Federated Engine-Drivers and Firemen's Association of Australasia v Broken Hill Pty Co Ltd
27 June 1911
Fo]lMiner~
r̂ama
ALR467
[1911.
398 HIGH COURT
H. C. OP A. substantially the whole of the costs were incurred in establishing
the validity of the codicil of 14th April 1903, I do not think
W il so nthat, even in tha t case, there would be any sufficient reason for
V.
altering the order made by Street J. as to the costs.
For these
J
o n e s .
reasons I think th a t the appeal should be dismissed.
Griffith C.J.
Barton J. I agree. I t is only a weak form of expression to say that I share the doubt that Street J. expressed as to whether the appellant really believed the tru th of the case he set up.
O’CoNNOE J. I agree.
Appeal dismissed.
Solicitor, for appellant, A . D. Oliver.
Solicitor, for respondents, A. G. Ehswoi'th.
C. E. W.
FoilCons
Sham\
Khatri v Price
Oooahew \
Terri' -
ALR S i ^ D_
Wan
167 FLR 391
ACSR271
[HIGH COURT OF AUSTRALIA.]
FEDERATED ENGINE-DRIVERS
A N D !
FIREMEN’S ASSOCIATION OF I
Claimants ;
A U S T R A L A S IA ..................................... J
H.
C. OP A
1911.
THE BROKEN HILL PROPRIETARY
R espondents,
M e l b o u r n e ,COMPANY LIMITED .
.
May 29, 30, 31; June 1,2.
Sy d n e y , Industrial Conciliation and Arbitration— Industry,^' meaning of—Registration of June 27.organization Association of employes—Certificate o f registration, effect of— Evidence o f existence of dispute—Municipal corporation, exemption of, from
Griffith C.J.,
Barton,
federal legislation—Municipal trading—Commonwealth Conciliation and Arbi
O’Connor,
tration Act 1904-1910 {No. 13 o/1904 and No. 7 o/1910), secs. 4, 21, 40a, 55,
Isaacs and
Higrgins JJ.
57.
399
12 C.L.R.]
OF AUSTRALIA.
An “ industry ” contemplated by the Commonwealth Conciliation and Arbi-
H . C. oi' A.
tration Act 1904-1909 means an enterprise in which both employers and 1911.
employes are associated, and does not include the vocation of persons doing ' ̂ '
a particular kind of work in connection with several diflferent classes of such
enterprises.
D r iv e r s
Held, therefore, by Griffith C.J. and Barton and Isaacs JJ. (O'Connor and
Higgins JJ . dissenting), that an association of land engine-drivers and fire- Association
men, whose members were employed indiscriminately in mines, in timber OE Atrs-
yards, in tanneries, in soap and candle works, &c., was not, under sec. 55 (1) tbala sia
(6), entitled to be registered as an organization.
B r o k e n
. . . H il l
P r o
A certificate by the Registrar of the registration of an organization given pujetaryCo.
under sec. 57 of the above Act is not conclusive evidence of the validity of L t d .
such registration.
A certificate given by the Registrar under sec. 21 of the above Act that a dispute relating to industrial matters is an industrial dispute extending beyond the limits of one State is not evidence of the existence of an industrial dispute within the meaning of the Act.
Per Higgins J .—It is the duty of the Court, on a case stated under sec. 31, to answer judicially the questions asked in pursuance of that section, and to leave the consequences of tlie answers for the President of the Arbitration Court to determine.
Semble, assuming that a municipal corporation is an instrumentality of State government, if the corporation engages in a trading enterprise, e.g., thesupply of electricity to those who choose to buy it, it is not in respect of such enter prise exempt from federal legislation under the rule laid down in D’Emden v. Pedder, 1 C.L.R., 91.
Case stated by the President of the Commonwealth Court of
Conciliation and Arbitration for the opinion of the High Court.
The following, so far as material, is the case stated :—
“ 1. The claimant is an association of employes which is in fact
registered as an organization under the Act in or in connection
with what is styled the industry of ‘land engine-driving and
firing.’
“ 2. Members of the association are employed for the purposes of engines in many undertakings of various characters, e.g., in mines, in timber yards, in tanneries, in soap and candle works.
“ 3. Objection has been taken at the hearing by certain respondents that such an association is incapable of registration under the Act.
“ 4. No application has been made to the Registrar to cancel, or to apply for the cancellation of the association.
400 HIGH COURT
[1911.
H.C. or A. “ 5. Objection has also been taken that certain of the I’espond-
| 1911.ents are not subject to the power of the Court, on the ground |
F e d e r a t e dthat they are State agencies or instrumentalities. For instance—
E n q in e -
D b i v b h s
The Board of Water Supply and Sewerage, Sydney.
A N D
The Mayor, Aldermen, Councillors and citizens of the City
F ir e m e n ’s
A sso cia tio n
of Melbourne.
o r A u s tr a la sia“ 6. These respondents are constituted under State Acts, and
V.the parties are at liberty to refer to all relevant Acts in argument.
B r o k e n
“ 7. Objection has also been taken by certain of the respondents is bound by the ordinary rules of evidence in dealing with evi dence tendered to show that there is jurisdiction for this Court to arbitrate, e.g., to show that there is or is not a dispute or a dispute extending beyond the limits of any one State.
H il l P r o
p r ie t a r y Co .
L t d .that, notwithstanding sec. 25 of the Act as amended, this Court
“ 8. In pursuance of sec. 21 of the Act, the Registrar issued a certificate which has been put in evidence to the effect that ' the said dispute in connection with the land engine-driving and firing industry is an industrial dispute extending beyond the limits of any one State.’
“ The claimant contends that the certificate is prim d facie evi dence of tlie existence of a dispute relating to industrial matters, and in connection with the land engine-driving and firing industry, as well as of the fact that the dispute is one extending beyond the
limits of any one State.
'
“ 9. I have prepared provisionally an award, but in consequ ence of the views of the High Court as expressed in R. v. Com monwealth Court o f Conciliation and A rb itra tio n ; Ex parte Whyhrow & Co. ; the Bootmaker’s Case (1), I am doubtful whether the High Court will not consider the provision for a Board of Reference to be a delegation of my discretion or powers and to be invalid in whole or in part. Sec. 40a of the Act purports to permit a delegation to some ex ten t; but is section 40a valid ?
“ I submit the following questions for the opinion of the High Court—questions arising in the proceeding which are, in my opinion, questions of law :—
“ 1. Is an association of land engine-drivers and firemen
(1) 11 C .L .R , 1.
401
12 C.L.R.]
OF AUSTRALIA.
an association that can be registered under sec. 55 of R-
ly 1 !•
the Act ?
“ 2. If not, is the objection fatal to the claim when the fedebatbd
J. , ■o
E n g in e -
case comes on tor nearing ?
D r iv ers
“ 3. Are the respondents whose names appear in paragraph
5 hereof, or any, and if so whicli of them, subject to a sso c ia tio n
the jurisdiction or award of this Court ?
tb a la sia
“ 4. Is this Court ' bound by any rules of evidence ’ when
evidence is tendered to show or to negative juris- Hill P b o -
T „ p b ie t a b y Co .
d i c t i o n !
L t d .
“ 5. Is the certificate of the Registrar to be treated as
------
prim d facie evidence of the fact of the existence of a dispute relating to industrial matters, and in con nection with the land engine-driving and tiring industry, or of any other and what facts ?
“ 6. Has tins Court power to include in the award the provisions for a Board of Reference as appearing in the proposed award, or otherwise; and how otherwise ? ” The only part of the award above mentioned which is material
to this report is the following :—
“ 4. Board of Reference.
