Waterside Workers' Federation of Australia v Gilchrist, Watt and Sanderson Limited [1924] HCA 61

Metzourne, Industrial Arbitration - Commonwealth Court of Conciliation and Arbitration -

May 13-15. Jurisdiction - Award - Validity - Preference - Preference to some members of aoe organization - Returned soldiers and sailors - Variation between claim and award ire - Employer - Agent supplying labour - Interpretation of award - Commonwealth ile Conciliation and Arbitration Act 1904-1920 (No. 13 of 1904 - No. 31 of 1920), Knox 0.3. secs. 4, 28, 38 (0), 388, 40, 814 - Registration of Firms Act 1902 (N.S.W.) (No. Geoeraare 100), sec. 4 - Returned Soldiers and Sailors Employment Act 1919 (N.S.W.) Rich and Starke JJ. (Wo. 38), sec. 3.

Held, by Knox ©.3., Gavan Duffy and Starke JJ. (Isaacs and Rich JJ. dissenting), that the High Court has jurisdiction under sec. 75 (v.) of the Constitution to issue prohibition to the President of the Commonwealth Court

H.C. or A. of Conciliation and Arbitration where an award has been made by him without WATERSIDE Workers' FEDERATION

Per Isaacs and Rich JJ.: Even if the prohibition otherwise lay, it should aysraarza

be refused in this case because (1) parties necessarily affected were absent ; and (2) the award de facto was now operating, not by order of the Court of

R. y. Commonwealth Court of Conciliation and Arbitration; Ex parte Broken Hill Pty. Co., (1909) 8 C.L.R. 419; R. v. Commonwealth Court of Conciliation and Arbitration; Ex parte Whybrow & Oo., (1910) 11 C.L.R. 1; Tramways Case (No. 1}, (1914) 18 C.L.R. 54; Builders' Labourers' Case, (1914) 18 C.L.R. 224 ; Holyman's Case, (1914) 18 C.L.R. 273; Tramways Case [No. 2], (1914) 19 C.L.R. 43 ; Waterside Workers' Federation of Australia v. J. W. Alexander Lid., (1918) 25 0.L.R. 434; R.v. Hibble; Ex parte Broken Hill Pty. Co. (No. 1}, (1920) 28 C.L.R. 456 ; R. v. Hibble; Bx parte Broken Hill Ply. Co. (No. 2], (1921) 29 C.L.R. 290, followed.

See. 38 (0) of the Commonwealth Conciliation and Arbitration Act 1904-1921 does not confer on the Commonwealth Court of Conciliation and Arbitration authority to give an effective judicial interpretation of its awards.

A dispute was brought before the Commonwealth Court of Conciliation and Arbitration in which an organization of employees claimed against a number of employers that members of the organization should have preference over non-members.

Held, by Isaacs, Rich and Starke JJ. (Knox C.5. and Gavan Duffy J. dissenting), that upon that claim an award might properly be made giving preference to returned soldiers and sailors who were members of the organization over all other persons (including other members of the organization), subject to the provision of sec. 81A of the Commonwealth Conciliation and Arbitration Act 1904-1921 that nothing in any award should operate to prevent the employment of retuned soldiers and sailors, and prohibiting discrimination in favour of any person whatever against returned soldiers and sailors who were members of the organization subject to the same provision of sec. 81a.

An association called the Shipping Labour Bureau was registered under the Registration of Firms Act 1902 (N.S.W.) as a firm, its members comprising certain shipowners who were bound by an award of the Commonwealth Court of Conciliation and Arbitration. The Bureau engaged wharf labourers, some called permanent hands, at a weekly wage, and others, called casuals, who were paid at an hourly rate, If a member of the Bureau required wharf labourers to work on his ship, he notified the Bureau, which supplied the number of men

Wart & Conciliation and Arbitration, the term fixed by that tribunal having expired, Sanprrsox Lrp.

WATERSIDE Workers' FEDERATION or AUSTRALIA v Gutcurist, Warr & SANDERSON Lrp.

required, from the permanent hands first, and, if there were not sufficient of them, then from the casuals, The member did not pay the men so supplied for their services, but paid the Bureau an agreed amount, nor did he exercise the power of dismissing the men for misconduct, &c., but complained in such cases to the Bureau. The control and direction of the men in loading and unloading a member's ship was in the hands of the member, and the men were bound in the course of their work to obey the orders of the member.

Held, by Isaacs, Rich and Starke JJ., that a member of the Bureau was, in relation to the men supplied by the Bureau to work on his ship, their employer for the purposes of the award, which prescribed that when requiring wharf labourers' work to be done the employers bound by the award should give a certain preference of employment.

Morton for injunction and order nisi for prohibition or certiorari. On or about 21st December 1922 a demand was made by the Waterside Workers' Federation of Australia on a number of companies and others who ordinarily employed wharf labourers, including Gilchrist, Watt and Sanderson Ltd., that (so far as is material) "members of the Federation shall have preference of employment over non-members." The employers did not accede to the demand. On 12th March 1923 the President of the Commonwealth Court of Conciliation and Arbitration summoned a compulsory conference of the parties, and, no agreement being arrived at, the President referred to the Court the dispute, which he found existed, as to the above-mentioned demand. On 24th December 1923 the President made an award which, so far as is material, was as follows

"1. (a) The respondents . . Shall - subject to the provisions of sec. 814 (1) of the Commonwealth Conciliation and Arbitration Act, which prevents this Court from making any award or order which shall operate to prevent the employment of returned soldiers or sailors - give preference of employment over all persons but returned soldiers and sailors - other things being equal - to returned soldiers and sailors who are members of the Waterside Workers' Federation of Australia, when requiring wharf labourers' work to be done in Sydney, subject to the following conditions: (b) The preference of employment referred to shall be - Over all other employees except returned soldiers and /or sailors as no order can legally be made by this Court authorizing discrimination by the respondent against any returned soldier or sailor whether a member of the

Waterside Workers' Federation or not. (c) The employment of men at weekly rates of wages, who are not returned soldiers or sailors, shall not be deemed a breach of this award as to preference if the

respondents first offer weekly employment to returned soldiers and pyprrarion

sailors at the rates they are willing to pay to employees engaged at weekly rates instead of at casual rates."

