TA Robinson & Sons Pty Ltd v Haylor

Nov. 18 Dixon C.J., McTiernan, Williams, Webb, Kitto and Taylor JJ.

The Court delivered the following written judgment: -

This is an appeal by special leave from an order of the Chief Industrial Magistrate at Sydney made under ss. 4, 12 and 14 of the Long Service Leave Act 1955 N.S.W., No. 38 of 1955. The order was for payment to the complainant, who is the respondent in this appeal, of a sum of £294 payable by the defendant appellant under that Act on account of long service leave on the termination of the complainant's employment by the defendant after almost twenty-seven years of service. The appeal was instituted on the footing that the case was within the federal jurisdiction of the Chief Industrial Magistrate's Court. The reason is that the defence raised before the chief industrial magistrate was that the parties were bound by a federal award or determination settling an industrial dispute and that to apply the provisions of the State Long Service Leave Act 1955 was inconsistent with the settlement, so that pro tanto those provisions were invalid under s. 109 of the Constitution.

The award in question is the Footwear Manufacturing Industry Award 1951 made by a conciliation commissioner on 14th March 1951 and expressed to come into operation as from the beginning of the first pay period to commence in April 1951 and to remain in force until 31st March 1954. At the time of the expiry of the fixed period of the award thus specified, s. 48 of the Conciliation and Arbitration Act 1904-1952 governed the continuance of its operation and by sub-s. (2) of that section it was provided that the award should stay in force until a new award be made. The award however contained no provision concerning long service leave and no reference or allusion to it whatsoever. That was not because the power of the conciliation commissioner to deal with such a question was expressly excluded, as was the case when the award was made which formed the subject of the decision in Collins v. Charles Marshall Pty. Ltd. [1] . For when the award in the present case was made no such express exclusion existed. It may be that as a result of the limitation upon the fixed period for which an award may be made no provision for long service leave could have been made for the reasons in effect given in Reg. v. Hamilton Knight; Ex parte Commonwealth Steamship Owners Association [2] . But that may be passed by. The absence from the award of any provision relating to long service leave might be thought to form at the threshold a fatal obstacle to the success of the appellant's case. The theory upon which the operation of State law gives way in favour of an award providing an inconsistent industrial regulation imputes to the Conciliation and Arbitration Act an intention to confer power upon the arbitrator to make on a subject of dispute an exhaustive determination containing an industrial regulation that, on the subject with which it deals, will cover the ground to the exclusion of any different or further provision. It was by Clyde Engineering Co. Ltd. v. Cowburn [3] and H. V. McKay Pty. Ltd. v. Hunt [4] that that result was established. Clearly enough an award or an agreement having the force of an award did not in itself answer the description of a law of the Commonwealth within the meaning of s. 109 of the Constitution. For that reason, no doubt, s. 30 of the Commonwealth Conciliation and Arbitration Act 1904 provided that when a State law or an award, order or determination of a State Industrial Authority is inconsistent with an award or order lawfully made by the federal Arbitration Court, the latter should prevail and the former, to the extent of the inconsistency, be invalid. In Ex parte McLean [5] his understanding of the principle on which the Court had acted was stated by Dixon J. It is convenient to repeat two short passages. The first refers to the familiar test of inconsistency. "The inconsistency does not lie in the mere coexistence of two laws which are susceptible of simultaneous obedience. It depends upon the intention of the paramount Legislature to express by its enactment, completely, exhaustively, or exclusively, what shall be the law governing the particular conduct or matter to which its attention is directed. When a Federal statute discloses such an intention, it is inconsistent with it for the law of a State to govern the same conduct or matter" [1] . The second states the result of the decided cases as to the application of s. 109 to awards. "The view there taken, when analyzed, appears to consist of the following steps, namely: (i) The power of the Parliament to make laws with respect to conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State enables the Parliament to authorize awards which, in establishing the relations of the disputants, disregard the provisions and the policy of the State law; (ii) the Commonwealth Conciliation and Arbitration Act confers such a power upon the tribunal, which may therefore settle the rights and duties of the parties to a dispute in disregard of those prescribed by State law, which thereupon are superseded; (iii) s. 109 gives paramountcy to the Federal statute so empowering the tribunal, with the result that State law cannot validly operate where the tribunal has exercised its authority to determine a dispute in disregard of the State regulation" [2] . If this be the principle, and it has been repeatedly acted upon, how can an award which has nothing to say about long service leave as a topic and contains no provision compliance with which is not compatible with the Long Service Leave Act 1955, lead to the invalidity of that Act so far as it otherwise would affect persons who are in fact bound by the award? The answer given for the appellant is that the silence of the award on the subject reflects a determination by the conciliation commissioner arrived at in settlement of the industrial dispute that there should be no industrial provision for long service leave and that for that reason the ground is covered to the exclusion of the State Act subsequently passed. It appears that the industrial dispute for the settlement of which the award was made arose out of the delivery of a log of claims to various employers by or on behalf of the Australian Boot Trade Employees' Federation, a registered organisation of employees. One of the claims was entitled "Long Service Leave". It contained what must be taken as a demand, although it was expressed proleptically as the term of an award. The claim was as follows: - "(a) Any employee having been continuously in one of the industries covered by this Award for a period of ten years shall be granted, in addition to holidays prescribed in clauses 18 and 19 hereof an additional period of 12 weeks' continuous leave on full pay. (b) Leave for long service shall, after ten years' service leave has been granted, again be granted at five-yearly intervals and at the first of these periods leave shall be for 12 continuous weeks' leave, and at subsequent five-yearly intervals shall be extended in each case by an additional four weeks' continuous leave." In the reasons which the conciliation commissioner gave for his determination he referred to this claim thus - "Long Service Leave. This claim was refused. I have held on prior matters that the granting of long service leave was one for industry generally and should not be dealt with on a piece meal basis." Plainly "piece meal" in this sentence means by particular awards. As the power to legislate for industry generally resides with the States it may be that the conciliation commissioner had State legislation in his contemplation. But, be that as it may, there is nothing to show that he meant that his determination should cover the ground of long service leave to the exclusion of any right arising from any other source of authority. If he had entertained any such intention he should have expressed it in his award: see s. 47 of the Conciliation and Arbitration Act 1904-1952. But, had he done so, it may be doubted whether such a provision would have been within the ambit of the dispute arising from the organisation's log and the employers' failure to agree to its demands. The difficulties do not stop there. There is no decision of this Court which applies the doctrine formulated in McLean's Case [1] to anything but the provisions of an award or an agreement having the force of an award. The doctrine has not been applied to the conclusion or reasons of a federal industrial arbitrator that lead to, or lie behind, his award, and there seems no support in the Act for treating that piece of legislation as giving paramountcy to anything but the provisions of the award.