“ Should any question or dispute arise between the parties out of this award, or respecting any other matter of their industrial relations, it may be referred to a Board of Reference. The Board of Reference includes either a Commonwealth Board or a Board for the State of emplojmient.
“ In either case the Board shall consist of an equal number of employers (or their representatives) and of employes (or their representatives), chosen in the manner approved (whether after or before the choice) by the Registrar or the Deputy Registrar.
“ The certificate of the Registrar that the Board is properly constituted shall be conclusive for the purposes of this award.
“ If the members present at the meeting of the Board are equally divided on any question, the dectsion of the Registrar or Deputy Registrar may be taken, and his decision shall be taken to be the decision of the Board.
“ The decision of the Board shall be final and conclusive as between the parties to the reference.”
402 HIGH COURT
[1911.
H.C. OF A.Starke, for twenty-two of the respondents. As to the first
| 1911.question, the association is not validly constituted under the Act. |
F e d f b a t e dIn order to constitute an industrial dispute the dispute must be a
E n g in e -
dispute in an industry, and an industry is something which deals ANDwith the production or distribution of commodities. There must
D r iv e r s
F ir e m e n ’s
be some claim put by one party to another.
There must be some
A sso c ia tio n
OF A u s
tr a la sianexus between the members of the class putting forward the claim.
V .That nexus is to be found either in the industry in which they
B r o k e n
H il l P r o
are employed or in some historical association in industries which
p r ie t a r y Co .
L t d .have been worked together. Sec. 55 (1) (6) and Schedule B
require an industry as the foundation of an organization, and Schedule B indicates that there must be an industry carried on by some employer. There must be some association together of the persons in a proposed organization before an organization can exist. [He referred to Jum hunna Coal Mine, No Liability v, Victorian Goal Miners’ Association (1).] If callings in the abstract are to be the basis of an organization, its members must be of one calling only, and this organization consists of persons belonging to different callings, e.g., engine-drivers, firemen, greasers, &c. The definition of industry in sec. 4 does not use “ calling ” in that sense. The word there may refer to the calling of the employer, e.g., an engineer. In sec. 2 {d) of the Act of 1910 the words “ branch of an industry and a group of indus tries ” show that there must be something which is called an industry. If persons may combine according to the services they perform, there might be an organization of manual labourers.
As to the second question, the certificate of the Registrar under sec. 57 is only conclusive as to the fact of registration, not that the organization is an organization. [He referred to the Jumhunna Goal Case (2).] Sec. 60 does not affect the right of a party to take the objection that the organization is not a lawful organization. [He referred to Carroll v. Shillinglaw (3); I n re National Debenture and Assets Corporation (4) as to the effect of a certificate of registration.]
[Isaacs J. referred to Brosnan v. Trait (5).]
(1) 6 C.L.R., 309, at p. 370, per
(3) 3 C.L.R., 1099, at p. 1108.
Isaacs J.
(4) (1891) 2C h., 505, a tp . 527.
(2) 6 C.L.R., 309, a tp . 312.
(5) 29 F.L.R ., 280 ; 25 A.L.T., 37.
403
12 C.L.R.]
OF AUSTRALIA.
H. C. o¥ A.
If the existence of the organization is a condition precedent to jurisdiction no certificate can validate the organization.
1911.
The fourth question turns upon sec. 25 of the Act of 1904 as amended by sec. 6 of the Act of 1910.
F e d e r a t e d E n g in e -
The final determination
D r iv e r s
AND
whether there is a dispute must proceed upon legal evidence. F ir e m e n ’s
Sec. 25 never comes into operation until the Court is properly
A sso ciatio n
OF A u s
seized of the case. The President may, for his own satisfaction,
tr a la sia
B r o k en V.
inquire whether there is a dispute, and may do so on what evi
dence he chooses, or he may leave tlie question alone. But when H il l
P r o
pr ie t a r y Co.
his award is attacked on the ground of want of jurisdiction this
L t d .
Court will determine the fact of the existence of a dispute upon legal evidence.
The fifth question is founded upon sec. 21 of the Act of 1904. That section is invalid under the Constitution. The Parliament cannot make the certificate of the Registrar proof of a fact upon which to found the jurisdiction of the Court. The certificate is only made evidence that something which is said to be a dispute extends beyond one State, not that something which is called a dispute is a dispute.
As to the sixth question, the Boai’d is not one within sec. 40a (sec. 10 of the Act of 1910), and if it be compulsory on the appli cation of one party, is unauthorized. If it is optional it is unauthorized, but can do the respondents no harm.
[G r if f it h C.J.—If it is optional and a determination is given
by the Board, how is it to be enforced ? Is a breach of it subject
to a penalty under sec. 44 ?]
South Carolina v. United States
There is no Court which could enforce it. wealth cannot impede or interfere with State functions. Municipal government is a State function. Any function which is conferred upon such a body as a municipality to carry on for the benefit of the community, as opposed to private benefit, is a State function. If the Government, by its agency, takes control of such a matter as electric supply and uses it for the public benefit, it is a Govern ment function. The only test of what is a Government function is, has the Government taken upon itself to do the thing for the benefit of the community ? Until
404 HIGH COURT
[1911.
H.C. OF A.(1) the Supreme Court of the United States had always denied
| 1911,the power of the Federal Government to tax the funds of muni |
F e d e r a t e d
cipalities howsoever arising. The test put is, has the particular
E n g in e ■
Dr iv ers
function been conferred upon the municipality by the State ? [He
A N D
referred to the Electric Light and Power Act 1896, secs. 10, 15,
F ir e m e n ’s
A sso ciatio n
16, 17 ; and the Melbourne Corporation Acts (6 Viet. No. 7, &c.).]
OF A u s tralasiaAll the moneys from electric lighting are paid into the general
V.municipal fund, and the Commonwealth cannot tax that fund.
B r o k en
H il l P r o Municipalities have been held to be State instrumentalities since
p r ie t a r y Co .
| Merryweather v. Garrett (2). | United States v. Railroad Go. (3) |
L t d .
is most strongly in favor of this view, and until the Soitth Caro lina Case (1) that view was maintained. Even if the power given is to carry on trade for the benefit of the public it still is a government function, and whether it is compulsorily exercised or is merely permissive. If a power is conferred upon a creature of the State which has no existence except as a creature of the State, the exercise of that power is by the State by means of its auxil-
liary.
[He referred to South Carolina v. United States (4).]
[ I saacs J. referred to Broughton v. Pensacola (5); Mount Pleasant v. Beckiuith (6); Mobile v. Watson {1); Western Saving Fund Society v. City o f Philadelphia (8); Bailey v. Mayor of New York (9); and Pioneer Go. v. Board o f Education (10;, as showing tha t in the United States a distinction is drawn between those functions of municipalties which are regarded as State functions and those which are not, the distinction being based on the English cases of Moodalay v. Morton (11) and R. v. McCann
( 12) .]
The English cases are not relevant to the present. They deal only with the question whether the occupation of buildings is occupation by a public official. The American decisions referred to deal with the question whether municipalities are liable for negligence in carrying out their dirties, and it has been decided that in respect of property they hold, or contracts they enter into.
(1) 199 U.8., 437.(7) 116 U.S., 289, at p. 304.
(■2) 102 U.S., 472.(8) 31 Penn. St. H., 185.
(.3) 17 Wall , 322.(9) 3 Hill, 531.
(4) 199 U.S., 4.37, at pp. 454, 4.58, 459,
(10) 136 Am. St. Rep., 1021.