"9. (a) The respondents . . . shall not, when requiring wharf labourers' work to be done in Sydney, discriminate - other things being equal - against members of the Waterside Workers' Federation - not returned soldiers or sailors - except in favour of returned soldiers and/or sailors. (b) The employment of men at weekly rates of wages, not members of the Waterside Workers' Federation, shall not be deemed discrimination under this award against members of the Waterside Workers' Federation, if they give members of the Federation the same opportunity to accept weekly rates at the same rates they offer to others not members of the Federation."

«Loyalist ' shall mean for the purposes of this award - a person who actually worked on the wharfs in and about Sydney during the wharf labourers' strike period mentioned in the 1918 award of this Court, and who has worked as a wharf labourer in and about Sydney during the last six months preceding Ist December 1923."

"8. This award is made on the assumption that the members of the Waterside Workers' Federation will work for the respondents under conditions of awards made by this Court from time to time, or under agreements for weekly wages, and will not unduly interfere with, or make things unpleasant for, the registered loyalists who may be employed with them from time to time during the term of the award, and will favourably consider applications of competent and eligible loyalists to become members of the Federation. If the union acts contrary to the assumption mentioned, the Court can at any time after 30th June 1924 order that the award shall no longer continue in force."

On 13th February 1924 the Federation applied to the Commonwealth Court of Conciliation and Arbitration for an interpretation of the award, contending that under it (1) returned soldiers and sailors who were members of the Federation were

H.C. or A. entitled to first preference of all employment over all other persons,

des other things being equal; (2) non-members of the Federation who Warerstpe were returned soldiers and sailors were entitled to second preference ieesaai ie ofall employment; and (3) after preference had been given to

Austaarsa Teturned soldiers and sailors who were not members of the Federation,

Gey other members of the Federation were entitled to third preference

es Ce of all employment, other things being equal. On 28th Hebuiary

Lr. 1924 the President delivered a judgment in the course of which he

yee said: "The award must be interpreted quite apart from any

question whether there have been breaches of it, and in the same

way as any other Court would do, namely, not to consider what

was intended or what the Court could do, but what the Court did

by the award." He interpreted clause 1 of the award to mean

"that subject to the provisions of sec. 814 of the Commonwealth

Conciliation and Arbitration Act 1904-1920, returned soldiers and

sailors members of the Waterside Workers' Federation of Australia

are entitled to preference of employment - other things being equal -

over all persons not returned soldiers or sailors as defined by the

award." As to clause 1 he also said: "I interpret the clause to

mean that the preference granted was to returned soldiers and

sailors generally, so far as the Court could grant it, for all employment

as wharf labourers (if the members of the union would accept the

terms offered by the respondents)." As to the second claim of the

Federation he said : - '' The award is interpreted to mean that the

members of the Waterside Workers' Federation who are returned

soldiers or sailors are not entitled to preference over other returned

soldiers or sailors. The Court has no power to give such preference,

and the Court said so in the award. All returned soldiers and

sailors by law, and as far as the award can affect it, are equally

entitled to preference." As to the third claim of the Federation

he said: "' The award is interpreted to mean that the other members

of the Federation not returned soldiers or sailors are not entitled

to preference over all other persons except returned soldiers or

sailors; for the award only prohibits discrimination against them,

other things being equal, except in favour of returned soldiers and sailors."

The Federation now applied, by motion to the High Court, H.C. or A. pursuant to sec. 48 of the Commonwealth Conciliation and Arbitration - '9°* Act 1904-1921, for an order in the nature of an injunction to Warrrsipe restrain Gilchrist, Watt and Sanderson Ltd. from committing eee breaches of the award. pean

Other material facts appear in the judgments hereunder. aniaree

Warr & Ss. A. Thompson (with him Nicholas), for the applicant. The ~"Yas°°™

interpretation given by the President of the award under sec. 38 (0)

of the Commonwealth Conciliation and Arbitration Act should be

taken into consideration as part of the award. Even if the

interpretation is left out of consideration, there has been a breach

of the award. The respondent is, for the purposes of the award,

the employer of the persons supplied by the Shipping Labour

Bureau to work on its ships. The Company requires wharf labourers'

work to be done and, in obtaining men to do it, is bound by the

award. The Bureau is merely an agency for obtaining labourers

created by a number of the respondents to the award.

Bavin, A.-G. for N.S.W. (with him Ferguson), for the respondent. The remedy of an order in the nature of an injunction given by sec. 48 of the Commonwealth Conciliation and Arbitration Act is not intended to be used where another remedy is open (Whittaker Bros. y. Australian Timber Workers' Union (1) ), and there was another temedy open here, namely, a prosecution for a breach of the award. So far as employees who are employed at weekly wages by the Bureau are concerned, they are employees of the Bureau and not of the owner of the ship on which they are employed (Marrow v. Flimby and Broughton Moor Coal and Fire Brick Oo. (2); Fitzpatrick v. Evans & Co. (3) ). As to those employees the award means that whenever new contracts of employment are made by the Bureau preference must be given to returned soldiers and sailors; it does not mean that those who are permanently employed at weekly wages are to be dismissed. The claim made by the Federation had no reference to permanent employees but only to casual employees, and the

(1) (1922) 31 C.L.R. 564. (2) (1898) 2 Q.B. 588. (3) (1901) 1 Q.B. 756.

H.C. or A. award could only apply to the latter. There is no evidence that 1924,

as to casual employees there has been a breach of the award. The interpretation of the award given by the President of the Commonwealth Court of Conciliation and Arbitration is ultra vires.

[{Kyox ©.J. The Court does not think that the interpretation should be looked at.]

An injunction is a matter of discretion, and should not be granted here because the award is invalid. The award, both as to preference and as to discrimination, is wltra vires. The claim was merely for preference of members of the Federation over non-members, and does not authorize an award of preference of returned soldiers and sailors over others who are not returned soldiers or sailors or of some members of the Federation over other members. The only power to grant preference is in sec. 40, and that is a power to give preference to a class, namely, members of an organization, over those who are not within that class. The award is invalid also because the only claim was for preference to members of the Federation and there was never any dispute as to preference to returned soldiers and sailors or as to discrimination (see R. v. Commonwealth Court of Conciliation and Arbitration ; Ex parte Whybrow & Co. (1); R. v- Commonwealth Court of Conciliation and Arbitration; Ex parte Broken Hill Pty. Co. (2); Federated Engine-Drivers' and Firemen's Association of Australasia v. Broken Hill Pty. Co. (3)). Sec. 31 only applies to valid awards, and sec. 48 empowers this Court to grant an order in the nature of an injunction only to compel compliance with a valid award.

