Trolly, Draymen and Carters Union of Sydney and Suburbs v Master Carriers Association of New South Wales [1905] HCA 20

ON APPEAL FROM THE SUPREME COURT OF NEW SOUTH WALES.

Inlvtrial Arbitration Act (N.S.W.) (No. 59 of 1901), sec. 36 (2) - Preference to H.C. oF A. 'wiousts - Persons offering their labour at the same time - Notice to union of 1906.

labour required - Jurisliction of Court af Arbitration to compel - Prohhit ~ Construction of Statutes. Sypxer, June 13, 14, See, 36 sub-sec. () of the Industrial Arbitration Act (N.8.W.) 1901, provides, "yg"

_ inter alia, that the Court of Arbitration, in its award or by order made on the = _ application of any party to the proceedings before it, may "direct that a8 Grimey 0.7, between members of an industrial union of employés and other persons offering Harton and theit labour at the same time, such members shall be employed in preference

'The Court of Arbitration, in an industrial dispute between the appellantand

'ssponlent unions, made an award by which preference was ordered to be given

40 members of the appellant union on compliance with certain conditions as

_ Arrest. from a decision of the Supreme Court of New Sim

• Wales.

to the admission of members, and embodied in the order for p direction that any member of the respondent union requting labour whenever reasonably practicable having regard to existing exigens, the secretary of the appellant union of the labour required, Held, that the Court had no jurisdiction to make the directions toma

Decision of the Supreme Court, Hx parte The Master Carrier dy YN, S. W., (1905) 5 S.R. (N.S.W.), 77, atlirmed.

The appellant union was an industrial union of employ registered under the Industrial Arbitration Act (NSW), 190 and the respondent association was also registered under th

"27. If and so long as the rules of the union permit, or th union admits, a competent driver of sober habits and g repute to become a member " (on compliance with eertain ments which it is not necessary to set out), "then as b members of the claimant union (whose secretary, when reasonably practicable, having regard to existing exiga shall be notified of the Inbour required), and other persons ing their labour at the same time, members of the claim union shall be employed in preference to such other pers other things being equal," (subject to certain exeeptions mit material in this appeal, and with a direction that non-uniol entering the employment of members of the respondent associa should apply to become members of the appellant union witht a specified time), "When unionists and non-unionists employed together they shall work in harmony, and re equal pay for equal work.

The respondent Association on 15th February, 1905, applied

rule nisi for a prohibi from further proceeding in respect of so much of the award directed that the seeretary of the union should be notified of th

sabe ruired, and that non-unionists entering the employment themembers of the association should apply to become members of the union. 7

he grounds on which the rule nisi was granted were that the ort of Arbitration had no jurisdiction to order that members "ithe respondent association should give the seeretary of the lant union notice of the labour required; and had no juris- jetio to order non-tnionists to become members of the appellant ion, as it had done in its award.

The Full Court (consisting of Darley C.J., Owen J., and Pring J.), nude the rule absolute on both grounds, unanimously as to the "geond ground, but as to the first ground by a majority, Owen J. dissenting (1).

"Te was from the decision of the Supreme Court as to the first _qrnd that this appeal was brought.

Gordon, K.C. and Hughes, for the appellant union, The Court gf Arbitration had power to direct that notice should be given. Tris consequential upon the power to order preference to unionists enferred by sec. 36 (b), and is contained in it by necessary implication. Without the power to order that notice shall be "iven effect cannot be given to the preference clause. Unless 'sme such provision is embodied in the award, employers who dijeet to unionist labour, can altogether nullify the preference

• cause by giving notice to non-unionists and not to unionists. It

'imposes no hardship on those who are willing to employ unionists, tut ensures that unionists shall get the benefit which the legisla~ fue intended they should obtain from preference. Without _itthe umonist has not the opportunity to apply for employment 'nd so plaee himself in the position of equality with non-unionists. [Bartox J - Is the opportunity equal if the unionists are to havea special notice over and above that given to non-unionists ?] __ There is nothing to prevent the employer inviting non-unionists apply. Where labour is required immediately there is no

iction upon the right to engage labour of whatever kind is 'illable. The notice is only to be given, " whenever reasonably

ticable, having regard to existing exigencies." This is a

'Tue Trouuy, DRayMEN AND CARTERS Ustox oF 'Sypsey AND Sunurss v. 'Master Carriers ASSOCIATION or NSW,