464. 469.(11 )
1 Bro. C.C., 469.
(5) 93 U.S., 266, at p. 269.(12) L.R. 3 Q B., 141, at p. 146.
(6) lOOU.S., 514, a tp . 533.
405
12 C.L.R.]
OF AUSTRALIA.
H. C. OF A.
their liabilities are the same as those of private individuals.
Here
1911.
there is no doubt as to the liability of municipalities for negli
gence and as to their obligation to carry out contracts. Those
F e d e b a t b d
E n g in e -
cases have no bearing on the power of the Federal Government to
D k iv ers
AND
interfere with municipalities. If this principle is not to be fol
F ir e m e n ’s
lowed then the supply of electricity is as much a public purpose
A sso cia tio n
OF A d s -
as railways or gas or water supply. No distinction can be made
TKALASIA
B r o k e n V.
between electricity applied to public lighting and tha t sold to
private persons. Whatever the principle to be applied is, this H il l
P r o
p r ie t a r y Co .
award will operate directly upon the general municipal fund, no L t d .
matter how they were derived.
[G r if f it h C.J.— Would not the express power as to conciliation and arbitration get rid of the implied power of non-interference ?] No. The power of conciliation and arbitration is in the same position as that of taxation. The taxation power is general, but this Court has applied to it the doctrine of non-interference with State agencies. As to the Sydney Board of Water Supply and Sewerage, he referred to 43 Viet. No. 32, secs. 8, 32, 34; 51 Viet. No. 28 ; 53 Viet. No. 16.
Jlali, for the claimant. As to the first question, the word industr^^ may be looked at from the employes’ view as well as from the employers’. In the former case a man’s calling in the ordinary sense is his industry. His industry is determined, then, by the class of work he does—e.g., engine-driving, carpentering. His employer may then be said to be connected with that industry, and a number of employers connected with that industry could form an organization. The Court should decide this question having regard to sec. 55 of the Act of 1910, although this organization registered before that Act. A man’s calling does not alter so long as he does the same class of work.
As to to the second question, the Arbitration Court can deal with a matter in which the organization concerned has not been properly registered if it can then be properly registered. When a means is provided for getting rid of a registration, and that means is not availed of, the party who might have availed him self of it is estopped from denying the validity of the registration when the case comes on. The President, under sec. 57, is entitled
406 HIGH COURT
[1911.
H. C. O F A.
to treat the certificate of the Registrar as conclusive evidence of
1911.the registration, and that the association was registrable.
Even
if the registration can be attacked it is only by prohibition.
F e d e r a t e d E n g i n e -
D b iv e r s[ H ig g in s J.—Sec. 60 (1) (h) shows tha t cancellation of regis
AND
tration may be applied for upon a ground which goes to the root
F ir e m e n ’s
A sso cia tio n
of the jurisdiction.
OF
A u s
trala sia
Isaacs J.—referred to the Companies Act 1908 (Eng.) sec. 17
V. as to the effect of a certificate.]
B r o k e n
As to the fourth question, the inquiry as to whether there is jurisdiction is a “ proceeding under the A c t” within sec. 25 as amended by sec. 6 of the Act of 1910. [He referred to Federated Amalgamated Government R ailw ay and Tram way Service Association v. New South Wales Railw ay Traffics Employes
H il l P r o
p r ie t a r y Co .
L t d .
Association (1).]
'
As to the fifth question, the certificate presupposes a dispute. The Registrar would not be justified in giving his certificate unless he found there was a dispute.
As to the sixth question, the only provision for a Board of Reference is in sec. 40a. This Board is not within that section, but may be brought within it by providing for the President appointing a Board consisting of persons selected by employers and employes. Sec. 40a is valid. So long as the Parliament maintains the arbitral form of dealing with industrial disputes they may choose whatever means they like to carry out their power.
As to the third question, counsel did not argue as to Board of Water Supply and Sewerage, Sydney. As to the City of Mel bourne, in M urray v. Wilson D istilling Go, (2); South Carolina V . United States (3) is referred to without casting any doubt
upon it.
[G r if f it h C.J.—I t has been taken for granted so far that municipal bodies in Australia are entitled to all the rights and exemptions to which they have been held to be entitled in the
United States.
That is a very large assumption.]
The distinction laid down in South Carolina v. United States (3) between functions carried on by municipalities for public pur-
(I) 4 C.L.R., 488, at p, 496.
(2) 213 U.S., 151, at p. 173.
(3) 199 U.S., 437.
407
12 C.L.R.]
OF AUSTRALIA.
poses and those for other purposes is a valid one. The Court
H. C. o r A.
1911.
will not apply the doctrine of State instrumentalities to muni
cipalities unless it is clear that the State has cast upon the
F e d e e a t b d
E n g in b -
municipalities the duty of doing the particular work in question.
D e iv e e s
A N D
F ie e m b n ’s
Starke, in reply.
A sso ciatio n
OF Aus-
Cur. adv. vult.
TBA LA SLA
V.
B e o k e n
The following judgments were read ;—H il l P e o -
p e ie t a e y Co
G r if f it h C.J. The first question submitted by the special
L t d .
case is whether an association of land engine-drivers and firemen
June 27.
is an association that can be registered under sec. 65 of the Com monwealth Conciliation and Arbitration Act. That is a pure question of construction. Our duty is to construe the Act as we find it, and not to substitute what we think would be a more convenient or useful construction.
Act provides that the Court shall have cognizance of, inter alia, “ all industrial disputes which are submitted to the Court by an organization, by plaint, in the prescribed manner.” The plaint in the present case purports to be submitted to the Court under that provision, and unless the case falls within it the Court has not any jurisdiction to deal with it since it is not within any other provision. The question, therefore, goes to the root of the proceedings.
The facts relevant to this question are thus stated :—
“ The claimant is an association of employes which is in fact
registered as an organization under the Act in or in connection
with what is styled the industry of ‘ land engine-driving and
firing.’ Members of the association are employed for the pur
poses of engines in many undertakings of various characters, e.g.,
in mines, in timber yards, in tanneries, in soap and candle works.”
The term “ organization ” means an organization registered pursuant to the Act (sec. 4). Sec. 55, which prescribes the con ditions of registration, is as follows :—
“ 55. (1) Any of the following associations may, on compliance with the prescribed conditions, be registered in the manner pre scribed as an organization :—
408 HIGH COURT
[1911.
H.C. OF A. “ (a) Any association of employers in or in connection with
| 1911.any industry, who have in the aggregate, throughout |
F e d e r a t e dthe six months next preceding the application for
E n g in eregistration, employed on an average taken per month
D r iv e r s
AND
not less than one hundred employes in tha t industry;
F ir e m e n ’s
A sso cia tio n
and
OE A u s
tr a la sia
“ (6) Any association of not less than one hundred employes
V.in or in connection with any industry.”
B r o k e n
Sec. 4 defines the term “ industry ” as follows
-
H il l P r o
p r ie t a r y Co.
L t d .“ ' Industry ’ means business, trade, manufacture, under
taking, calling, service, or employment, on land or
Griffith C.J.water, in which persons are employed for pay, hire,
advantage, or reward, excepting only persons engaged in domestic service, and persons engaged in agri cultural, viticultural, horticultural, or dairying pur
suits.”
.
The words from “ excepting only ” to the end of the definition have been repealed by sec. 2 {d) of the Amending Act of 1910, and the following words substituted “and includes a branch of an indus try and a group of industries.” Tlie registration of the claimant organization was however made in 1908, and its validity depends upon the law as it then stood; but I do not think that the amendment, even if it applied to the present case, would make any difference in the result.