S. A. Thompson, in reply. On an application under sec. 48, the Court should treat the award as valid ; and the only questions are whether there has been a breach of it, and whether the breach, if any, should be restrained. Persons in the general employment of the Bureau may, in particular cases, be in the employment of the owner of a ship on which they work (Jones v. Scullard (4) ).

(1) (1910) 11 C.L.R. 1, at p. 31. (3) (1913) 7 C.A.R. 132, at p. 147. (2) (1909) 8 C.L.R. 419. (4) (1898) 2 Q.B. 565, at p. 573.

On 2nd May 1924, after the arguments on the injunction motion 4. ©. or A.

were concluded, upon motion by Gilchrist, Watt and Sanderson =

Ltd., an order nisi was granted by Isaacs J. calling upon the Warrrsme

President of the Commonwealth Court of Conciliation and Arbitration oe and the Federation to show cause why a writ of prohibition should os J AUSTRALIA not issue, prohibiting further proceedings upon the award and the ae "i - re a , GILcHRIst, interpretation thereof, or in the alternative why a writ of certiorari Warr '& should not issue to remove the proceedings into the High Court. ee The grounds of the order nisi were substantially as follows : - Corer

(1) That there was not at any material time any industrial dispute between the Federation and the Company extending beyond the limits of any one State with reference to (a) the terms or conditions of employment of permanent wharf labourers by the Company; (b) the preferring of returned soldiers generally or returned soldiers members of the Federation or at all; (c) discrimination as against members of the Federation or as against returned soldiers members of the Federation or at all; (d) the doing of work upon wharves or ships by wharf labourers otherwise than in the legal relation of future employment.

(2) That the President had no power to make an award in respect of preference to returned soldiers and sailors or to returned soldiers and sailors members of the Federation or as to discrimination against members of the Federation.

(3) That at no material time was there a dispute or an inter-State dispute between the Federation and the Company as to the matters dealt with in the award.

(4) That the award was beyond the powers contained in the Commonwealth Conciliation and Arbitration Act and/or the Commonwealth of Australia Constitution Act, and was a nullity and of no effect and was not binding on the Company.

(5) That the Commonwealth Court of Conciliation and Arbitration and the President had no power under the Commonwealth of Australia Constitution Act or otherwise to make the interpretation, and such interpretation was a nullity and of no effect and was not binding on the Company.

The order nisi now came on for argument. VOL. XXXIV. 33

WATERSIDE 'Workers' FEDERATION or AUSTRALIA w GILCHRIST, Warr & SANDERSON Lro.

Bavin A.-G. for N.S.W. (with him Ferguson), for the prosecutor. There is no evidence of a dispute existing at any time as to any of the matters mentioned in the first ground of the order nisi, and the award is therefore invalid. The only claim being for preference of members of the Federation over non-members, there was no jurisdiction to award preference to returned soldiers and sailors. The claim was in reference only to the relations between employers and employees, and does not warrant an award as to the relation between those who require wharf labourers' work to be done and those who do it. The award should be read as applying only to labourers who were paid an hourly wage, and not to permanent employees; for under the rules of the Federation a member who took permanent employment ceased to be a member (see Waterside Workers' Federation v. Commonwealth Steamship Owners' Association (1) ). There was no dispute as to permanent employment, and the award, so far as it deals with permanent employment, is invalid. The award, so far as it gives preference to returned soldiers and sailors, is invalid as being in conflict with the provisions of the Returned Soldiers and Sailors Employment Act 1919 (N.S.W.), which directs preference to all returned soldiers and sailors, while the award purports to limit the preference to returned soldiers and sailors who are members of the Federation (Australian Boot Trade Employees' Federation v. Whybrow & Co. (2) ; Tramways Case [No. 2] (3); Federated Engine-Drivers' and Firemen's Association of Australasia v. Adelaide Chemical and Fertilizer Co. (4)). The interpretation of the award by the President should not be regarded, for it is not a judicial interpretation since the Arbitration Court cannot exercise the judicial power of the Commonwealth (Waterside Workers' Federation of Australia v. J.W. Alexander Ltd. (5) ), and it cannot be regarded as something in the nature of a variation, for it purports to be a judicial interpretation. While the award is still in operation this Court has power to issue prohibition to the Arbitration Court (R. v. Hibble; Ex parte Broken Hill Pty. Co. [No. 1] (6) ), although it would not

(1) (1914) 8 C.A.R. 53, at pp. 68,72. (4) (1920) 28 C.L.R. 1, at p. LL. (2) (1910) 10 C.L.R. 266. (5) (1918) 25 CLLR. 434. (3) (1914) 19 CLR. 43, at p. 81. (6) (1920) 28 C.L.R. 456.

lie if that Court were functus officio (In re Clifford and O'Sullivan (1) ). {Srarke J. referred to R. v. Electricity Commissioners (2).| Certiorari will lie as an exercise of original jurisdiction. The matter arises under the Constitution, and original jurisdiction is given by sec. 30 of the Judiciary Act. Certiorari is not open to the objection that the Arbitration Court is functus officio (see R. v. Woodhouse (3) ). The restriction in sec. 31 of the Commonwealth Conciliation and Arbitration Act upon the power of the High Court to issue certiorari to the Arbitration Court should be strictly construed (Jacobs v. Brett (4) ), and should not be applied where the statutory jurisdiction has been exceeded (see Short and Mellor's Crown Practice, 2nd ed., p. 42; R. v. Bradlaugh (5); Clancy v. Butchers' Shop Employees' Union (6); R. v. Arndel (7) ). Although the High Court's power as to certiorari is statutory, the same principles should be applied with regard to restrictions on that power as are applicable to similar restrictions on the powers of superior Courts existing at common law.

Russell Martin, for the Commonwealth Court of Conciliation and Arbitration. The President regards the Arbitration Court as being functus officio in regard to the award in question.

Owen Dizon K.C. (with him Robert Menzies), for the respondent Federation. The circumstances surrounding the making of the demand show that the dispute was an inter-State one. The award as to preference which was made is authorized by sec. 38B of the Commonwealth Conciliation and Arbitration Act, which provides that the Court is not restricted to the particular claim which is made. If the matters included in the award are reasonably incidental to the settlement of the dispute the award is within sec. 38B, and whether what is included is reasonably incidental does not depend on what the claim is. The fact that preference is given to those members of the Federation who are returned soldiers or sailors over members who are not returned soldiers or sailors does not (1) (1921) 2 A.C, 570. (5) (1877) 2 Q.B.D. 569.

