Victorian Chamber of Manufactures v Commonwealth (Women's Employment Regulations) [1943] HCA 21

Victorian Chamber of Manufactures v Commonwealth (Women's Employment Regulations) [1943] HCA 21 - HCA 1943 case summary — Zoe

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In their statement of claim the plaintiffs alleged : - "1. The plaintiff the Victorian Chamber of Manufactures is a company incorporated in Victoria as a company limited by guarantee and registered as an organization of employers under the provisions of the Commonwealth Conciliation and Arbitration Act 1904-1934, the members of which include upwards of 2,800 persons firms and/or companies engaged in manufacturing in the State of Victoria many of whom at present employ or desire or propose in the future to employ women in manufacturing work. Of such members, upwards of 1,000 are engaged in one or more of the industries or branches of industry referred to in clause 1 of an award of the Commonwealth Court of Conciliation and Arbitration made on 5th December 1941 in the matter of a dispute between The Amalgamated Engineering Union and others and Metal Trades Employers' Association and others and known as the Metal Trades Award and upward of 800 are bound by the said Metal Trades Award and many of the members engaged as aforesaid at present employ and others desire or propose in the future to employ women in manufacturing work of the kind specified in " a decision of the Women's Employment Board of 11th December 1942 and/or a decision of the Board of 29th January 1943. "2. The plaintiff Metal Trades Employers' Association is an unincorporated association registered as an organization of employers under the provisions of the Commonwealth Conciliatton and Arbitra- tion Act 1904-1934, the members of which include upwards of 1,100 persons firms and/or companies bound by the said Metal Trades Award, many of whom at present employ and others desire or propose in the future to employ women in manufacturing work of the kind specified in the said decision of the Women's Employment Board of " 29th January 1943. "3. The remaining plaintiffs are companies incorporated in Victoria and/or in New South Wales and carrying on one or more of the industries or branches of industry referred to in clause 1 of the said Metal Trades Award all of whom employ women in manufacturing work of the kind referred to in paragraph 2 hereof."

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appoint a Women's Employment Board. The Board was appointed in June 1942, and applications were made to it for decisions in relation to the employment of women by several of the plaintiffs. On 23rd September 1942 the Board made a decision purporting to bind one of the plaintiffs and other named employers. On the same day the Senate disallowed the amending Regulations above mentioned. On 6th October 1942 the Royal assent was given to the Women's Employment Act 1942, which provided (by s. 3) that the provisions in the schedule to the Act (entitled Women's Employment Regula- tions and reproducing the previous Regulations) should have, and continue to have, and be deemed as on and from 23rd September 1942 to have had, the force of law. The Governor-General was given power (by s. 6) to make regulations for the repeal, alteration of, or addition to, the provisions in the schedule to the Act; it was pro- vided (by s. 5) that the National Security Act should, so far as applicable, apply to the provisions in the schedule and to regulations made under the Act, and (by s. 4) that " all decisions, variations and interpretations " of the pre-existing Board up to and including 23rd September 1942 should have full force and effect and that applica- tions to the Board which were pending on 22nd September 1942 might be dealt with by the new Board to be established in accordance with the schedule to the Act. This Board was constituted in October 1942. It made decisions affecting some of the plaintiffs in respect of applications which were pending on 22nd September 1942 and also in respect of fresh applications. On 22nd December 1942 the Governor-General made Regulations (Statutory Rules 1942 No. 548) amending the Regulations in the schedule to the Act; in particular (by reg. 4), they repealed reg. 6 in the schedule (which defined the conditions upon which applications should be made to the Board and the functions of the Board in relation thereto) and inserted in its stead a new reg. 6. Subsequently, other relevant decisions were made by the Board. On 16th March 1943 Statutory Rules 1942 No. 548 was disallowed by the Senate. On 25th March 1943 the Governor-General made the Women's Employment Regulations (No. 2) (Statutory Rules 1943 No. 75), which provided (by reg. 2) that the Women's Employment Regulations, as existing prior to the date on which Statutory Rules 1942 No. 548 came into operation, should have full force and effect, and (by reg. 3) that all decisions, variations and interpretations of the Women's Employment Board given or made between the commencement of the Women's Employment Act 1942 and the date of disallowance of Statutory Rules 1942 No. 548