The question for determination, then, is whether the claimants are an association of “ employes in or in connection with any industry ” wdthin the meaning of sec. 55 (1) (5). The answer to the question depends upon the sense in which the term “ any industry ” is there used.
I t is to be noted that the words are not “ persons engaged in any industrial vocation ” or “ engaged in industry,” but “ em ployes in or in connection with any industry.”
I t is, however, contended for the claimants that the term “ any industry,” as used in the second member of sec. 55 (1), means “ industrial vocation,” that is to say, tha t it is sufficient that the associated employes shall be engaged in the same calling or vocation, entirely irrespective of the branches of industry in which their employers are engaged. The respondents for whom
409
12 C.L.R.]
OF AUSTRALIA.
Mr. Starke appeared contend, on the other hand, that the term
H. C. o r A.
1911.
“ industry ” as used in sec. 55 (1) (b) connotes an entirety different
from and outside of the mere personal vocation of the employe,
F b d e b a t e d E n g in e -
and should be construed objectively, as denoting a collective D b iv e e s
F ib e m e n ’s A N D
enterprise in which, to use the words of sec. 7, employers and
employes are associated.
A sso ciatio n or Aus-
I t is conceded that the facts as set out in the special case are stated with a view to raise, and do sufficiently raise, this point.
T B A L A S IA
B b o k en V.
The claimants do not deny that in sec. 55 (l)(a ), which speaks of “ employers in or in connection with any industry ” and, of
H il l P b o -
P E IB T A B Y Co.
L t d .
“ employes in that industry,” the word “ industry ” must bear the
Griffith C.J.
meaning put upon it by the respondents. The respondents, very naturally, ask, why should the same word, twice used in the same section in the same phrase “ in or in connection with any industry,” have a different meaning according as the phrase is used to qualify the term “ employer ” or “ employe ? ”
The claimants’ contention is based on the words “ calling,” “ service ” and “ employment ” in the definition of “ industry.” Each of those words is capable of being used either subjectively or objectively. For instance, the phrase “ A. B. is employed in gardening” may mean either that A. B. is employed by another person to do gardening work or that he occupies himself in gardening. That is to say, the words “ are employed ” in the definition may be used in the passive or in the reflective sense. When a word is capable of two meanings reference must be had to the subject matter and to the context to ascertain the true sense.
The terms to be interpreted are not “ calling,” “ service ” and “ employment ” standing alone, but those terms qualifled by the words “ in which persons are employed for pay,” etc., suggesting something outside of and larger than the employes and in which they may be embraced. When the same words qualify the terms “ business,” “ trade,” “ manufacture” and “ undertaking,” the term so qualified obviously means the collective enterprise in which the employes are engaged, and the word “ employed ” is, equally obviously, used in what in inflected languages is called the passive voice. If ordinary rules of construction are applied, the terms “ calling,” “ service,” “ employment,” and the word
VOL. xir.
[1911.
410 HIGH COURT
H.C. OI" A. “ employed ” used in connection with them, must receive the
| 1911.same construction. On the contrary view there is a sudden change of meaning of the same word in the same sentence, and |
F e d e r a t e d
| E n g in e -D r iv e r sthe phrase “ in which persons are employed,” which as to part of |
AND
the subject means “ in which persons are employed by an
F ir e m e n ’s
A sso cia tio n
employer,” means as to another part “ in which persons engage.”
OE A u s
trala siaRegarding the matter as one of ordinary grammatical construc
V.tion these considerations would, in my opinion, be conclusive.
B r o k e n
But there is much more in the case.
Tlie words “ employment ”
H il l P r o
p r ie t a r y Co
L t d .and “ employed ” are frequently used in the Act, and in every
instance, leaving out the contested one of sec. 55 (1) (b), in the
Griffith C.J.
sense which I have indicated as the right one to be adopted in that instance also. I will refer to a few of them. In the definition of the term “ industrial dispute ” in sec. 4 we find “ Industrial dispute . . . includes (i.) any dispute as to industrial mat ters arising between an employer or an organization of employers on the one part and an organization of employes on the other, and (ii.) any dispute in relation to employment in an industry carried on by or under the control of the Commonwealth or a State, or any public authority constituted under the Common wealth or a State.” Here the employe is regarded as a person employed by an employer in an industry in which both are engaged.
So, in the definition of the term “ industrial matters ” that term “ includes all matters relating to work, pay, wages, reward, hours, privileges, rights, or duties of emplojmrs or employes, or the mode, terms, and conditions of employment or non-employment,” where the concept of association with mutual rights and obligations, is involved.
So, in sec. 7 we find “ Where persons, with a view to being associated as employers and employes respectively in any indus try . . . have entered into an industrial agreement with respect to employment in tha t industry.”
Again, in the provisions of see. 38 relating to the (now declared invalid) common rule, where the Court is required to have regard to the extent to which the industries or the persons affected enter or are likely to enter into competition with one another, the terra “ industry ” is clearly used in the sense which I have indicated to
12 C.L.R.]
OF AUSTRALIA.
denote some relationship in which employers and employes are
C. op A.
associated.
I t is not necessary to pursue the matter further.
The only answer made to this reasoning is the argument ah pedkrated
inconvenienti which is, at best, a weak one, and not infrequently
involves a petitio principii.
I t is said that it would be incon-
and
A I ̂ . . .
F i r e m e n s
venient not to allow persons engaged in a common industrial A sso c ia tio n
vocation, such as carpenters, to form an association or organiza
V.
tion. So far as regards associations there is nothing to prevent
B r o k e n
them from doing so. But so far as regards an organization H i l l
P r o
p r i e t a r y Co.
which is registered for the purposes of litigious proceedings in
L t d ,
the Court, very difierent considerations arise.Griffith
C.J .
In the first place, it might be equally inconvenient that all persons who employ—say—carpenters, should be regarded, con trary to the fact, as carrying on a common enterprise or industry, and so become liable to be involved in one vast litigation. A good illustration is afforded by the present case, in which the award as proposed would extend to employes engaged in industries of all possible kinds, from drivers of locomotives or of winding engines on mines to men in charge of small gas engines used in industries in which the use of engine power is merely sub sidiary, and to employers engaged in equally diverse industries.
In the second place, that is not the scheme of the Act. The unit of aggregation for the purpose of industrial agreements and proceedings in the Court is not the handicraft, but the collective enterprise in which employers and employes are associated. Pro vision is accordingly made for the grouping together of employers engaged in the same industry, as well as of employes similarly engaged. In either case the parties associated presumably have
a common interest in the matters in dispute.
See, for example,
secs. 7 and 55 (1) (a). The distinction between associations of persons who follow the same or similar vocations, on the one hand, and organizations on the other, is emphasized by the defini tion of the term “ association ” in sec. 4, where a trade union, which is usually composed of such persons, is taken as the typical instance, while the “ organization ” that may be registered and may become a litigant, must be such an association as is defined by sec. 55 (1) (b).
The Act as framed has regard to the interests of all parties
412 HIGH COURT
[1911.
H. C. OF A. concerned, employers as well as employes, and not, as seems sometimes to be taken for granted, to the interests of one party F e d e r a t e d The scheme of the Act assumes, on the contrary, that the Drwers employers concerned in an industrial dispute extending beyond AND the limits of one State have a substantial solidarity of interest
iSs*cTA«oN already existing, antecedent to and independent of the dispute.
OF Aus-
J adhere to what I said in Federated Saw M ill &c. Employes
TRALASIA _
.
