Waterside Workers' Federation of Australia Claimant; and Commonwealth Steamship Owners' Association [1920] HCA 20

Waterside Workers' Federation of Australia Claimant; and Commonwealth Steamship Owners' Association [1920] HCA 20 - HCA 1920 case summary — Zoe

[62]

The second question is whether the enactment contained in sec. 28 (2) of the Act is within the power of the Commonwealth Parlia- ment. Under see. 51 (xxxv.) of the Constitution the Parliament has power 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. This power may be para- phrased as a power to make laws with respect to the prevention or settlement of industrial disputes subject to two conditions, viz., that the prevention or settlement shall be effected by means of conciliation and arbitration, and that the disputes to be dealt with shall be confined to those which extend beyond the limits of one State. It is clear that this power does not authorize the Common- wealth Parliament to regulate conditions of employment by direct legislation, e.g., to prescribe by Act of Parliament the minimum rate of wage to be paid or the maximum number of hours to be worked. It is, I think, equally clear that the powei in question does authorize the Commonwealth Parliament to set up a tribunal with plenary and unrestricted power to prevent or settle two-State industrial disputes by conciliation and arbitration. It follows, in my opinion, that the Commonwealth Parliament has power to prescribe by legislation the manner in which, and the conditions on which, the tribunal so constituted shall carry out its functions and exercise the jurisdiction conferred upon it. The Commonwealth Parliament cannot settle a dispute or make an award by legislative enactment, but it has power, in my opinion, to enact that the tribunal which is set up for the purpose of settling industrial dis- putes shall, if it makes an award, comply with conditions prescribed by Parliament. This power to constitute a tribunal with plenary power to act according to its unfettered discretion, in my opinion, carries with it power to constitute a tribunal for the same purpose with circumscribed or limited powers. In effect, sec. 28 of the Act provides that if the tribunal constituted under the Act determines - to make an award it shall only do so upon the condition that such award shall continue in force during the period not exceeding five years to be specified in the award, and during such further period - as may elapse between the expiration of the period so specified and the making by that tribunal of a new award or of an order putting

[75]

can avail to enable the Court of Arbitration to make an award which Parliament has forbidden that Court to make. The argument of - Mr. Dizon for the claimant on this part of the case was, at first, founded principally on the decision of this Court in the Gas Employees" Case (1), though on a subsequent occasion he attacked that decision. Question 2 in that case was : - ' Am I justified in finding that there is an industrial dispute existing within the meaning of the Act on the subjects of the said claims? And if the said Court is not com- petent to entertain the said claims, am I still justified in finding as aforesaid?" To this question the Court answered "No." It was contended that this amounted to a decision that the Justice acting under sec, 2144 had no power to decide that a dispute existed with respect to a given matter unless the Arbitration Court had power to award in accordance with the claim on that matter, and that, con- versely, if a Justice decided under sec. 2144 that a dispute existed with respect to a given matter, his decision necessarily involved a decision that the Arbitration Court had power to award in accor- dance with the claim on that matter. Consequently, it was said, the decision under sec. 214 in the present case that a dispute existed as to the rate of wages claimed, the claim being for an increased rate from the date of making the claim, necessarily involved a decision that the Arbitration Court could make an award in accor- dance with such claim, and that, this matter having been decided under sec. 21aa, the decision was binding for all purposes in the matter in which it was made, at all events as between the parties to that matter. I suggested during the argument that, having regard to the form of the question " Am I justified," the decision in the Gas Employees' Case might be held to amount to no more than a decision that the Justice ought not to make the declaration in question on the ground that if he made it, it would be futile, the Arbitration Court being prevented by sec. 28 (1) from giving effect to the declaration. A careful perusal of the reasons given by the four Justices constituting the majority of the Court in that case shows that Barton J. and my brother Gavan Duffy arrived at their conclusions on the ground that the only dispute which came within , the provisions of the Act was a dispute which could be settled by (1) 27 C.LR., 72. ,

[98]

