incidental thereto, and to maintain a settlement made by award of an industrial dispute in an expedient and satisfactory form adjusted to changed conditions must be incidental to the subject. Variations cannot go beyond what is appropriate to the general purpose of the settlement of the industrial dispute and continuing the settlement in force. That means that the limits set by the scope and nature of the original dispute cannot be transcended. Dixon C.J. stated that the words "any reason", which appeared in s. 49 and now appear in s. 59 (2), must be understood to mean "any reason which is relevant to conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State and what is incidential thereto" [22] . 1. (1953) 89 C.L.R., at pp. 473-474. 2. (1953) 89 C.L.R., at p. 474. 3. (1953) 89 C.L.R., at p. 476.

[40]

Proceedings for a variation of a consent award made in partial settlement of an interstate dispute will throw that settlement into question but only to the extent of the variation which is proposed. The issue for the Commission is not whether the parties to the original dispute should be restored to the status quo ante but whether the award should be varied, in particular in the respects proposed. Though the Commission's jurisdiction derives from the foundational interstate dispute, in exercising its power to vary it is concerned only to inquire whether for any reason relevant to the prevention and settlement of industrial disputes extending beyond the limits of one State the award should be varied. If the award sought to be varied settles part of an interstate dispute, being so much of that dispute as relates to the relevant industry in a particular State, the Commission's responsibility is to maintain the settlement made by the award "in an expedient and satisfactory form", to use the words of Dixon C.J. in Reg. v. Kelly; Ex parte Australian Railways Union [25] , whether that involves a correction or improvement in its initial provisions or whether it entails an adjustment of those provisions to changed conditions. But in either event, unless the proposed variation stems from a fresh interstate industrial dispute, the Commission will in general be concerned to maintain the award as an effective settlement of that part of the original dispute which it was intended to settle. So long as the variation sought to be made does not alter the character of the award as a settlement of so much of the original dispute as affected the industry in the particular State there is no reason why an employer not engaged in the industry in that State should be considered to be a party to the award, if not named as such, or a necessary party to the proceedings for variation. The fact is that he is not bound by the provisions of the award and he has no interest which will be directly affected by its provisions.

[60]

On 21st May 1972 the Electrical Trades Union of Australia ("the E.T.U.") and certain other unions notified the Commission of the existence of an industrial dispute brought about by the refusal of E.T.S.A. and the S.E.C.V. to accede to a letter of demand and a log of claims served on them. On 31st May 1972 Mr. Commissioner Lyttleton found that an industrial dispute within the meaning of the Act existed between the E.T.U. on the one hand and E.T.S.A. and the S.E.C.V. on the other. The S.E.C.V. was represented in those proceedings. On 26th June 1972 in part settlement of that dispute Mr. Commissioner Lyttleton certified an Agreement as an Award under the Act under the name The Electricity Trust of South Australia (Metal Trades) Agreement 1972 ("the Agreement"). The S.E.C.V. was not represented on that occasion, and so far as appears, it was not informed that the application was to be made. On 28th June 1977 the E.T.U. and the other unions applied for an order varying the Agreement (C. No. 3412 of 1977) by reducing the hours of work to thirty-seven and a half per week. This application was likewise referred to a Full Bench. Applications C. No. 3966 of 1976 and C. No. 3412 of 1977, along with the other matters, came on for hearing before a Full Bench, comprising Mr. Deputy President Isaac, Mr. Justice Alley and Mr. Commissioner Vosti, on 19th September 1977 when applications by the Federated Engine-Drivers' and Firemen's Association of Australasia ("the F.E.D.F.A."), the E.T.U., E.T.S.A. and the M.O.A. to vary hours of work under four separate awards (including the consent Award made on 18th October 1971 by Mr. Commissioner Gough) were heard together. On that day counsel for the S.E.C.V. and certain other Victorian public authorities sought to appear on the basis that they were appearing for parties to the relevant disputes. At the same time other counsel sought to appear for the Hydro-Electric Commission of Tasmania and the State Energy Commission of Western Australia. After hearing argument the Full Bench rejected the applications by the S.E.C.V., the Hydro-Electric Commission of Tasmania and the State Energy Commission of Western Australia to be heard as parties to the proceedings, but gave no reasons for that decision. The question of leave to intervene was adverted to but adjourned. We were informed by counsel that such leave was subsequently granted.

[62]