V. o f Australasia v. James Moore & Son Proprietary L im ited ;
]Br O!KEN tttt.t. Pro-
Woodworkers’ Case (1) on this p o in t:—
p r ie t a r y Co . u dispute must be single in the sense tha t there must be a substantial community of interest amongst the demandants and
Griffith C.J.
amongst those who refuse the demand.”
I t seems to me as impossible to deny tha t the employers and employes concerned in an industrial dispute must be engaged in the same indastry, as to affirm that every person who employs a carpenter or engine-driver is, in any relevant sense, engaged in the industry of carpentry or engine-driving, or to say that there is a community of industrial interest between a farmer who employs an engine-driver to drive a stationary engine in Queens land and a company which employs drivers of locomotive engines in Tasmania.
To these considerations it may be added tha t the regulation of wages or hours of employment for the whole body of persons engaged in the same vocation, but employed in different industrial enterprises, may be fitly regarded as a proper subject for a law to be made by a Parliament having authority to deal with such matters, or by some delegated legislative authority, such as a Wages Board, rather than as a subject for litigation or arbitration. I am aware that attempts have been made to turn tbe Act into a scheme for effecting this purpose. But, as I have said in previous cases, the Arbitration Court has no legislative authority: its functions are to settle actual disputes between actual employers or groups of employers on the one hand and employes on the other, and then only when the dispute extends beyond one State. ISior in my opinion was the Act, any more than the provision in sec. 51 (xxxv.) of the Constitution, designed to facilitate the manufacture of disputes for the purpose of bringing them
(1) 8 C.L.R., 465, at p. 490.
12 C.L.R.] OF AUSTRALIA.
413
•H. C. o r A.
before a federal tribunal.
On the contrary, it was designed,
1911.
however it has been sought to be applied, to promote industrial
F e d e r a t e d E n g ie e -
peace. For these reasons I am of opinion that the opinion tentatively
D r iv e r s
AND
expressed by my brother Isaacs in the Jum hunna Case (1) is F ir e m e n ’s
sound, and that “ an industry contemplated by the Act is
A sso ciatio n
OP A u s
. . . one in which both employers and employes are engaged,trala sia
V. ■
and not merely industry in the abstract sense, or, in other words,
B r o k en
the labour of the employe given in return for the remuneration H il l P r o
p r ie t a r y Co .
received from his employer.”
L t d .
The first question must therefore, in my judgment, be answered in the negative.
Griffith C.J.
The second question is whether the objection is fatal to the claim when the case comes on for hearing. I t is contended for the claimants that the Registrar’s certificate of registration is conclusive. Sec. 57 provides that the certificate shall until proof of cancellation be conclusive evidence of the registration of the organization mentioned in it and that it has complied with the prescribed conditions to entitle it to be registered. The prescribed conditions to be complied with by associations are declared by sec. 55 (2) to be those set forth in Schedule B, which are all of a directory nature setting forth steps to be taken by an association before registration.
In my judgment an association which is not within the cate gories defined in sec. 55 is incapable of being registered. The conditions are conditions to be complied with by an association which is assumed to be capable of being registered. Its existence as such must precede the compliance. That existence is in one sense, no doubt, a condition precedent to registration, but it is not one of the conditions prescribed in Schedule B and referred to in sec. 57. The notion that a certificate by the Registrar, which is a mere ministerial act, should have the effect of validat ing a thing which the law does not allow to be done is prim d facie improbable. The eases of I n re National Debenture and Assets Corporation (2) in the Court of Appeal and Carroll v. Shillinglaw (3) in this Court, emphatically negative it.
(1) 6 C.L.R., 309, at p. 370.
(2) (1891) 2 Ch., 505.
(3) 3 C.L.R., 1099, a tp . 1108.
[1911.
414 HIGH COURT
H. C. OF A.
The second question must therefore be answered in the affirma
1911.tive.
This is sufficient to dispose of the case, since no award can be
F e d e r a t e d E n g in e -
D r iv e r smade upon a claim brought forward by the present claimants.
A N D
But in compliance with the strongly expressed desire of my
F ir e m e n ’s
Asso c ia tio n
brother Higgins I will say a few words on the remaining ques
OF A d s -
tions. I premise by saying that in my opinion the function of the High Court upon a case stated under sec. 31 is judicial and
T R A L A S IA
B r o k e n
H il l P r o not advisory, and is limited to determining questions of law
p r ie t a r y Co .
L t d .
actually arising in the case and necessary for its decision.
1 need not again refer to the opinion of the Judges in
Griffith C.J.
M ’JSfaghten’s Case (1) which I quoted in the Woodworkers Case (2). But although anything further that I have to say is extra judicial there are occasions on which extra-judicial utterances are excusable.
The third question submitted is whether the Board of Water Supply and Sewerage, Sydney, and the Corporation of the Mayor, Aldermen, Councillors and Citizens of the City of Melbourne are subject to the jurisdiction or award of the Arbitration Court. Upon examination of the Statute of New South Wales under which the Sydney W ater Supply and Sewerage Board is con stituted it appears that the Board is in the strictest sense a Department of the State Government. Its receipts go into, and its disbursements are defrayed from the Consolidated Revenue, and all its actions are subject to the control of the Governor in Council. I t was not contended before us tha t the question could be answered in the affirmative with respect to this Board, or that the case was in this respect distinguishable from the Railway Servants’ Case (3).
With regard to the Melbourne Corporation we were invited to hold that a municipal corporation is an instrumentality of the State Government, and is entitled to the same immunity from interference by the federal power as the Government Depart ments of the States. I express no opinion upon the grave and difficult question of how far, if at all, the doctrines which have been laid down in the United States of America on this subject
(1) 10 Cl. & P.,200.
(2) 8 C.L.R., 465, at p. 485.
G) 4 C.L.R., 488.
415
12 C.L.R.]
OF AUSTRALIA.
should be regarded as implicitly adopted by the Constitution of H. C. o f A.
the Commonwealth. But as at present advised I see no serious
____
reason for doubting that, if a municipal corporation chooses to j 'edebatbd
engage in what has lately been called “ municipal trading,” and
ioins the ranks of employers in industries, it is liable to the same
and
federal laws as other employers engaged in the same industries, a s so c ia t io n
This limitation is, indeed, I think, generally accepted in the
United States (see South Carolina v. United States (1) and the
«■
decisions of the Supreme Courts of New York and Pentisylvania
tttt.t. P b o - p b ie t a b y Co .
cited in that case).
L t d .
The fourth question is whether the Court is bound by any rules of evidence when evidence is tendered to show or to nega tive jurisdiction. With much respect, this is not in my opinion a question of law arising in the proceeding within the meaning of sec. 31. Whether the Court has or has not jurisdiction, i.e., whether an industrial dispute actually exists, and if so whether it extends beyond the limits of any one State, are questions of fact. The jurisdiction of the Court depends upon the existence of the facts. If the existence is challenged by proceedings for prohibition in this Court, or possibly on an attempt to enforce the award, the fact must be determined independently, and the opinion of the President of the Court on the point is not binding. In other words, the existence of the facts is a condition of jurisdiction.
Griffith C.J.
If they exist, it is quite immaterial to inquire by what route the President arrived at a right conclusion. If they do not, it is
equally unimportant to inquire how he fell into error. In such
a matter this Court is not a Court of Appeal from him.