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defence of the country, and is not occasioned by any circumstance arising out of the war. It may be said that in order to deal with conditions arising out of a great plenty of money circulating in the community and the great scarcity of consumer goods, it is necessary to control what is commonly called inflation, to peg wages, &c. : that could be connected with circumstances arising out of the war, but there is no such connection as regards general regulation of conditions of employment. Such regulation may be desirable, but that does not bring it within the defence power. The general pro- position that peace in industry is so important during war that the Commonwealth can do anything to obtain it is negatived by Victoria v. The Commonwealth (1). (2) The disallowance by the Senate of Statutory Rules 1942 No. 548 had the effect of depriving the Board of all jurisdiction for the future; that jurisdiction was not effectively restored by Statutory Rules 1943 No. 75, and Statutory Rules 1943 No. 92 is void. The disallowance of Statu- tory Rules 1942 No. 548 had the effect of repealing regs. 4 and 5 thereof, including the words repealing the scheduled regs. 6 and 7 respectively (Acts Interpretation Act, s. 48 (6) - See also s. 50) ; ~ but No. 548 is an "instrument " within the meaning of s. 46 (a) of the Acts Interpretation Act, and therefore that Act applies to the instrument as if it were an Act ; accordingly, s. 7 of the Act applies, with the result that the scheduled regs. 6 and 7 were not revived by the disallowance, and, as these were the vital provisions relating to the Board's jurisdiction, it had no jurisdiction after the disallow- ance. Statutory Rules 1943 No. 75 is void. As to reg. 2 thereof, in attempting to restore (in particular) regs. 6 and 7 of the scheduled regulations it contravenes s. 49 (1) of the Acts Interpretation Act, which prohibits the making of regulations " the same in substance " as the disallowed Statutory Rules 1942 No. 548 within six months after the disallowance. Regs. 6 and 7 as inserted by No. 548 and regs. 6 and 7 of the scheduled Regulations do not differ in substance: there are differences of expression and also some difference in details, but the tenor generally is the same. Similarly, Statutory Rules 1943 No. 92 is void: its purport is substantially to restore Statutory Rules 1942 No. 548; it altogether disregards s. 49 (1) of the Acts Interpretation Act. (3) None of the decisions of the Board was tabled in Parliament, and all the decisions (other than those saved by the Women's Employment Act, if it is valid) are therefore void. This results from the combined operation of s. 5 of the Women's Employment Act, s. 5 (4) of the

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Ham K.C. (1) The Women's Employment Act, including the Regulations in the schedule, is valid under the defence power. The object of the Act is to encourage women to take the places previously held by men because the men are required for war purposes and essential industries could not be carried on without them unless women took their places. This cannot be confined to industries having an immediate relation to the war. It is essential to the efficiency of the community for the purposes of the war that its industries generally be carried on. The Act contemplates that the Board will provide conditions which will make it possible for women to carry on the work effectively. Whether it has chosen the best means of achieving that result is not to the point. (2) Statutory Bules 1942 No. 548 did not repeal the scheduled regs. 6 and 7, but merely amended them. The expression of the amendment in each case as a repeal and substitution did not make it any the less an amendment; that is merely the machinery of amendment. On the disallowance of No. 548, the amendments ceased to have effect and the scheduled regulations reverted to their original form. The schedule cannot be destroyed by regulations under the power to repeal. Regulations made under the Act must be necessary or convenient for carrying out the purposes of the Act. In any event, the schedule was validly revived by Statutory Rules 1943 No. 75, which does not contravene s. 49 of the Acts Interpretation Act. The contention that No. 75 is substantially the same as No. 548 is unsound. Comparing what appears on the face of the two sets of regulations, nothing could be more different. Hven if - as contended for the plaintifis - the comparison is to be, not between the words of the two Regulations, but between the results of the operation of each of them, they are still not the same in substance - they are as unlike as they could possibly be. No. 548 is merely a series of amendments ; it does not contain any scheme which could have an independent operation, whereas No. 75 reinstates something which is assumed to have been repealed. To be " the same in substance " No. 75 must not differ at all from No. 548 in subject matter - it must produce exactly the same legal result. If the comparison is to be between the scheduled Regulations which No. 75 revives and the