(2) (1924) 1 K.B. 171, at p. 206. (6) (1904) 1 C.L.R. 181.

(3) (1906) 2 K.B. 501. (7) (1906) 3 C.L.R. 557, at p. 571. (4) (1875) LR. 20 Eq. 1, at p. 6.

Warersipe Workers' FEDERATION or AUSTRALIA v. Gucurist, Warr & SANDERSON Lap.

H.C. or A. yitiate the award, such a preference being included in the claim

Lee ator preference for all members of the Federation. The giving Warersipr preference of some members of the Federation over others is a Aue ane matter which affects the Federation alone; it imposes no duty

a upon employers which they are interested in opposing. Sec. 388

AUSTRALIA _ ' aa ' metering: 3 v is a valid provision, for what it prescribes is incidental to preventing

ae or settling a dispute. The power given by sec. 40 includes a power ee SS to give preference to some members only of an organization. The words "such members " in sub-sec. 1 (a) does not necessarily mean all the members of the organization, but may mean a selected class of them, and the words " other persons " may mean all persons not within the selected class. It was intended by sec. 40 (1) to give a power to award something which was outside the limits of the

dispute, although incidental to it. Sec. 40 (1) (b) supports that view.

Sec. 40 is not a limitation on the powers otherwise given, but isan

extension of the power given by sec. 24 (2). There is no inconsistency. between the award and the provisions of the Returned Soldiers and Sailors Employment Act 1919 (N.S.W.): obedience to both is possible. The effect of sec. 31 of the Commonwealth Conciliation and Arbitration Act is that awards of the Court, once they are made, cannot be invalidated by reason of non-compliance with the provisions of the Act. The words of the section cover all the grounds upon which an award could be impeached, and negative the limitation of the section to cases where the award is bad but not for want of jurisdiction. If the effect of sec. 31 is that an award is not to be affected by the fact that it does not comply with the Act, full effect is given to sec. 75 (v.) of the Constitution. Certiorari will not lie in this case. That remedy is not given by sec. 75 of the Constitution. The term " matter" in sec. 75 does not include a remedy against a Court which has no jurisdiction. Certiorari is not within sec. 30 or sec. 80 of the Judiciary Act, and is negatived by sec. 31 of the Commonwealth Conciliation and Arbitration Act. Certiorari does not lie to quash that which is void (R. v. Bristol and Exeter Railway Co. (1) ), and, according to the argument for the prosecutor, the award is void. Certiorari cannot usurp the function of prohibition. (1) (1838) 11 Ad, & El. 202.

[Srarke J. referred to Short and Mellor's Crown Practice, 2nd ed., p- 40; Re Daws (1). [Isaacs J. referred to R. v. Electricity Commissioners (2).|

made its award, is functus officio (In re Clifford and O'Sullivan (3); 4.

cannot obtain work through the Bureau. The permanent hands consisted of returned soldiers or sailors within the meaning of the Returned Soldiers and Sailors Employment Act 1919 of New South Wales, "loyalists," that is, persons in whose favour certain shipowners or shipping representatives, including the Company, might discriminate under an award of the Arbitration Court dated June 1918 (see Waterside Workers' Federation v. Commonwealth Steamship Owners' Association (1) ) and a few other persons who were neither returned soldiers or sailors nor "loyalists." The casual hands, prior to the award of December 1923, consisted of returned soldiers and sailors, some of whom, I understand, were members of the Federation, and "loyalists" ; but since the award the "casuals" have consisted of returned soldiers or sailors only. Admittedly, since the award, " permanent hands," that is to say, returned soldiers and sailors, "' loyalists," and possibly some of the few men neither returned soldiers or sailors nor " loyalists," have been doing wharf labourers' work in and about ships controlled by the Company. Moreover, the Company insists that this employment is lawful and in no wise a contravention of the award. But the fact remains, as to the permanent hands, that the Company did not give preference, in connection with wharf labourers' work which it required to be done, to returned soldiers and sailors members of the Federation over the " loyalists" and the few other men already referred to, as prescribed by the award. It follows, I think, that discrimination is

exercised in favour of these "loyalists" and " other men " against members of the Federation. So far as the " casuals " are concerned, no contravention whatever of the award has been proved. They are all returned soldiers and sailors, and the award does not prohibit employers from selecting for work those whom they please, within the preferred class. And by the terms of the award itself, discrimination is allowed in favour of returned soldiers or sailors against members of the Federation. The Bureau, in order to comply with the award, notified some 200 "loyalist" wharf labourers who were " casuals" not to use the Bureau again. Those who are acquainted with the history of the " loyalists," which is set out by my brother Higgins, when President of the Arbitration Court,

in Waterside Workers' Federation v. Commonwealth Steamship Owners' Association (1), may feel that the December award did not, through some lack of appreciation of the facts, sufficiently provide for the protection of these unfortunate men, but that is in truth a matter wholly for the consideration of the Arbitration Court.

The practical object of the injunction proceedings now before us is to oust the permanent-hand "loyalists " and " other men" from the wharf labourers' work required by the Bureau or its members to be done in Sydney. Preference to soldiers and sailors members of the Federation will exclude the " loyalists," because the former class will absorb most, if not all. of the wharf labourers' work required by the Company and other members of the Bureau. Again, the clause in the award providing that the Company and other members of the Bureau shall not discriminate against members of the Federation also seriously affects the position of the "loyalists " and their chance of employment. A pious declaration is set forth in clause 8 of the award that the members of the Federation will not unduly interfere with or make things unpleasant for the " loyalists " who may be employed from time to time during the award and will favourably consider applications of competent and eligible "loyalists" to become members of the Federation. It does not surprise me that the Company makes a last stand for these "loyalists" and others, numbering some 200 men. They have never been heard by any Court, but are described as "highly efficient, obedient, speedy, dependable and honest workmen, and willing to undertake the handling of any class of cargo." According to the Federation, the Arbitration Court requires, in the interests of industrial peace, that these men should be sacrificed, in the manner already indicated, and their skill lost, I fear, to the waterfront of Sydney.