But the first duty of every judicial officer is to satisfy himself that he has jurisdiction, if only to avoid putting the parties to unnecessary risk and expense. In this respect a grave responsi bility rests upon the President, whose jurisdiction is limited both by the Constitution and the Act. This responsibility is not diminished by tbe possibility that he may be misled by imperfect or erroneous information. The mode of satisfying himself may vary in different cases. In most cases that come before an ordinary Court of law it is not necessary to make any inquiry
(1) 199 U.S., 437.
416 HIGH COURT
[1911.
H.C. or A on the subject, although in some cases it is. In dealing with the
| 1911.question of jurisdiction the President must exercise his discretion |
F e d e r a t e das to the evidence which he will receive and upon which he will
E n g in e -
D r iv e r sact, and is no more fettered in th a t exercise than in receiving
AND
evidence upon any other matter in his Court. I do not think
F ir e m e n ’s
A sso cia tio n
tha t in this respect the amendment of sec. 25 makes any differ
OF
A u s
tr a la sia
ence.
V.The fifth question is whether the certificate of the Registrar is
B r o k en
H il l P r o
“ to be treated as prim d facie evidence of the fact of the existence
pr ie t a r y Co .
L t d .of a dispute relating to industrial matters, and in connection with
the land engine-driving and firing industry, or of any other and
Griffith C.J.
what facts ? ”
Sec. 21 provides th a t ;—“ A certificate by the Registrar that any dispute relating to indastrial matters is an industrial dispute extending beyond the limits of any one State shall be primd facie evidence that the fact is as stated.”
The fact to be stated is tha t a “ dispute relating to industrial matters is an industrial dispute extending beyond the limits,” &c., not tha t the dispute is in existence, which is a fact to be ascer tained aliundi, and to which the section has no application. But, since the section can only come into play where there is no other evidence of the extension of the dispute, and tlie certificate would probably not be given unless the fact were notorious, the point is not of any practical importance.
The sixth question is whether the Arbitration Court has power to include in the award certain provisions relating to a Board of Reference set out in the draft aw'ard, which are in effect that, if any question should arise between the parties out of the award or respecting any other matter of their industrial relations, it may be referred to a Board of Reference, to be constituted by election in manner approved by the Registrar, and whose decision is to be final.
So far as regards the words “ respecting any other matter,” &c., it is conceded that the Court has no such power. As to the rest I have some difficulty in knowing whether the words “ may be referred ’ are intended to mean “ referred by either party against the wish of the other,” or “ referred by consent of both parties. In the latter view the effect would be a voluntary
12 C.L.R.]
OF AUSTRALIA.
ifeference outside the award altogether, and d e r iv in g its efficiency
H. C. O F A.
1911.
from the ordinary law, and not from the award.
In the former
view the effect would be to enable the Board to supplement the
F e d e r a t e d E n g in e -
iiward by a direction a breach of which might, under secs. 44 and
D r iv e r s
A N D
49, be enforced by fine. I do not think that this would be
F ir e m e n ’s
A sso cia tio n
competent. The proposed delegation does not purport to be made under the
OF A u s
tr a la sia
B r o k en V.
powers conferred by sec. 40a of the Act of 1910, so that it is not
necessary to express any opinion on that section, which, indeed, H il l P ro
p r ie t a r y Co .
<!ould not fitly be expressed except in a concrete case raising the L t d .
validity of some order or direction purporting to be made in
Griffith C.J.
■exercise of the powers conferred by it.
.
Baeton j . Before beginning to di.scuss question 1 it is well to .advert to one of the general rules for the construction of Acts of Parliament, that “ the same words must be prim d facie construed in the same sense in the different parts of the Statute ” (per ■Chitty J. in Spencer v. Metropolitan Board of Works (1). In a . V. Pool' Law Commissioners; I n re HoLhorn Union (2), Lord Denman C.J. said for the Court, “ We disclaim altogether the -assumption of any riglit to assign different meanings to the same words in an Act of Parliament on the ground of a supposed general intention in the Act.”
Of course, the inference from an identity of terms can be re butted by a context showing that in the instance in question the word or phrase is used in a sen.se different from that which it •conveys elsewhere in the Statute. The Principal Act requires in sec. 4 that the meanings there given to a number of expressions shall be attached to them wherever they occur in its provisions, except where otherwi.se clearly intended.” But it is of course necessary in this as in other cases to interpret the interpretations themselves where argument is raised as to the meaning of any ■of them ; and this task has been undertaken by both parties to the special case.
An “ association ” is defined as “ any trade or other union, or Branch of any union, or any association or body composed of or representative of employers or employes, or for furthering or
(1) 22 Ch. D., 142, at p. 149.
(2) 6 A. & E., 56, at p. 68.
418 HIGH COURT
[1911.
H.C OF A.protecting the interests of employei’S or employes.” The distinc
| 1911.tion between trade or other unions, and associations or bodies |
F e d e r a t e drepresenting the interests of employers or employes, is noticeable.
E n g in e -
D eiv ek sI t miust have been present to the mind of Parliament, as a matter
AND
of common knowledge, that a trade union did then, as it does
F ir e m e n ’s
A sso cia tio n
now, often consist of a number of persons grouped together in
o r
A d s -
TRAIASIArespect of their pursuit of some one vocation, such as that of
V.carpenters, tha t of engine-drivers, tha t of shop assistants or that
B r o k en
H il l P r o
of carters, while, on the other hand, the employes in a particular
p r ie t a r y Co.
L t d .concern often did, as they do now, band themselves together, in
a union or otherwise, in i-espect of that concern as an entire and
Barton J.
collective undertaking, such as a dockyard, a foundry, a flour mill, a boot-factory or a colliery. But, as will be seen, it is not every “ association ” that is entitled to become an “ organization ” by registering under the Act, any more than every body of men forming a trade union has such a right. “ Employer ” is next defined as “ any employer in any industry,” and “ employe ” as “ any employe in any industry ” ; and as under sec. 55 (of which more presently) it is among the requisites to lawful registration as an “ organization ” tha t the body seeking to be registered should be an “ association of employers in or in connection with any industry,” or “ an association of . . . employes . . . in or in connection with an industry,” it is convenient to consider now what appears to be meant by an industry in the definitions of “ employer” and “employe.” Applying the rule of construction already mentioned, we have the term “ industry ” prim d facie meaning the same thing in both of them. If it does, it is used in both to denote the enterprise in w^hich the employer invokes the services of the employe, and which is carried on by their co operation. An industry, therefore, is looked on as an entirety, existing only by the relation of employer and employd. If any other meaning of an industry can be found whicli will fit the employe it certainly will not fit the employer. To adopt any other meaning, therefore, would result in applying the word to each in a different sense, which in the absence of a compelling context is against the rule of construction.
Well, is “ industry ” used elsewhere in any different sense ? In the same sec. 4, “ ‘ Industry ’ means business, trade, manufacture
419
12 C.L.R.]
OF AUSTRALIA.
undertaking, calling, service, or employment, on land or water, in which persons are employed for pay, hire, advantage, or reward,
excepting only persons engaged in domestic service, and
persons f e d e r a t e d
engaged in agricultural, viticultural, horticultural, or dairying
pursuits.” It is only because of the employment for pay, &c.,
̂
that either the employer or the employe is in an industry at all. AssociATioif tion. A reciprocal relation is postulated which shows that the
^ _ / . .
B r o k en
“ industry ” in which it exists is some enterprise carried on as a Hill P r o
PBIETAKY Co.
concrete whole by an employer with the aid of his employes.L t d .