It is too late to deny that the legislative power derived from s. 51 (xxxv.) of the Constitution does not extend far enough to enable the legislature to give to the Arbitration Court a power of varying an award within the limits of the original industrial dispute, and that is so whether the variation is made during the period specified in the award for its operation or during the period thereafter whilst it remains in operation by virtue of s. 48 (2). The award is in operation as a settlement or determination of the dispute and, within the limits arising from the subject matter and the boundaries of the dispute, the court may revise or review the settlement it has made. Section 49 of the Act, which confers the power to set aside any terms of an award, and the power to vary it, does not distinguish between the specified period of the operation of an award and the period when it is continued in operation until a new award is made. There is nothing to necessitate such a distinction. But the reason for reviewing or revising the terms of an award may be found in changing circumstances as well as in a reconsideration of the wisdom or expediency of the provision independently of any change brought by time and the longer an award is kept in force, the greater is the likelihood of circumstances changing so as to make a variation necessary or expedient. That the provision is valid which continues the operation of an award after the expiry of its fixed term is of course well established. From that conclusion it follows almost as a corollary that the Arbitration Court may be empowered to vary the terms of the award in order to give it a reasonable application to altered conditions. It must be incidental to the prevention and settlement of industrial disputes by arbitration to empower the arbitral tribunal to vary any of its awards so long as it is in operation, not only to correct or improve upon the provisions it contains independently of change of circumstances, but also to meet altered conditions. It is true that the power must be exercised in respect of the subject constitutionally described as conciliation and arbitration for the prevention and settlement of industrial disputes. But that subject includes all that is incidental thereto, and to maintain a settlement made by award of an industrial dispute in an expedient and satisfactory form adjusted to changed conditions must be incidental to the subject. Variations cannot go beyond what is appropriate to the general purpose of the settlement of the industrial dispute and continuing the settlement in force. That means that the limits set by the scope and nature of the original dispute cannot be transcended. All members of the Court made it clear that the power to vary an award, either during the period for which it was expressed to operate, or during the statutory extension of its operation, can operate only within the ambit of the original dispute. 1. (1910) 11 C.L.R. 1. 2. (1953) 89 C.L.R. 461, at pp. 473-474.

[65]

The present case appears to me to turn on the nature and extent of the principle involved in the decision in the F.E.D.F.A. Case because the facts of the present case involve significant differences from those in the case cited. It is necessary to note first in a little detail the circumstances dealt with in the F.E.D.F.A. Case as they appear from the case stated by Powers J. (in his capacity as a judge of the Commonwealth Court of Conciliation and Arbitration (as it was then constituted)). The log of claims had been served on respondents in Victoria, New South Wales, South Australia, Western Australia and Tasmania in 1918. Prior to 25th July 1919 Powers J. had by consent agreed to delay the making of an award against the Tasmanian respondents until the witnesses from the parties could give evidence in Melbourne, which was not then possible because of quarantine restrictions. Prior to 15th September 1919 Powers J. had found that an industrial dispute extending beyond the limits of one State existed between the F.E.D.F.A. and certain respondents in Victoria, New South Wales and South Australia, but he did not at that time make any finding as to a dispute involving respondents in Western Australia or in Tasmania. On 15th September 1919 he made an award settling the dispute as to the respondents in the States of South Australia, Victoria and New South Wales, the respondents in Western Australia having settled their dispute out of court before any award was made. At an adjourned hearing on 29th September and 31st October some of the Tasmanian respondents appeared before Powers J., others who did not appear had been duly summoned, and it was not then contended that there had not been an industrial dispute between those respondents and the F.E.D.F.A. or that there was not up to 15th September 1919 an industrial dispute extending beyond the limits of one State. Powers J. then found, on 31st October 1919, that on and prior to 15th September 1919 there was an industrial dispute extending beyond the limits of one State between the F.E.D.F.A. and respondents in Victoria, New South Wales, South Australia and Tasmania and that that dispute had not been settled by 31st October so far as many of the respondents in Tasmania were concerned, but that it had been settled as to the respondents in Victoria, South Australia and New South Wales before that date by awards and agreements. He then referred to the High Court a question of law, namely, "Can the Court of Conciliation and Arbitration make an award binding on the respondents in the State of Tasmania only, after the part of the common dispute with the respondents in all the five States, including Tasmania, had been settled by or for all the respondents in the other four States by award or by agreements?" It is to be noted that no complaint was made by the Tasmanian respondents that they had not had an opportunity to be heard at the hearing on 15th September 1919 when the award was made as to the other States. Indeed, the holding over of the making of an award against Tasmanian respondents was by consent. Moreover, as at 15th September 1919 no dispute had been found which included the respondents in Tasmania. The decision of the Court, as expressed by Knox C.J., Gavan Duffy and Starke JJ., was [38] :

[84]

But does it disable the court from making a variation because to do so would be in opposition to the common desire of the parties? It is perhaps wise to limit the answer to the particular case. For in questions concerning the artificial conceptions which have promoted the growth of the jurisdiction of the Arbitration Court strange and unexpected combinations of fact are apt to present themselves. The particular cases before us possess certain features that should be noted. In the first place in none of them do the parties by any means desire that the award as a whole shall go and be replaced by their agreement. In the next place, the original claims or demands in reference to wages are not withdrawn, still less are all the demands in the log. In the third place, what the parties are in accord about is the retention in the award itself of the clause relating to wage adjustment, the award which is the instrument of the Arbitration Court resting for its force upon its authority. It appears to me that these considerations in themselves cannot exclude the court's powers over the terms of its own instrument. But the central point of the objection made by the prosecutors on this score is that their accord on the subject of retaining the wage adjustment provision shows that the Arbitration Court, in excluding wage adjustment, cannot have been exercising its power in order to arbitrate, in order to conciliate, or in order to prevent or settle an industrial dispute. For there was complete concord on the very question so far as the parties went. This may seem a striking point, but if so it is only because it leads the mind away from the consideration upon which the use of the power to vary made by the Arbitration Court depends. That consideration is that it is part of the function committed to the Arbitration Court to adjust a subsisting settlement of an old dispute maintained in operation by s. 48 (1) or (2) of the Act to changing circumstances and to do so for the purpose of continuing the settlement in force in a form it considers appropriate, not simply because it contents the parties, but because taking into account economic and other consequences, it is, whilst within the ambit of the old dispute, the form of settlement which as things stand the court considers it may most properly continue in force. 1. (1953) 89 C.L.R., at pp. 476-477.