The Company seeks to avoid this result and to justify or excuse its action in allowing these men to do wharf labourers' work in and about ships controlled by it, on several grounds : - (1) That the men are not employed by the Company, and the duty prescribed by the award is to give preference of employment, when requiring wharf labourers' work to be done. The Bureau, so it was argued, and not

Wartersipe Workers' FEDERATION oF AUSTRALIA v Omicarisr, Warr & SANDERSON Lrp.

H.C. or A. 1924. WATERSIDE Workers' FEDERATION oF AUSTRALIA v Gitcarist, Warr & SANDERSON Lr.

the Company, employed the men. I pass by the fact that the Company was one of the members of the Bureau, and, therefore, a member of the firm which employed the men, because it is simpler to treat the Bureau, for the purposes of the present case, as a separate and independent entity. The Bureau, in my opinion, acted simply as a supplier of labour to its members : it hired the services of wharf labourers to such members at an agreed amount; it engaged the "permanent hands," and, if a member required wharf labour, then he notified the Bureau, which supplied the number of men required - from the '" permanent hands" in the first place, and, in the event of a shortage, from the "casual hands." The members did not pay the men for their services, but paid the Bureau; and they did not exercise the power of dismissing the men for misconduct, unskilfulness or any other reason, but made complaint, in such cases, to the Bureau, and the Bureau then dealt with the matter. The control and direction of the men, however, in loading and unloading the Company's ships, was, I am satisfied, in the hands of the member using their services, namely, the Company, and the men were bound, in the course of their work to conform to the orders of that member. In such cases the law is clear enough: when an employee is sent by his employer to do work for another, it is a question of fact whether he becomes quoad hoc the employee of the person for whom he is, for the time being, working, or whether he remains in all respects the employee of his ordinary employer (see Salmond on Torts, 5th ed., p. 99; Donovan v. Laing &c. Syndicate (1); Jones v. Scullard (2); Hall v. Lees (3) ). The facts of the present case make it abundantly clear, to my mind, that quoad the loading and discharging of the Company's ships the wharf labourers were in its employ and under its directions. (2) That the Court had no jurisdiction to prescribe that the Company should not discriminate against members of the Federation. The opinion of my brother Higgins in the Engine-Drivers' Case (4), when sitting as President of the Arbitration Court, was strongly relied upon in support of this proposition. Preference was claimed ; but the Court is not restricted to the relief claimed, and may give such relief, within the ambit of

(1) (1893) 1 Q.B. 629. (3) (1904) 2 K.B. 602. (2) (1898) 2 Q.B. 565. (4) (1913) 7 C.ALR., at p. 147.

the claim, as seems to it expedient (Commonwealth Conciliation and Arbitration Act, sec. 38z). Now, the Court refused the full claim to preference, but granted it in part and also a lesser remedy, namely, that the employers should not discriminate against members of the

union. Such a provision as this is, in my opinion, clearly within eee

• R . P AUSTRALIA the ambit of the claim, and is an industrial matter which the v.

Arbitration Court is competent to award (Commonwealth Conciliation OWarr &

and Arbitration Act, sec. 4). (3) That the award preseribing SYP" preference relates to men paid on the hourly basis (' casuals"), -

: . arke J and not to men paid on the weekly basis ("' permanent hands"). The =

argument was based on the fact that the main award of the Arbitration Court in relation to waterside workers only prescribed an hourly rate of wage. Therefore, it is said, the award cannot apply to men who are not engaged on an hourly basis. A minimum wage at an hourly rate is prescribed by the award, however, for waterside workers members of the Federation, if employed by the Company and others ; and apart from some special provision in the award, employment on a weekly basis and payment at a weekly rate would not enable the employer to escape payment of the minimum wage fixed at the hourly rate, if the weekly sum fell below that amount. The argument,

is as faulty in logic as it is bad in law. But then it was claimed that the men employed at weekly rates were exempted from the preference clause by reason of the express provision of the December award : "the employment of men at weekly rates of wages who are not returned soldiers or sailors shall not be deemed a breach of this award as to preference if the respondents (who include the Company) first offer weekly employment to returned soldiers and sailors at the rates they are willing to pay to employees engaged at weekly rates instead of at casual rates." This argument fails for two reasons : one that the Company did not employ men at weekly rates - it hired them on terms from the Bureau, and paid the Bureau for their services at a rate based on the number of hours worked ; the other that it did not offer weekly employment to all the preference men at weekly rates or at all. (4) That preference to returned soldiers and sailors members of the Federation was contrary to the provisions of the law of the State of New South Wales (Returned Soldiers and Sailors Employment Act 1919 (No. 38), sec. 3) and, therefore, beyond

WartersIDE Workers' FEDERATION oF AUSTRALIA o. GutcuRIst, Warr & SANDERSON Lro.

the constitutional power of the Commonwealth. The argument is based upon Federated Saw Mill, Timber Yard and General Woodworkers' Employees' Association v. James Moore & Son Pty. Ltd. (1) and Whybrow's Case (2); and, if those cases be still law, I should be prepared to assent to the argument. The State Act provides that every employer " shall give preference in employment inany . . . industry to a returned soldier or sailor who . . . is registered for employment in that . . . industry under section ten of this Act, or applies in writing, for such employment, and is not excluded from the benefits of this Act, as against any other person offering his service at the same time." But by force of the definition in sec, 2, the returned soldier must be resident in New South Wales, and his enlistment must have terminated. Now, the Federal award is less extensive in some respects than this provision, and more extensive in other respects. Thus the preference under the award is limited to soldiers and sailors members of the Federation, but is not conditioned upon residence in New South Wales or upon registration under the State Act. There may be some returned soldiers and sailors who fall within the terms of both the State Law and the Federal award, and who can claim preference under each provision (cf. Engine-Drivers' Case (3) ). But, in the main, the State Act and the award must conflict in operation, and both cannot be obeyed. The award is, therefore, in my opinion, inconsistent with the State law. It is impossible, however, to my mind, to reconcile the principles underlying the decisions in the Woodworkers' Case (1) and Whybrow's Case (2) with the decision of this Court in the Engineers' Case (4), where the Court said: "' However valid and binding on the people of the State where no relevant Commonwealth legislation exists, the moment it" (that is, the State legislation) "encounters repugnant Commonwealth legislation operating on the same field the State legislation must give way." An award made under the authority of the Commonwealth legislation takes its sanction and its force from that legislation, and has, therefore, supremacy over the State law. Consequently this argument also fails. (5) That the award of preference to returned soldiers and