The words “calling, service, or employment” are used in the same
Barton J.
sense as “ business, trade, manufacture, undertaking,” to denote the sphere occupied by the exertions of the employer and those whom he employs. They depend for their full meaning, as the earlier words do, on the condition that in them “ persons are employed for pay ” or other recompense. The thing meant is the whole enterprise; the “ service ” in which “ persons are employed for pay; ” and it is that enterprise which an industry is defined to mean. I do not see how it can be urged with reason that in this definition a “ business ” in which a man is employed for pay, and a “ calling ” in which he is so employed, are not equally industries in the sense of industrial concerns, or that they are mere vocations of workmen; or that “ pay,” “ hire,” “ advan tage ” and “ reward ” are not equally used to denote the compen sation which the employed has from the employer.
The exception of “ persons engaged in domestic service ” was much relied on in support of a different construction. But it will be seen that the conception of an industry which is evinced in the definition down to this exception is maintained in the rest of the Act, and to adopt the claimants’ interpretation of the defini tion would lead to the dilemma that we must either do violejice to these other provisions, or, adopting their interpretation, admit that it is in the very definition of an industry that the term is used in a sense to be disregarded in every other part of the Statute in which it is found. I think then that the exception as to domestic service must be looked on as introduced for more abundant caution, possibly to prevent the supposition that one class of persons engaged in paid work was included in a definition
[1911.
420 HIGH COURT
H. C. OF A. intended to denote whole enterprises in their collective sense. I
cannot regard the words as altering or modifying the meaning so F e d e r a t e d plainly conveyed by the prior part of the section. I t is a eom-
E n g in e -
nion experience to find in Acts of Parliament provisions added, by AND way of exception, to sections in the subject m atter of which they
D r i v e r s
^
iSs^cTAnoN
inherent, their proper place being in the category of sub
OP
LT̂ T̂A TRALASIA
stS'iitive provisions.
In this case, for instance, the object desired
V.could better have been attained by a short clause to the effect
l&LL^o- that nothing in the Act should apply to the persons comprised in *’̂ ™Ltd^ ^ ° these two exceptions. I t is plain th a t it was intended to exclude
----- them altogether from tbe operation of the Statute.
In 1910 the
Barton J. exceptions were omitted, and after the word “ reward ” these words were added ; “ And includes a branch of an industry and a group of industries.” As the claimant association was registered
in 1908 this alteration does not affect the present question. The
definition must be read as it stood in 1908.
The meaning of an industry is further indicated by a phrase in the definition of “ industrial dispute,” and as it is referred to by my learned brother Isaacs in his judgment in the Jumhunna Case in a passage highly applicable to the definition section (1) I quote his words :—
“ An industry contemplated by the Act is apparently one in which both employers and employes are engaged, and not merely industry in the abstract sense, or in other words, the labour of the employe given in return for the remuneration received from his employer. As suggessted, not only by the words defining ‘ industry ’ itself, but also by Schedule B, and by such a phrase in the definition of ' industrial dispute" as " employment in indus tries carried on by or under the control of the Commonwealth,’ &c., an ‘ industry ’ as intended by Parliament seems to be a business, &c., in which the employer on his own behalf is engaged as well as the employes in his employment. Turning to the specific definition of ‘ industry,’ it rather appears to mean a business (as merchant), a trade (as cutler), a manufacturer (as a flour miller), undertaking (as a gas company), a calling (as an engineer), or service (as a carrier), or an employment (a general term like ‘ calling —embracing some of the others, and intended
(1)6 C.L.R., 309, at p. 370.
421
12 C.L.R.]
OF AUSTRALIA.
to extend to vocations which might not be comprised in any of
H. C. O F A.
1911.
the rest), all of these expressions so far indicating the occupation
in which the principal, as I may call him, is engaged whether on
F e d e r a t e d
E k g i n e -
land or water. If the occupation so described is one in which
D r iv e b s
F ir e m e n ’s A N D
persons are employed for pay, hire, advantage, or reward, that is,
as employes, then, with the exceptions stated, it is an industry
A sso ciatio n
OF A u s
within the meaning of the Act.”
trala sia
B ro ken V.
This view of the meaning of an industry as defined is fully supported by subsequent provisions.
Sec. 7 deals with the H il l
P r o
p r ie t a r y Co .
refusal or neglect “to offer or accept employment” in cases “where L t d .
persons, with a view to being associated as employers and
Barton J.
employes respectively in any industry, or representatives of such persons, have entered into an industrial agreement with respect to employment in that industry.” The word “ industry ” as used here brings us back to the definition, and elucidates the use of the word in what I have termed its collective sense, as some enterprise or concern in which an employer and a body of employes are mutually engaged, or a number of enterprises of the same kind. Further support appears on consideration of sub-secs. ( / ) and (gr) of sec. 38. For though these provisions have been held invalid, they may be looked at as examples of the sense in w^hich the Statute uses the terms “ industry ” and “ industries.” I refer particularly to the power to direct within what area or under what conditions a common rule is to bind “ the persons engaged in the industry %vhether as employers or employes.” I t seems to me plain beyond any reasonable doubt that the industry of the emplo}^ must be that of the employer also, for they are both to be “ engaged ” in it, whether at the moment they are actively prosecuting it or not. The conclusion is confirmed by study of the authority given by sec. 41 to enter for purposes of inspection “ any building, mine, mine-working, ship, vessel, place, or premises of any hind wherein or in respect of which any industry is carried on,” &c. Carried on by whom ? Obviously by the employer as well as the employes. Carried on where ? Obviously in the place or premises in which the one employs the others; and so once more we come back to the definition clause only to find the sense of this section and that of the definitions identified. Such expressions as those quoted from secs. 7, 38 and
422 HIGH COURT
[1911.
H. C. OB A. 41 could scarcely be used iu relation to a number of sections of 191J.persons performing work of only one subdivision or class in scores
or hundreds of concerns not merely widely separated, but widely
F e d e r a t e d D k iv ebsdiffering in nature as well as in name, carried on by many
E n o in e -
AND
employers between whose businesses no identity, nor any resem
F ir e m e n ’s
A sso oiaito n
blance, nor indeed the slendei’est tie of common interest exists.
OF A u s
tr a la siaHow can a number of employers thus diverse and unlike in their
V .aims combine to any pui’pose for mutual protection in the absence
B r o k e n
H il l P r o
of the common interest which is the very motive of defence ?
p r ie t a r y Co .
How can conciliation or arbitration operate in the full measure
L t d .
contemplated by the Act under such conditions ?
Barton J.
Let us look a t the use of the term in the provision made for registration by sec. 55. On compliance with the prescribed con ditions an association may be registered as an organization, if it be “ an association of employers in or in connection with any in d u s try ’’ or “ an association of . . . employes in or in con
nection w ith any industry .”
(I leave out all words nob material
to the meaning of an “ industry ”).
Whichever of the two meanings contended for be given to the term, it is clear that the “ industry ” affords iu the contemplation of this section—as I think it does throughout the Act—the nexus of interest which associates the employes on the one hand and the employers on the other. I t is with reference to the condi tions of tha t “ industry” that either association, if registered, will contest a claim brought by the other before the Court. If the “ industry ” means the mere calling or vocation of a person, that term does not apply to both parties. If it fits the employes it does not fit the employer. That will appear plainly enough if one attempts to apply it to both in the sense the claimant would give it. But to have a rational meaning in this connection it must be applicable to both. Besides, no context is suggested as requiring a change from the meaning clearly conveyed in the first branch (a) of the section.