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without prejudice to anything contained in the Regulations its functions shall be to fix the remuneration, hours and conditions of employment of certain women employed in industry during the emergency created by the present war. Reg. 6 provides that where an employer has, since 2nd March 1942, employed, is employing, or proposes to employ, women on any of three classes of work he shall forthwith make an application to the Board for a decision in accord- ance with the Regulations. These classes of work are: (a) work which is usually performed by men ; (6) work which theretofore had been performed by men in the employer's establishment ; and (c) work which had not been previously done in Australia. Reg. 6 further provides that upon such application by the employer, the Board shall decide whether the work specified in the application falls within these classes, and if the work is of that description, whether women may be employed or continue to be employed on it. Reg. 6 also requires the Board to fix the hours, and rate of payment for women employed on such work, if it permits women to be employed on it. In the exercise of these functions reg. 6 authorizes the Board to decide whether the employment should be in the first place on probation and, if on probation, the rate of payment for the proba- tionary period, but the Board may not fix a rate for adults (whether on probation or otherwise) less than sixty per cent of the rate of payment made to adult men employed on work of a substantially similar nature. The Board also has power under reg. 6 to decide what conditions should be observed by the employer for the safety, health, and welfare of the women permitted by the Board to be employed on the work specified in the employer's application. Reg. 7 empowers any woman employed on any work in the above- mentioned classes or any organization of employees to which a woman thus employed belongs to apply to the Board to determine the rate of payment, hours of employment of women employed on work within the above-mentioned classes, and the conditions to be observed in respect of the employment of women thereon as if such application were made under reg. 6. If the employer's application under reg. 6 relates to the employment of women on any such work in Western Australia, reg. 58 authorizes the Board to refer the applica- tion to an industrial authority in that State which for the purposes of the reference is by this regulation vested with the powers of the Women's Employment Board. Reg. 10 gives paramountcy to the Board's decision over a determination of any other authority dealing with any matter covered by such decision. Reg. 14 provides that notwithstanding any law of a State, work may be performed by women in any factory engaged in making munitions of war on such

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The fifth question is whether s. 5 (4) of the National Security Act 1939-1940 applies, as the plaintiffs contend, to the decisions of the Board. If this sub-section applies to these decisions it would be necessary for the validity of each decision that it should be laid before each House of Parliament pursuant to s. 48 (1) (c) of the Acts Interpretation Act 1901-1941. The contention is that s. 5 of the Women's Employment Act 1942 makes s. 5 (4) of the National Security Act 1939-1940 apply to the decisions of the Board. Section 5 is in these terms : - '"5. The provisions of the National Security Act 1939-1940 shall, so far as applicable, apply to and in relation to the provisions, in the Schedule to this Act, relating to the employ- ment of women, and to regulations made under this Act, in like manner as if they were regulations made under the first-mentioned Act." This section does not in terms apply to the decisions given under the provisions in the schedule to the Women's Employment Act or to the regulations made under that Act. Section 5 (4) of the National Security Act 1939-1940 applies to orders, rules and by-laws of the nature described in this sub-section. Such orders, tules and by-laws are exercises of the powers conferred by s. 5 (3) of the National Security Act. This sub-section provides that regula- tions made under the National Security Act may confer on persons or classes of persons power to make orders, rules and by-laws. Section 5 (4) is one part of a code in that Act applying to certain orders, rules and by-laws depending on s. 5 (3). Sub-sections 5 and 6 of s. 5 of the National Security Act are other parts of the same code and these sub-sections apply to all orders, rules and by-laws depend- ing ons. 5 (3). The decisions of the Board, however, do not depend on any power contained in s. 5 (3) of the National Security Act 1939-1940 which is brought into play by reason of the operation of s. 5 of the Women's Hmployment Act. The decisions of the Board depend entirely upon powers conferred by the Women's Employment Act and the regulations made pursuant to s. 6 of this Act. Section 5 (4) of the National Security Act 1939-1940 would be applicable, if at all, by force of s. 5 of the Women's Employment Act only as a con- sequence of the application of s. 5 (3) of the National Security Act, if indeed this sub-section is brought into play by s. 5. But if s. 5 (4) of the National Security Act were made applicable by s. 5 of the Women's Employment Act, s. 5 (4) would apply only to such decisions of the Women's Employment Board as depended on powers which the Board could exercise by virtue of s. 5 (3). There are no such decisions of the Board. All its decisions are exercises