1. (1955) 92 C.L.R. 529; (1957) A.C. 274; (1957) 96 C.L.R. 1. 2. (1952) 86 C.L.R. 283, at pp. 293-295, 318-324. 3. (1926) 37 C.L.R. 466. 4. (1926) 38 C.L.R. 308. 5. (1930) 43 C.L.R. 472. 6. (1930) 43 C.L.R., at p. 483. 7. (1930) 43 C.L.R., at pp. 484, 485. 8. (1930) 43 C.L.R. 472.

There is still a further consideration. After all it is not the will of the arbitrator which now gives force to his settlement of the dispute. The period of his award as he fixed it has expired. In fact it had expired before the Long Service Leave Act 1955 was passed. The actual position is that s. 49 (3) (a) of the Conciliation and Arbitration Act 1956 (No. 44 of 1956), operating upon so much of s. 7 of that Act as inserted s. 16AT (now numbered s. 58), is the statutory provision which keeps alive and gives force to the determination of the conciliation commissioner of 14th March 1951. It only does so in so far as it is expressed in the award. The terms of the award have force only because it is to be deemed to be an award of the Commonwealth Conciliation and Arbitration Commission so that what is now s. 58 can operate upon it.

The fact is that there is an entire lack of foundation for the contention that the Long Service Leave Act 1955 is displaced in its application to those bound by the Footwear Manufacturing Industry Award 1951.

For the foregoing reasons the appeal should be dismissed.