public tribunal ; nor is it truly res judicata - which properly applies to a decision in another suit, and not to a decision in a former stage of the same suit (Ram Kirpal Shukul v. Mussumat Rup Kuari (1). But as it would, in that event, have been a binding decision so far _ as this case is concerned, as binding as if it had been competently given by the Full Court, there could be no contrary decision given - in the present proceeding. As the Privy Council said in the case last cited : - " The binding force of' the former "judgment depends upon general principles of law. If it were not binding there would be no end to litigation." And this principle of ending litigation was again stated by Lord Macnaghten, in Badar Bee v. Habib Merican" Noordin (2), in these words : "It is not competent for the Court, in the case of the same question arising between the same parties, to review a previous decision not open to appeal." There having - been, however, no decision but one of the actual existence and nature of the dispute, the utmost that can be said is that the Arbitration Court had jurisdiction to entertain the claim, to deal with the - objections in law or in fact to the claim or to any particular part of _ it, and make such order in relation to the claim or any part of it as - is right, having regard to the requirements or authority of the law. As to what the law does in fact provide may be done with relation to the dispute in whole or in part, was left entirely open. On the present case stated, the question we have to consider is whether the law says that such part of the dispute as is covered by the provisions - of sec. 28 (2) can be made the subject of an award, and our decision - must be founded on our own independent interpretation of the law, and not upon the decision of the single Justice of 16th April 1919. ' 2. Construction. - Dealing, then, with the law, the first question is the proper construction of sec. 28 (2). In other words, what did Parliament mean when it said " After the expiration of the period - so specified, the award shall, unless the Court otherwise orders, continue in force until a new award has been made"? The expres- sion " expiration of the period so specified " has reference to the first sub-section of sec. 28, and it is necessary to understand that sub-section before we get the full meaning of sub-sec. 2. Putting

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arbitrator and of anything he says. Indeed, he may have limited the term of the award expressly to one year, and refused any further time because he considered it unjust that the obliga- tions and rights should continue for a day longer; or he may : have had before him a dispute limited to a specific period, as a - single season's shearing, or he may, of his own volition, have limited his award to that one season. Nevertheless, Parliament in sub-sec, 2 says that by virtue merely of its own will, and apart from any consideration of what may be just and fair in the circumstances, or how far it affects the decision or the balance arrived at by the arbitrator, the award shall, irrespective of the circumstances, continue to operate. And for how long nobody knows: not even does the arbitrator know, because, when (say in 1914) he makes his award for five years, he cannot then tell whether sub-sec. 2 is going, in fact, to extend it for a day, or a month, or for ten years. But sub-sec. 2 is entirely outside arbitration, and is purely " direct action" by Parliament. True, it contains the words "unless the Court otherwise orders,"' but that does not make the extension the affirm- ative act of the arbitrator. It makes the prevention or cessation of the extension his negative act. In other words, it is cessation by arbitration, but active obligation by Parliament alone. At any time after the expiry of the period during which his hands are tied by the award, the arbitrator is empowered to make an order declaring that the award shall not operate an instant longer. We say " after the expiry of the period," for this reason. The whole scheme of the Act, like that of the constitutional foundation, is, in our opinion, that no person shall have his industrial rights affected except after examination of the relevant circumstances of the dispute by an arbitrator, and his decision thereon. And when an award is once - arrived at for a definite specified period as its just limit of con- tinuance, the mere fixation of that limit means that it is, in the - opinion of the arbitrator, then to cease. But since Parliament has 3 required him, when making the award, to state definitely its farthest _ limit by specifying the terminal date, it is, in our view, impossible to construe the enactment as intending that if nothing more was said by him he was adding a further term, or that if, when saying "three years" as the furthest limit, he was expected to emphasize

[212]

In this case it is not contended that there was not a dispute brought before the Court in pursuance of the Act, or that that dispute was not in existence on Ist May 1919, the day after the specified period, or that the Court had not cognizance of it on Ist May and on 13th October 1919. The only part of the Act referred to, which it was contended prevented the Court having cognizance of the dispute so as to make an award was sub-sec. 2 of sec. 28, which, as I have pointed out, necessarily permits a cognizable dispute to arise after the specified period has expired; otherwise the new award it pro- vides for could never be made. The only limit the Act puts on any award the Court can make is that it shall only continue in foree - subject to any variation ordered by the Court - for a period specified in the award not exceeding five years from the date of the award. AJl the terms of the new award are left to the Commonwealth Court of Conciliation and Arbitration. The dispute that was settled by the prior award was only settled by the Court until the expiration of the specified period: the Arbitration Court could not legally settle it for a longer time. The old dispute having been settled and the term for which it was settled having expired, the Arbitration Court could not refuse to make an award in a new dispute on the ground that it was settled by the old award beyond the expiration of the specified period. Sec. 28 (2) recognizes that the new cogniz- able dispute can arise after the expiration of the specified period, and the continuance in force of the old award must, under the Constitution, be subject to any settlement of the dispute by concilia- tion and arbitration. I do not find anything in sec. 28 (2) to limit the power of the Court to make the new award referred to in that sub-section. I hold that sec. 28 (2) does not prevent the Court from making an award in this case at any time after the expiration of the specified period, and, for the reasons previously mentioned in this case, in respect to work done after Ist May 1919. The dispute as to

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Judgment (282 paragraphs)