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The source of the expression " of a legislative and not of an execu- tive character" in s. 5 (4) of the National Security Act has been ascribed in argument to the reasons for judgment of Isaacs J., as he then was, in Australian Boot Trade Employees Federation v. Whybrow & Co. (1). The appositeness of the observations there made to a decision of the Women's Employment Board is lessened by the dis- tinctions existing between such a decision and the industrial award whose juridical nature Isaacs J. was describing. It seems more prob- able that the source of the expression is to be found in Statutory Rules 1894 No. 734 containing regulations made by the Treasury with the concurrence of the Lord Chancellor and the Speaker of the House of Commons in pursuance of the Rules Publication Act 1893. The first of these regulations provides that every exercise of a statutory power by a rule-making authority which is of a legislative and not an executive character, shall be held to be a statutory rule within s. 3 of the Act and these Regulations. Reg. 2 provides that an exercise of a statutory power which is confirmed only by a rule- making authority shall not be held to be a statutory rule within s. 3 of the Act and these Regulations. Reg. 3 provides that except as mentioned in reg. 2 the volumes of Statutory Rules and Orders published by the Stationery Office in 1890, 1891, and 1892, shall form a practical guide for determining those exercises of statutory powers which should be treated as statutory rules within s. 3 of the Act and these Regulations. There is no such guidance for determining the question what orders, rules and by-laws come within s. 5 (4) of the National Security Act 1939-1940, The description in that sub-section supplies the only criterion for determining this question. Broadly, it is whether an order, rule or by-law is one whereby a law is enacted rather than an order, rule or by-law whereby the law enacted by the regulation under which the order, rule or by-law is made, is applied or enforced. The application of this criterion would involve the examination of every decision which is called in question. But it is unnecessary to make the examination for the reason that the decisions of the Board do not depend on s. 5 (3) of the National Security Act 1939-1940, and s. 5 (4) of this Act is there-

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It is conceivable to my mind that the regulation by Commonwealth legislation of the terms and conditions of employment of these "new women," as they were called during the argument, can aid in the prosecution of the war. The industries in which they may in some instances become employed may be industries which are not associated with the prosecution of the war, but it is employment in industry which in the case of the first two classes has become vacant because of the war and in the third class has been created by the war. The only express power to control industry conferred upon the Commonwealth Parliament by the Constitution is that contained in s. 51, placitum xxxv., 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. As Isaacs and Rich JJ. pointed out in their joint judgment in Waterside Workers' Federation of Australia v. J. W. Alecander Ltd. (2), this power is limited to legislation with respect to a particular method of dealing with such disputes ; that is to say, it presupposes a dispute, a hearing or investigation and a decision. Parliament " cannot form an a priori code, and say that shall be obeyed by disputants. é Tt can say . . . that an arbitrator shall have power to inquire into the circumstances of each particular dispute, and say what in his opinion ought to be the respective rights and liabilities with respect to the matters in dispute, and that when so declared those shall be their mutual rights and liabilities.' A power which can only be exercised in this way and which is confined to industrial disputes extending beyond the limits of any one State would not give the Commonwealth Parliament sufficient control over industry in time of war. The operation of the ambit of the defence power in time of war must therefore be enlarged to enable the Parliament to exercise more control over industry than it is able to exercise in time of peace. It is unnecessary in the present case to decide the difficult problem whether this operation should be enlarged to control all industry, because the Women's Employment Act seeks only to control a particular aspect of industry. A sudden transfer of males due to the war from certain industries and the substitution

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that each regulation forming part of a set of regulations which has been disallowed shall be contrasted with the regulation which replaces it. The meaning of a regulation must be ascertained in the context of the whole set of regulations of which it forms a part just as a section must be construed in the context of the whole Act. It requires the court to go behind the mere form of regulations and ascertain their real purpose and effect. If this is in substance the same the subse- quent regulation is void. It is impossible to define the meaning of the section with any precision. As the Privy Council said in another connection, each case must be determined as it arises, "for no general test applicable to all cases can safely be laid down": See Attorney-General for Alberta v. Attorney-General for Canada (1). Both regs. 6 divide the work to be done by females into the same three classes. In reg. 6 in the schedule no period is fixed for deter- mining whether the work was usually performed by males in a par- ticular establishment or whether the work was work which was not being performed in Australia. In reg. 6 in Statutory Rules 1942 No. 548 the period is fixed as a period commencing on 3rd September 1939, the date of the outbreak of war with Germany. But as the Act is intended to regulate the conditions of employment of women who have taken the place of men who have left their ordinary civil employment on account of the war this difference is one of form and the two provisions are in substance the same. Reg. 6 in the schedule refers to an employer who has since 2nd March 1942 employed or is employing or proposes to employ females in any of the three classes of work, whereas reg. 6 in Statutory Rules 1942 No. 548 only refers to an employer who is employing or proposes to employ females on such work. It therefore omits an employer who has employed females since 2nd March 1942 but is not employ- ing them at the date of the statutory rule and does not propose to employ them in the future. But this is also a matter of form and not of substance. In the first place, it is difficult to believe that there could be any applications in this class that had not been dis- posed of ; in the second place, the provision would infringe s. 48 (2) of the Acts Interpretation Act and would be void ; and, in the third place, the real substance and purpose of the Act is to compel an employer to make an application not in respect of past but in respect: of present and future employment, so that this difference is in any real sense mere surplusage. The conclusion is that reg. 6 in the schedule is the same in substance as reg. 6 in the Statutory Rules 1942