'Tus Trot, ence to unionists is of the very essence of industrial ari AND CARTERS:

Searmas "it by the Act are not to be taken away from it, excepthy enna Tue Masten Words or necessary implication: Randolph v. Milman Q)

power within the meaning of sec. 26 (b), to male any on award in pursuance of an order made under see. 36 ()

Taylor v. Edwards (1). The power of the Court to mabey orders necessary to give effect to powers expressly conferred tg

[Barton J - But even without the power to order noties. provision for preferenee is clearly workable, though posiym so effectively as with it.]

Without the notice the preference clause is in practice i tive. Before the Act was passed unionists and non-uni were on equal terms. The policy of the Act was to e organisation of labour, and consequently advantages were to members of bodies organised under the Act, eg,, preference ts unionists. It deals not with individuals as such, but as meub of combinations. 'The only way in which the unionist ean notice is through the representative of his union, and, therein provision must be made for such notice in praetice in onder carry out the policy of the Act. The non-unionist remains the same footing as before ; he is outside the purview of the A and must attend to his own interests. The preference is intended to be an advantage, not a mere form; an advantage given a3 compensation for giving up the right to refuse to work with non-unionist. The interference with the individual freedom more than compensated, both to employer and employé, by the benefits arising from the change, The favour to unionists sufficiently safeguarded by the condition that other things a be equal.

The Court of Arbitration must have power to make all nes sary subsidiary orders and directions, and, if so, the qu whether some particnlar direction is a proper one would le matter for appeal merely, not prohibition, and the Aet provid' that there shall be no appeal.

[GrirrirH, C.I. - One difficulty is this: The Act deals disputes between employers and employés, not persons ™ desire to become such. Where is there any jurisdiction given

Com of Arbitration to decide a question between a person H.C. or A.

i 1905. igo desires to be an employer, and one who desires to be an z euployé 2] 'Tux Trott, Thut is clearly within the contemplation of the legislature in ieee 36 Ustos oF ee 86. SypvEY AND 'SUBURBS

Cullen K.C, (with him Windeyer),for the respondent association. 'yy Masten The words of sec. 36 (b) are clear, and no question of implication ,CA#RIERS natise. The Court of Arbitration has no jurisdiction until oF N.S.W "Inboar has been offered and accepted. It cannot go behind the = vtiod of such an offer and impose a duty upon the employer

wrehand, Sec, 36 (b) was intended to guard against the

wsibility of an employer saying, as he could before the Act,

'no unionist need apply." It cannot be made to mean, "you

mist act in such a way as to prevent competition on equal terms

'jy non-unionists." The governing words are "offering their

labour at the same time." The provision in the Act may not

as effective as some people think it should be, but the Court

'is not at liberty, on that account, to wi teyond them, in order to make this provision more effective for he purpose which the legislature is supposed to have entertained: Rusiv. Edinburgh Corporation (1). 'The Act is one in restriction ofthe common law rights of the subject and must not be strained 9 as to increase the restriction: Cluncy v. Butchers' Shop Employés Union (2); Master Retailers Associution of N.S.W. v. Slop Assistants Union of N.S.W. (3). The employés are to offer their labour, and until they do so the question of preference tamot arise, As was said in Clancy y. Butchers' Shop Employés Union, (2) after the relationship of employer and employé has 'ded the employer is free to do as he pleases, so here, until the woment arrives at which the Act is to operate upon the two ies, the employer is equally free, and any attempt by the Court pimpose restrictions upon him is beyond its jurisdiction. 'There 'nothing in the Act giving the Court power to make employers *k unionists, though the latter are given certain advantages aud privileges when offering their labour, and when in employ-

(1 (1905) a.c., 21. (2) 1C.LR., 181. (3) 2C.LR., 94.