(3) (1920) 28 C.L.R., at p. 12. (4) (1920) 28 C.L.R. 129.

provisions of sec. 81a transcends the constitutional power of the

'The preference prescribed is '' over all persons," but, subject to the , provisions of sec. 8la of the Act, and that, no doubt, gives the selected class, subject as aforesaid, preference over other members of the Federation as well as over persons who do not belong to it -

preference for some of its members over other members, but over non-members. But there can be no doubt that the Arbitration Court might obtain cognizance of an industrial dispute involving a claim for preference of a selected class of unionists over " all other persons," and make an award with respect thereto. An industrial dispute includes a dispute as to industrial matters, and industrial matters include the employment, preferential employment, dismissal, or non-employment of any particular persons (see Arbitration Act, secs. 4, 19, 24). The question is whether the Arbitration Court can make such an award if no dispute or claim was raised as to the particular matter awarded and now in controversy. Two sections were relied upon for this purpose, namely, secs. 388 and 40. I pass by sec. 38n, because the provisions of sec. 40 warrant, in my opinion, the award made by the Court. That section is not a limitation but an expansion of the authority of the Arbitration Court: it is a substantive grant of authority to the Court in connection with industrial disputes of which it has cognizance, whether preference has or has not been put in dispute by the parties, or claimed in the proceedings before it. It may be exerted even after an award has been made, on the application of any organization or person bound by the award, and whenever, in the opinion of the Court, it is necessary for the prevention or settlement of an industrial dispute or for the maintenance of industrial peace or for the welfare of society. As a matter of construction the section enables the Court, in my opinion, to select the members of organizations who shall have preference, and that selection may be for or against all the members of an organization or for or against a limited class among them. But the selection being made, then other things being equal, preference "shall . . . be given to such members," that is, to the members

non-unionists, as they are called. The Federation did not claim 5

Commonwealth, and exceeds the authority of the Arbitration Court. wa

sailors members of the Federation over all persons subject to the H.C. or A 1924.

WATERSIDE Workers" FEDERATION or AUSTRALIA v. GILcuRisr, Warr & SANDERSON

selected, over "other persons "" - which phrase must, to my mind, denote all persons but the selected class. There is no reason that I can understand for limiting the words " other persons " to persons who are not members of the organization. It has been suggested that this construction of sec. 40 exceeds the constitutional power of the Commonwealth. But the Parliament has " power to make laws for the peace, order, and good government of the Commonwealth, with respect to . . . conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State," and, while the power of the Parliament is limited and cannot be transcended, yet within the ambit thereof the Parliament is supreme and may " use any means which are in fact conducive to the exercise of a power granted by the Constitution " (Stemp v. Australian Glass Manufacturers Co. (1)); "you may complement, but you may not supplement, a granted power " (Whybrow's Case (2) ). Now, implicit in sec. 40 is the necessity of some industrial dispute before the powers conferred by that section can be exercised. The constitutional power is not limited to a determination by means of arbitration of the matters or items in dispute, but is a power to make laws with respect to arbitration for the prevention and settlement of industrial disputes. Given a dispute, actual or threatened, it is within the competence of Parliament to say what means, what powers and authorities, the arbitrator may use for the purpose of settling or preventing that dispute. If industrial peace be the object of the Constitution and the Arbitration Act, and the Legislature attempts to attain that end by means of a power conferred upon the arbitrator to grant preference, then Courts of law cannot deny that the end justifies the means, however severely some individuals may suffer (see Adkins v. Children's Hospital (3) - Holmes J.). In my opinion, the provisions of sec. 40 complement, and do not: supplement, the constitutional power of the Commonwealth, and are competent and valid provisions (cf. Waterside Workers' Case (4) ).

Consequently, it appears to me that an injunction must issue against the Company restraining further contravention of the

(1) (1917) 23 CLLR. 226, at pp. 232, (8) (1923) 261 U.S. 525, at p. 571 234. (4) (1920) 28 C.L.R. 209,

award of the Arbitration Court. It follows, of course, that the H.C. or A order nisi for prohibition and certiorari must be discharged. pei I should have been glad to leave the matter here, but the opinions Warerswr

v : prepared by my brother Isaacs, in these cases and in Ince Bros.' Case y rf (1), make desirable some reference to sec. 31 of the Commonwealth 0" 114

Conciliation and Arbitration Act and to the power to issue prohibition to the Arbitration Court. So far as sec. 31 is concerned, no one can deny that the Parliament cannot transcend the Constitution by any form of words or by any device. "From the authority to ascertain and determine the law in a given case there necessarily results, in case of conflict, the duty to declare and enforce the rule

of the supreme law and reject that of an inferior act of legislation which, transcending the Constitution, is of no effect, and binding on no one. This is not the exercise of a substantive power to review and nullify Acts" of the Parliament, "for no such substantive power exists. It is simply a necessary concomitant of the power to hear and dispose of a case or controversy properly before the Court, to the determination of which must be brought the test and measure of the law" (Adkins v. Children's Hospital (2)). Thus sec. 31 cannot affect the grant of jurisdiction to this Court contained in sec. 75 (v.) of the Constitution. Nor can it give to an award which transcends the constitutional power of the Commonwealth any validity or force. Some remedies, such as prohibition, mandamus or injunction, so far as they be within the power of Parliament, may be withdrawn from the Courts, but still that does not make such an award efficacious: it is still beyond the power of the Commonwealth, and binding upon no one. So that if Parliament, as in sec. 31, enacts that the award shall not be challenged in any Court, still, if that award transcends the Constitution, it is of no effect. The supreme law must prevail and the provisions of sec. 31 must be rejected. Consequently I should have felt no difficulty in tefusing an injunction in this case if I were of opinion that the provisions of sec. 40 exceeded the constitutional power of the Commonwealth. But I will not further pursue the consideration of sec. 31, for I realize that the views I have expressed are mere dicta and quite unnecessary for the determination of these cases.