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could be regulated and the principles upon which their conditions, including their wages, were to be fixed. The question is whether the repeal of Statutory Rules 1942 No. 548 had such a wide effect that regulations made by the Executive with respect to these classes of work and fixing wages in accordance with these principles in cases dealt with by the Board would be the same in substance as previous decisions of the Board made under the repealed Regula- tions, so that the Executive could not deal with any case covered by a decision of the Board made between 6th October 1942 and 16th March 1943 without infringing the Acts Interpretation Act, s. 49; or whether it had a narrower effect, so that while to restore the authority of the Board to entertain fresh applications in accordance with these principles would be to enact legislation the same in sub- stance as that which had been repealed, it would not be the same in substance for the Executive to regulate such classes of work in accordance with such principles by direct legislation. If the section has the wider operation, then, for six months after the repeal, in the absence of a new statute or rescission of the motion by the Senate under s. 49, the Executive would not be able to regulate wages within the limits of sixty per cent to one hundred per cent of the wages of males for any of the establishments covered by these decisions of the Board, although there were decisions of the Board based on these limits regulating employment in respect of other establishments, and the Executive could have legislated either directly or by some other delegate for any other establishments. The narrower operation avoids such an anomalous result. There is a real difference in substance to my mind between the Executive itself regulating the conditions of employment of the " new women " and delegating the responsibility for doing so to a Board. If this is correct, then it is a matter of form and not of substance for the Executive itself to regulate these conditions where they have been dealt with by the Board by enacting a regulation that the decisions of the Board made between 6th October 1942 and 16th March 1943 shall have full force and effect instead of setting out the details of these decisions at length in the regulations. As I have said, each case under s. 49 must depend upon its own circumstances. Where an Act dealing with a particular subject matter gives power to make regulations on that subject matter it would be difficult to draft two sets of regulations within the power which would not be, in many respects, similar in substance. But s. 6 of the Women's Employment Act appears expressly to contemplate that the Regulations in the schedule constituting the Board might be repealed and the conditions

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an agreement and to observe it (see per Isaacs C.J. and Starke J. (1) ), the award is not a law but merely a factum and that it is the Act which brings the terms of the award into force as part of the law of the Commonwealth. Moreover, these statements are refer- able to the exercise of the powers conferred upon the Parliament by the Constitution, s. 51, placitum xxxv., which require that disputes shall be settled and that rules of conduct for that purpose shall be prescribed not by the Parliament but by arbitrators. In the case of the Women's Employment Act the Parliament was legislating under the defence power. Under that power it could have deter- mined in detail the industries in which it was suitable to employ the "new women " and the terms and conditions upon which they were to beemployed. It preferred to give general directions with respect to these matters, leaving it to the Board to complete the details. In J. W. Hampton Jr. & Co. v. United States (2), cited by my brother Dixon in Victorian Stevedoring and General Contracting Oo. Pty. Ltd. and Meakes v. Dignan (3), Taft C.J. said : - " The true distinction " (between legislative and executive power) "is, between the delega- tion of power to make the law, which necessarily involves a discretion as to what it shall be, and conferring an authority or discretion as to its execution, to be exercised under and in pursuance of the law. The first cannot be done; to the latter no valid objection can be made." The present case is, in my opinion, a case of the second class. The Regulations confer an authority on the Board to administer a law to be exercised under and in accordance with that law. Its duties are to find certain facts and, in the exercise of a limited discretion, to prescribe certain rules of conduct. Section 5 of the National Security Act delegates to the Executive the power to exercise the defence power conferred upon the Commonwealth Parliament by the Constitution. Sub-section 3 of that section authorizes the Executive by regulations to sub-delegate powers to make orders, rules or by-laws for any of the purposes for which regulations are authorized by the Act to be made. Sub-section 4 is directed to cases where the Executive sub-delegates some portion of the power to legislate upon the subject of defence conferred upon it by the section. If the regulation had delegated to the Board a general power to determine in what industries women could be employed and the conditions of their employment, decisions of the Board on these matters might have been of a legislative character.

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Judgment (368 paragraphs)