H.C.orA. ment. [He referred to sec. 35 , equality of opportunity to apply. It is only where the apy Tue Trouy, are there that inequality arises, in the form of preference to "pohans | who are unionists. The argument that the Act conten <Ustox or" only organised labour, and that therefore notice should he Suavnse to the unionists through the union, is based on the assum

'Tux Masrmx that the Court has power to order that notice shall be Camm Tf it has that power, the direction in question may be a p or N.S.W. one. The question is whether it has the power, not whe

has exercised a power in an improper way. There is noreug why the words should not be construed literally. So eonstm they are clear and unambiguous and confer an important p It should not be assumed that they were intended to confer ay

other or greater power than is contained in the plain 'meaning 0 the words.

Gordon K.C. in reply. Rossi v. Edinburgh Corporation does not apply. In that case the magistrates, whose juris was in question, had in effect assumed the power to control op tions that were altogether outside the scope of the Act confers the jurisdiction.

the appellant union should be notified by an employer belong to the respondent association of the labour required. 'That a a

order was made without talk Owen J. was of the contra opinion, thinking that the order was really ineidental to the pv vision iu the Act giving the Court power to order preference

jonists under certain circumstances. The only question is H.C. or A. ether the order was within the competence of the Court of 105. ee itration. If that Court: Res power to make an order of this rip Trot, inl, the reasonableness of it cannot be made the subject of ,DRNBN, | al, It is a mere question of jurisdiction. OMeae 2 e é ni + SYDNEY AND The Arbitration Act, as was pointed out in the case of Clancy " Serums : Butchers' Shop Hmployés Union (1), is an act in restriction of yy sisson liberty of the subject, and this Court said in that case (2): Canes

sthough that is no reason why the fullest effect should not be "or N.S.W.

{ven to its provisions, it is a reason why the meaning should not gimme. strained as against the liberty of the subject." In that case it "yasalso pointed out that the jurisdiction of the Arbitration Court fodeal with industrial matters began when the relationship of 'employer and employé came into existence, and that the Act {id not empower the Court to control the conduct of employers 'iter the employment had terminated or at hours when the whtionship had ceased to exist. Our attention has not been 'iimyn to any provision in the Act which authorizes the Court to interfere with the freedom of an employer befure the relationship of an employer and employé has come into existence. The "inoment of engagement, when it comes to fixing the terms of employment, is the first moment at which the powers conferred hy the Act seem to attach. 'The only provision which has been suggested as extending this power is that contained in see. 36 of the Act, upon which the appellant union relied, which provides thet the Court in its order, award or direction may "direct that, ssbebveen members of an industrial union of employés and other Pesons, offering their Iabour at the same time, such members stall be employed in preference to such other persons, other things 'ring equal," and they are further to appoint for that purpose a tribunal before which the question of equality is to be decided. Theteisno question as to the later words of the section, We have only to construe these words, "the power to direct that as 'etween members of an industrial union of employés and other ns, offering their labour at the same time, such members 'hall be employed in preference to such other persons, other things Tring equal."

H.C. oF. Tt is contended for the appellant that incidentally that 1905. authorizes the Court to make an order for the Purpose of br about the result that members of a union shall always be DEBS, position to offer their labour at the same time as other p Usios or and that, unless there is some such power, the provision ism Sybex axp i f Scscxss We have, however, to consider the words of the Statute, and iti 'Tue Masten to be observed, that the power which is given to the Court to, (azmimas the direction in question, is limited to the case in whieh mem cf NSW. of an industrial union and other persons are "offering their labo

comms, at the same time." Those last words are the governing

more than is contained in that provision, unless the power wl it is asked to exercise is one which is necessarily involved in ord

that the Court, for the purpose of bringing about the enn of things that members of unions and other persons may their labour at the same time, may give a direction that th employer shall give notice of some sort before he engages body. Now it might, no doubt, be considered reasonable, fir

the purpose of enabling members of a union to put themseres

be required to give a public notice that he will require labourat certain time. If such a provision were in the Act, expressly ot impliedly, the Court of Arbitration could give any directions the subject it might think fit. It might preseribe the length notice to be given, the persons to whom it should be given, the mode of giving it, whether by advertisement or otherwise, andi the exercise of its diseretion the Court would have absolute po and no other Court could control it. But would such a powers that be consistent with the liberty of the subject existing at mon law, and continuing so far as it was not clearly taken a by the Act 7 -