The power of the High Court to issue prohibition to the Arbitration : Court has been affirmed on many occasions. Every member of this Court, both past and present, has affirmed and acted upon the

Feprration power and no question has been more hotly contested or more

The long history of the controversy may be found in the following cases: Broken Hill Case [No. 1} (1): Whybrow's Case (2); Tramways Case (No. 1] (3); Builders' Labourers' Case (4) ; Holyman's Case (5); Tramways Case [No. 2] (6); Alexander's Case (7); Hibble's Case [No. 1] (8); Hibble's Case [No. 2] (9). To which may be added two cases relating to proceedings for prohibition to State industrial tribunals, namely, Clancy's Case (10); Amalgamated Society of Carpenters and Joiners v. Haberfield Pty. Ltd. (11). It is now suggested that the power does not exist ; firstly, because the award of the Arbitration Court is legislative and not judicial in character and, secondly, because prohibition cannot in any case be granted after an award has been made, for the arbitrator is then functus officio. Neither argument has escaped the attention of the Court. In Whybrow's Case (12) Griffith C.J. said : - ' A prohibition is a writ directed to the Judge and parties in an inferior Court, and does not lie except to persons or bodies exercising judicial or quasi-judicial functions. It lies to a pretended Court as well as to a real one (Chambers v. Jennings (13) ). When, therefore, the Constitution speaks of a prohibition against an officer of the Commonwealth it means an officer whose functions are judicial or quasi-judicial. It cannot be denied that the Judge of the Arbitration Court is an officer of the Commonwealth, or that his functions are judicial." And in the Tramways Case (No. 1] (14) my brother Isaacs was even more explicit : - " It is necessary to define the exact point arising for our decision. The application is to prohibit the Arbitration Court, as I term it for brevity, from enforcing an award already made and

completed ; that is to say, it is not an application to prevent the (1) (1909) 8 C.L.R. 419. (8) (1920) 28 C.L.R. 456. (2) (1910) 11 C.L.R. 1. (9) (1921) 29 MLE 290. (3) (1914) 18 CLR. 54, (10) (1904) 1 C.L.R. 181. (4) (1914) 18 C.L.R. 225. (11) (1907) 5 CLR. 33. (5) (1914) 18 C.L.R. 273. (12) (1910) 11 "iste. at p. 22. (6) (1914) 19 CLR. 43. (13) (1703) 2 Salk. 553. (7) (1918) 25 CLLR. 434. (14) (1914) 18 C.L.R., at pp. 70-77.

• President from proceeding to make an award. The difference is H.C. or A.

4 Ae f we : vig 1924. precisely as if in ordinary State jurisdiction a private arbitrator peake

made an award between the parties, and it were then filed as a Warersmwe

' . ae Workers' rule of Court, or an action were brought upon it in the Supreme Court. Frpzration

The fact that the arbitrator happens to be personally identical with 4,0",

TRALIA an individual who presides in the Court is irrelevant. The tribunals , Gitcurist,

are distinct ; and the question is whether 'a Court' can be prohibited Warr & under sec. 75 (v.) of the Constitution. The well-known rule that a S - pEtso™

judgment given without jurisdiction can be prohibited so long as stakes. anything remains to be done under it, does not touch this point. The Legislature has assumed to create a Court of Record for all purposes, preliminary and consequent, as well as for the actual settlement of the dispute. And no doubt the nature of the function of the arbitrator in actually determining the dispute is quasi-judicial, in the sense indicated by Lord Selborne in Spackman v. Plumstead Board of Works (1). That would be sufficient according to the established authorities to attract prohibition in a proper case. See, for instance, Church v. Inclosure Commissioners (2); R. v. Local Government Board (3); Great Western Railway Co. v. Waterford and Limerick Railway Co. (4); In re Local Government Board ; Ea parte Kingstown Commissioners (5); Partridge v. General Council of Medical Education (6); R. v. Clerkenwell General

• Commissioners of Taxes (7)." (To these I would add the late case of R. v. Electricity Commissioners (8).) "But in the sense that constitutes a judicial tribunal a Court of justice, one of the kind of Courts in which the Constitution vests the judicial power, the arbitrator is not a 'Court,' and in my view - reasons for which appear in the Sawmillers' Case (9) and in the Boot Employees' Case (10) - the Legislature cannot convert him into a 'Court' within the meaning of the Judicature provisions of the Constitution. So muuch of the Arbitration Act as assumes to do so may, in my opinion, be simply disregarded. The President has all necessary powers, and the mere fact that he is called a Court does not affect his powers.

(1) (1885) 10 App. Cas. 229, at p.240. (7) (1901) 2 K.B. 879.

(2) (1862) 11 C.B. (N.S.) 664. (8) (1924) 1 K-B. 171.

(8) (1882) 10 Q.B.D., at p. 321. (9) (1909) 8 CL.R. 465.

(4) (1881) 17 Ch. D.'493. (10) (1910) 10 C.L.R., at pp. 316 (6) (1885) 18 LR. Ir, at p. 514. et 8eqq.

H.C. or A. But in respect of the enforcement of an award, the position is entirely

ne different. The award, when made, creates and settles rights, and Warersrx those rights may be judicially enforced in the manner prescribed by ae the Legislature, by any recognized Court, and, in my opinion, by

Auseaanis 20 other, because such enforcement, including interpretation, is %. properly within the judicial power. In this domain the Court is Gncurisr,

Warr & well constituted, and none the less by reason of the wide provisions area © of sec. 25 of the Act. That section should be read as a procedure section, and it does not except 'rules of law,' as was the case in Moses v. Parker (1), a circumstance that seems to me to have been the real point of the judgment of the Privy Council. And see Canadian Pacific Railway Co. v. Toronto Corporation (2). The Legislature, so far from contemplating the Court being free from any rules of law, clearly intends that the rights of the parties shall be fixed by the award, and that those rights are to be enforced by the methods prescribed: see, for instance, secs. 32 and 48. The tribunal which in this case is sought to be prohibited is therefore a Court in the strict sense; and the question is, does prohibition ever lie to it, even when it is proceeding to exceed its jurisdiction. I would here introduce a word of caution to avoid future misapprehension. This is not a question whether, whatever be the law as to the nature of an industrial dispute, or the validity of the enactment of preference, that Court has or has not jurisdiction to entertain an application to enforce an award de facto made by the arbitrator, or to decide the validity of any award in whole or in part. That may yet have to be determined. It is simply a question whether, assuming the Court itself to be proceeding without or in excess of jurisdiction, it may be prohibited. . . . On the whole, therefore, I am of opinion that, notwithstanding sec. 31 of the Commonwealth Conciliation and Arbitration Act, it is within the competence of this Court under sec. 75 (v.) to grant prohibition to the Arbitration Court in a case where that Court is proceeding to act without jurisdiction "' (3). Alewander's Case (4) established as a decision the opinion given by my brother Isaacs in the Tramways Case [No. 1] (5) that "in the sense that constitutes a judicial

(1) (1896) A.C. 245. (4) (1918) 25 C.L.R. 434. (2) (1911) A.C. 401. (5) (1914) 18 CLLR. 54, (3) (1914) 18 CLR. at p. 81.

tribunal a Court of justice, one of the kind . . . in which the Constitution vests the judicial power," the Arbitration Court is not a Court, and that so much of the Arbitration Act as assumes to so treat it might be disregarded. But in none of the judgments is any doubt thrown upon the other proposition so explicitly stated in the opinion of my learned brother. In Hibble's Case [No. 2] (1) the whole Court, excepting my brother Zsaacs, who took no part in the case, concurred in granting prohibition to a special tribunal under the Arbitration Act, and it is inconceivable that Alexander's Case (2) was overlooked or forgotten by any member of the Court.

Thus the settled law of the Court is that prohibition may issue to the Arbitration Court. In re Clifford and O'Sullivan (3) is said to conflict with these decisions. But the body there sought to be _ prohibited, though called a military Court, "was not a Court in "Tt was not a Court Martial, that is to say, a

any legal sense. tribunal regularly constituted under military law, but a body of j military officers entrusted by the commanding officer with the _ duty of inquiring into certain alleged breaches of his commands and its 'sentences,' if confirmed, derived their force not

• from the decision of the military Court, but from the authority of the officer commanding His Majesty's forces in the field" (4). _ Prohibition, it was held, did not lie in such a case, because the officers constituting the military Court did not claim to act as a judicial _ tribunal in any legal sense. But Viscount Cave, with whom Lords Atkinson and Shaw concurred, said (5) : - 'It is true also that in R.v. Local Government Board (6) Brett L.J. expressed the opinion _ that the Court should not be chary of granting prohibition, and that _ wherever the Legislature entrusts to any body of persons, other than the superior Courts, the power of imposing an obligation upon individuals, the Court ought to control those persons if they attempt to go beyond the powers given to them by Act of Parliament ; but even if this view be accepted, it cannot cover the case of a body of persons to whom no such powers have been entrusted either by Parliament or by the common law. It is unnecessary to decide (1) (1921) 29 C.LR., 290. (4) (1921) 2 A.C, at p. 581.

(2) (191#) 25 CLLR. 434, (5) (1921) 2 A.C., at p. 583. (3) (1921) 2 A.C. 570. (6) (1882) 10 Q.B.D., at p. 321.

WATERSIDE WorkKERs' FEDERATION or AUSTRALIA v. GILcHRIsST, Warr & SANDERSON Lrp.

Warersir Workers' FEDERATION oF AUSTRALIA v. Grcarist, Warr & SANDERSON Lr.

whether prohibition could in any case be granted against a body 9 improperly setting itself up as a Court with legal authority to try cases and pass judgments; but, however that may be, there is no precedent for the issue of " a " writ against a body which has no statutory or common law authority to do either, and which claims no such authority." A reversal of the whole of the decisions and practice of this Court cannot be justified on the strength of anything - decided in Clifford's Case (1).

Again, this Court has determined that prohibition can issue to the Arbitration Court after an award has been made - that the Arbitration Court is not then functus officio (Tramways Case [No. 1] (2): Tramways Case [No. 2] (3); Builders' Labourers' Case (4)). In Clifford's Case Viscount Cave said (5): "A further difficulty is caused to the appellants by the fact that the officers constituting the so-called military Court have long since completed their investigation and reported to the commanding officer, so that nothing remains to be done by them, and a writ of prohibition directed to them would be of no avail (see In re Poe (6) and Chabot v. Lord Morpeth (7) )." But, in the case of the Arbitration Court, established under the Federal law, its award is subsisting and operative, and the proceeding in which it issues remains pending in the Court. Any question can be reopened, and any award or order can be varied (sec. 38 (0) and sec. 39). Nothing in Clifford's Case, however, throws any light upon the proper application of the well-known and Jong established legal principle mentioned therein to tribunals lawfully established as Courts with arbitral functions and statutory authority. It seems to me that the members of this Court should stand upon its decisions, and upon the law so declared, and that they ought not individually to depart from them. "It is," of course, " impossible," as Griffith C.J. said in the Tramways Case [No. 1] (8); " to maintain as an abstract proposition that the Court is either legally or technically bound by previous decisions. Indeed, it may in a proper case be its duty to disregard them-

(1) (1921) 2 A.C. (5) (1921) 2 A.C, at p. 584, (2) (1914) 18 F (6) (1833) 5 B. eau. Bat (3) (1914) 19 (7) (1850) 15 Q.B. 446,

(4) (1914) 18 CLLR, 224. (8) (1914) 18 er at p. 58.

But the rule should be applied with great caution, and only when the previous decision is manifestly wrong, as, for instance, if it

• is contrary to a decision of another Court which this Court "is bound to follow ; not, I think, upon a mere suggestion that some or all of the members of the later Court might arrive at a different conclusion if the matter were res integra. Otherwise there would be grave danger of a want of continuity in the interpretation of the

• law." And, in any case, we did not, in the cases now before us, assume the responsibility of reopening the former decisions and

reconsidering the reasons upon which they were rested.

Isaacs J. As the opinions of those who are in favour of granting an injunction differ as to its extent, the order must be limited to

Order that, other things being equal, the Company be enjoined from (1) preferring any person whatsoever to returned soldiers and sailors who are members of the Waterside Workers' Federation, subject, however, to the provisions of sec. 81 of the Commonwealth Conciliation and Arbitration Act 1904-1920; (2) discriminating in favour of any person whatsoever against returned soldiers and sailors who are members of the said Federation, subject, however, to the provisions of the said section. Respondent to pay costs of injunction motion. Order nisi discharged with costs.

Solicitors for the Waterside Workers' Federation of Australia, J.B. Moffatt; Farlow & Barker. Solicitors for Gilchrist, Watt and Sanderson, H. de Y. Scroggie ;

Warersipg Workers' FEDERATION or AUSTRALIA v. GILCHRIST, Warr & SANDERSON Lev.