Such a condition would involve, of course, a remarkable inter ference with the liberty of the employer, that he should ue allowed to engage a servant without giving notice of his ag tion to do so. For, whether the prescribed notice was publica private, there would be no difference in principle. In consid

question whether such a provision is to be implied in the H: C.or a. sf it is important to bear in mind that, if it is, the discretion of ae tie Court is unlimited and cannot be controlled. Is it a neces: te Trou, inference from what the legislature has said that it did , Pmasaes " nd to confer such a power ? I confess that I cannot see any Ustos or fnandstion for the argument. Employers are free to conduet "OS™ AS" tier businesses as they please, except only so far as they are Tx isn irled by the Act or by the Court exercising its powers under Contre the Act. One condition has been laid down by the legislature in or N.S.W. ngard to the preference to unionists, that it may be ordered as en persons offering their labour at the same time. I am not of any principle upon which it can be held that that pro- jsion authorizes the Court of Arbitration to give any direction io employers that they shall give notice to one set of persons or auther before they proceed to exercise their common law right 'ofgaging any person they see fit. Except so far as they are 'epowvered to do so by the provisions of the Act, the Court can- control the common law rights of the subject. 'That propos- nis supported by the decision in the case of Rossi v. Edin- gi Corporation (1). In that ease power was given by the ate in question to magistrates to make by-laws. The Edin- gh Corporation Act provided that persons selling ice-cream ithout a licenee from the magistrates "who are hereby apowered to grant the same" for the house or premises in ith it was sold should be liable toa penalty. 'The magis- thought that that power could not be satisfactorily exer- fel without embodying in the licence certain restrictions upon thesile of other articles. It was contended that the power to do Was a necessary incident of the power to grant the licence. Dathat point Lord Hulsbaury L.C. said (2): "I ean only look at le Statute itself and construe it, and when I eonstrue the Waite I find there is in the Statute a plain prohibition with ttocertain things. 'The magistrates, of course, are not only Piwered but bound to give effect to legislation which has been j but when it is argued that because they are given the wer to restrict, within certain hours, the sale of ice-creams

SypNEY AND 'SvrURBS 'Tue Masrer Carters Assocrariox oF N.

therefore they have implied power to do all that might dag able or expedient with reference to the times and cireumsta

under which ice-ereams shall be sold, it seems to me the ar entirely fails, What is sought to be done, whether dinaly by-laws, or indirectly by the language of the licence that

restraint of a common right which all His Majesty's sult haye - the right to open their shops and to sell what they pl subject to legislative restriction - and, if there is no legit restriction which is appropriate to the particular thingin it seems to me it would be a very serious inroad upon th liberty of the subject if it could be supposed that a mere si

and applied to things and circumstances other than that y the legislature has contemplated." Lord Davey said (1); « Lords, it is said that this

say that you can do that. I am of opinion that you cannotuni the guise of giving better effect to the provisions of a St extend the Statute to the prohibition or the restraint of which are not included in the Statute." And Lord Ri said (2): "I ean find no warrant in the Statute for forcing | dealer to close his premises at the hours during which hei forbidden to sell ice-cream, and I know of no prineiple upon whit the magistrates can be held entitled to eke out what they mij consider a weak prohibition by imposing an additional one" the same way I am unable to find any authority, and I knows no principle, upon which the Court of Arbitration can be hal entitled to eke out what it may consider a weak direetion giving an additional one. On the ground therefore that there no power given by the Arbitration Act to direct any such nol to be given to anyone unless the employer thinks fit to give think that the direction contained in the award is not within power of the Arbitration Court. It was urged that there was nothing in the direction to pres! the employer giving notice to other persons as well as to mem™=* of the appellant union, That is no doubt true. But that iseom (2) (1905) A.C, 21, at p. 29. (2) (1905) A.C. 21, at pe a

ly as between the employer and the members H: ©. oF A.

'the union. But, as between the employer and all persons who 19°, desirous of being employed, the latter are entitled to the same Tux Taouty, sideration, whereas if the notice is directed to be given to one ,P* reat fhssonly, that might be unfair to the other class who are equally Ustes or . cig a eats 2 SYDNEY AND entitled or not entitled to it. There isa great deal of force in the - Suncxns ment that the condition of equality of opportunity implied in Ty, sven the words "other things being equal," would be violated if effect cee 'yore given to the direction in question, or NSW, However, I do not rest my argument on that ground, but on Grimm o3. the general ground that there is no implied power conferred by Statute anthorizing the Court to eke out the power conferred ty section 26 by giving the additional direction that notice of the ibour vequired be given by the employer to the secretary of

Barrox J. The Arbitration Act provides in sec. 36: [His Honor read the material part of the section, as already set out, aul proceeded :] We know that there arose a dispute between the union and association, who are parties to this appeal, and 'that for the settlement of that dispute the parties had recourse to the Arbitration Court. That Court, after hearing the dispute, drew up an award, in which there oceurs the following clause. {Bis Honor read clause 27 of the award, which has been already set out, and continued: ] It will be seen that, the prefatory con- ditions being performed by the applicant union, the right of the njonist to preference was not to be merely such as is described 'inthe section, but there was to be this added provision that whenever reasonably practicable, having regard to existing con- ditions, there was to be a notification to the secretary of the lutour required. The question is whether the imposition of that iitional direction is or is not outside the jurisdiction of the Arbitration Court.

'The jurisdiction of the Court is defined in a large measure by e.26, which may be read in connection with sec. 36. I must sy that I cannot find in either of those sections any words vatranting the imposition of this additional condition, nor, looking through the Act, can I find anything relating to the

'Tux Trowty, DRayMeS AND CARTERS Usiox oF Sypxxv asp 'Scperss

precise subject of this condition, which by express terms, or jy

sit. Only, as it seems to me, by establishiy that the direction in the award was tantamount to the diay which sec. 36 empowered the Court to give, can the claim union establish that the direction complained of is within the Court's jurisdiction. Is it then the same thing to direct tha between members of the union and other persons offering labour at the same time, such members should be employed js preference to such other persons, other things being equal, and) direct that as between members of the appellant union, yho secretary shall be notified of the labour required, and other persons outside the union, members of the union shall } employed in preference to such other persons, other things bei equal? It seems to me impossible to contend that these tmo things are one and the same thing. To argue that would be ts contend that the giving of what might be summarized as "before: hand notice" to the secretary of the union, while no such n is required to be given to the other applicants for employment gives no undue advantage to members of the union, I think would be perfectly idle to make such a contention, If this wer not in fact an advantage to members of the union, they woul not be here contesting this appeal. Not only is importanee to

time," but also to the words "other things being equal." offer of labour at the same time, as between unionists non-unionists entitles unionis'

at the time when the labour is offered ? that cannot be contended. Those member of the union

advantage, for they can not only present themselves at the s time and in greater numbers than the non-unionists, because of impossibility of notifying an equal number of non-unionists, they will have the opportunity of presenting themselves the non-unionists. It seems to me that an analogous P would be that, supposing there were two horses starting Im a78

preference to unionists might be considered as a handienp in sur of one of them. If the conditions provided for the owner

horse so that he could not win the race, then that would be tanta- point to the condition which it is sought to add to the direction illoved by sec. 36. 'The condition, it must be recollected, deals

fesame time, Clearly those who apply first are not included. inse who apply first have an advantage over those who apply tr, because they are the subjects of an earlier choiee. 'That is 'a position whieh, if it were legalised by giving the Court power to

of such great importance that one could not expect the Court be endowed with it except by express words in the Act. But ze isno such provision. Whether this matter is concluded as etween those who apply at the same time, or between those who yply at different times, the unionist having the earliest oppor- y of applying, in the one ease it seems to me not within absection (b) of sec. 3 no provision in the Act which would authorize or warrant it.

isshown clearly by the passages which His Honor the Chief Tustiee has quoted. I agree, therefore, that the appeal should be dismissed with costs.

OCoxxor J. The question for our decision depends entirely ton what seem to me the very plain words of see. 36 (b) of the ivitration Act. It is the duty of the Court to endeavour to eertain the intention of the legislature as expressed in that uetment. It is claimed by the appellants that the inten- im of the legislature as expressed by the enactment was to athorize the Arbitration Court to direct that notice should be fen to the union. On the other hand it is contended that meaning of the words used by the legislature is not open to

tht interpretation. Now, with reference to the intention of the

ith the preference that shall be attached to those who apply at yy yf

rickey of one horse dealing in a certain way with the other tus aaouy,

legislature, there is a passage in a judgment of Lord Wap

appellants. Lord Watson said: "Intention of the legislature is common but very slippery phrase, which, popularly under may signify anything from intention embodied in positive en

it. Ina Court of ae or equity, what the legislature ite be done or not to be done can only be legitimately as

'The only guide, therefore, as to"what the legislature inte the words it has used; the first of all rules of interpretation is find out the meaning of the legislature from what it has si

is offering itself for employment. For the purposes of thi all labour is divided into union and non-union labour, and the section in question provides that when the labour is offered,

belonged to the employer, shall no longer belong to him, shall be bound, other things being equal, to give preference union labour. Now, it is said that if the interpretation content for by the union is not placed upon the Act, this provision w entirely ineffective, because the master or employer may, thinks fit, give private notification to non-unionists, and ther ensure that their offer shall be made before that of the u labour. It appears to me that that statement of the conseque of such an interpretation is not correct.

It is clear that this law applies to all classes of labour not to that required here, in which it might be possible by pm arrangements to neutralize this section in some cases. Tt app

which large bodies of men are and must be H. ©. or A.

tantly seeking employment. It applies to the cases of wharf 5 - oF tvuers, shearers, and other kinds of employés, and the Court nw. twouy,

me that the legislature contemplated a condition of , Dssrwes

things in which there would be competition for labour amongst

vninists themselves, as well as with those who do not belong to "Scutnis sions. It contemplated further, that when work was sought by yp stasron umber of persons, unionists and non: -unionists, offering their ,CANRIENS Iaioar at the same time, the employer might be directed to give or N.S.W.

rence to union labour. It has been naturally asked by the gvomora

= have used, any intention to confer upon the Court this to direct a notice to be given to the union? It is said this is one of those cases in which the right given cannot wexercised adequately and effectively without this further right {oenforee a notification to the union. Now one must be very areful, in extending the meaning of the words actually used, se that the Court is not departing from the function of the Juige in interpreting the law and enacting something which the legislature, for whatever reason, has omitted to enact. It appears "tome that if you seek to go beyond that stage of the employment fowhich I have already referred, namely, when the employé is affring his labour, you restrict. the liberty of the employer to a wry serious degree, and not only that, but as was pointed out by ny leaned brother, Mr. Justice Barton, you are giving an undue preference to the unionist in offering his labour.

The principle upon which the appellant union endeavours to upport its contention is dealt with in Broom's Legal Mawims, viz., "Quando lex aliquid alicwi concedit, concedere videtur et illud 'sinequo res ipsa esse non potest." Its full and true import is set out inthe judgment in the case of Fenton v. Hampton (1) as follows : "Whenever anything is authorized, and especially if,as matter of ty, required to be done by law, and it is found impossible to do that thing unless something else not authorized in express terms tealso done, then that something else will be supplied by neces- yintendment. But, if, when the maxim comes to be applied iversely to the liberties or interests of others, it be found that

'Tae TRorLy, Duaymes an CARTERS Usios oF Sypszy aND SURURES

no such impossibility exists, that the power may be | exercised without the doing that something else, or even oy step farther, that it is only in some particular insane opposed to its general operation, that the law fails in its inte unless the enforeing power be supplied, then, in any suth « the soundest rules of construction point to the exclusion of maxim, and regard the absence of the power which it yoilp supply by implication as a casus omvissus." Every word of that applies here. 'There are many instag under this Act in which the intention of the legislature eam) carried out, without any direction as to notification of the uniop, though there may be cases in which it eannot. But, whether fy or many, it appears that the legislature has not thought fitt enact that there shall be a preference to unionists, in giving th a greater opportunity of offering their labour than is given too persons not members of the union when seeking employment 'Under these cireumstances, I think it is impossible to hold th there is implied here any such power as that which it is so to read into the terms of the section, and if we look at the plai words as they stand, clearly no such power is given, I therefore am of opinion that the decision of the majority ut the Supreme Court was right, and that the appeal should te dismissed. :

Solicitors, for the appellant union, Brown & Beeby.

Solicitors, for the respondent association, Mackenzie & kenzie.