“ Industry ’ therefore, as defined in the 4th section, and as used elsewhere in the Act, means a concern or concerns carried on by employers, in which the employes work with the employers for wages or other recompense. I t does not mean the mere vocations of sections of workmen not bound together in respect
423
12 C.L.R.]
OF AUSTRALIA.
of their connection with an enterprise or enterprises of the same
C. or A,
kind, but carrying on, in widely diverse undertakings—for
example, “ in mines, in timberyards, in factories, in soap and fbpeeated
candle works”—one out of the many classes or divisions of work
which are necessary for completely constituting and conducting ^ and ̂
such undertakings.
Such sections of workmen may form associa- a s so c ia t io n
tions for their mutual suj)port and protection, and nothing that
has been said in this case casts a doubt on the legality of such
v.
, . .
B r o k e n
bodies, but they are not associations of emploj^es “ in or in con- hill P ko-
nection with any industry” as the term “ industry” is used in
the Act. A great part of the intention of the Act is that one Barton J.
-----
party may be able to treat with the other—emploj’̂ ers with employed—in respect of the conditions of employment in the concerns which are known as industries (I use the word “ condi tions ” in the large sense in which the Act refers to “ industrial matters ”), or to make agreements with the other party on dis puted questions touching such conditions, or failing agreement, to bring the other party before the Court by plaint for its award on the points in dispute affecting the concern or concerns and the interests of either party therein. To facilitate the attain ment of these ends, associations, whether of employers or of employes, are permitted on certain conditions to register as organizations in connection with the particular concern or con cerns, that is, the industries in which they employ or are employed. But, as has been shown, whatever other conditions may be fulfilled, registration cannot be legally granted to an association unless it exists in or in connection with an industry in the meaning given by the Act to that term. The claimant a.ssociation here is not composed of employes in connection with any industry within the meaning of the Act. Engine-driving and firing are vocations largely used in a vast number of industries. But for the purposes of this Act, vocations though they are, they do not constitute an industry. The claimant association therefore was not entitled to registration, and I answer question 1 in the negative.
In dealing with question 2 regard must be had to sec. 19. The Court is to have cognizance of three kinds of industrial dis putes. As there has not been either a certificate under sub-
424 HIGH COURT
[191U
H. C. OF A.
sec. (rt) or a request under sub-sec. (c), and the alleged dispute
1911.has been submitted by plaint, it comes under sub-sec. (b). But
F e d e r a t e d
in order to make a valid submission by plaint the claimant must
E n g in e -
D r iv e r ’sbe an organization, sub-sec. {b). I take it that must mean a
A N D
legally constituted organization, for organizations as parties to
F ir e m e n ’s
A sso cia tio n
industrial disputes have no existence save under the provisions
OF A u s of this Act.
By see. 4 an “ ‘organization’ means any organization
tr a la sia
V.registered pursuant to this Act, and so far as applicable it also
B r o k en
H il l P r o includes any proclaimed organization to which the Governor-
p r ie t a r y Co.
| General declares this Act to apply.” The claimant association is |
L t d .
not a proclaimed organization.
I t claims a right to sue hy virtue
Barton J.
of its registration.
But if I have answered question 1 rightly,
it is not a legally registrable body. Its claim to become a party by submitting a plaint is based on a registration which was given to it without statutory warrant. As it can only exist as a claimant by virtue of a legal registration, the objection is fatal unless the position is saved, as it is said to be, by the certificate of registration as an organization which the Registrar has issued to the claimant association. That certificate is, by sec. 57, “ until proof of cancellation,” “ conclusive evidence of the registration of the oi'ganization tlierein mentioned and that it has complied with the prescribed conditions to entitle it to be registered.” This point is completely disposed of by the decision of this Court in Carroll v. Shillinglaw (1), and by the case of Baroness Wenloch V. River Dee Co. (2), cited in all the judgments in the first men tioned case. The certificate of the Registrar is conclusive that all things required by the Act to be done by an association claiming to be registered have been duly done. But it has no greater effect. The Statute has not given to an officer of the Court power to validate anything which is void ab initio, such as the registration of an association which was in its very essence incapable of being made an organization by the fact of registra
tion.
■
I therefore answer question 2 in the affirmative. remaining questions are not strictly necessary. The points have become, if I may say so with great respect, academical, and our
(1) 3 C.L.R., 1099.
(2) 38 Ch. D., 534.
425
12 C.L.R.]
OF AUSTRALIA.
answers to them will be extra-judicial.
Moreover, I share the
doubt already expressed whether these are, within the meaning .
,
of sec. 31
(2), questions “ arising in the proceedings,” and whether F e d e b a t e d
this Court in now pronouncing upon them will not take on itself the functions of an adviser. Nevertheless, my learned brother the President has stated that it will be of value to him in the A sso cia tio n
performance of his duties to have the opinions of the Court, and .jb̂ lasia
I therefore venture to give mine, but not as decisions, for, apart
from questions 1 and 2, our answers will not now decide anything. Question 3 has been amended by his Honour so as to include
H iii P b o -
only the two bodies which stand first and second in the list Barton J.
appended to paragraph 5 of the special case.
Mr. Starke, on behalf of these two respondents, contends that they are instrumentalities of the Governments of their respective States, and that as such they can neither be taxed nor regulated by any federal law. As to the first-named body, the Board of Water Supply and Sewerage, reference was made to the New South Wales Act which constitutes it (43 Viet. No. 32), passed in 1880, and to two amending Acts passed respectively in 1888 and
1890. That of 1888 reconstitutes the Board on a somewhat altered basis, but its powers and character in respect of the ques tion to be answered remain practically unaltered. They are purely governmental. All the revenues pass into the Consoli dated Revenue Fund of the State, and the expenditures are issued from that fund. A responsible Minister, the Secretary for Public Works, is charged with the administration of the Act, and subject to the Act the Board is to be deemed a Public Depart ment of the State under Executive control. The Executive may disallow any act of the Board except a contract already entered into. Claims for compensation are to be made against the Minister, who is to be the nominal defendant in actions for things done by the Board. These and other provisions clearly make the Board part of the State’s system of government, and its transactions as clearly cannot be subjected to federal control. As to this respondent, therefore, question 3 must be answered in the negative.
The case of the body incorporated as the Mayor, Aldermen and Citizens of the City of Melbourne imports different considerations.
VOL. XII.
426 HIGH COURT
[1911.
H, C. or A. jurisdiction of the Commonwealth Arbitration Court is ques
tioned by tha t respondent as to any and every part of its func- F e d e b a t e d tions. The claimant association contends th a t the corporation is
d^ veks exempt in any respect, and tha t a t least its operations under
^ AND ̂ the Electric Light and Power Act 1896 (No. 1413) are such as
A sso c ia tio n to entitle the Court to include its employes in an award made in TRA^siA ^ dispute to which it is made a party. The corporation undertakes,
V.in addition to the ordinary functions of local government, the busi-
B s o k e n
.
K tt.t. P r o - ness ot supplying electric light and power to consumers. I t
is
p b ie t a b y Co . £qj- current tha t it supplies, and the payments
fall into
L t d .
the municipal revenue.
In respect of that undertaking it has the
Barton J.
same powers and incurs the same obligations as a companj' ̂ carrying on the same business would have and incur. In argu ment, the question was narrowed down to its bearing upon the corporation’s business of electric supply.
Whether in respect of its strictly governmental functions a municipal corporation is immune from federal interference to the extent tha t the ordinary instrumentalities of State government are immune, or to any extent, is a question which need not be discussed now. For present purposes it may be assumed that Mr. Starke was right in contending that a municipal corporation is a part of the governmental power of the State and therefore immune to the same extent. Is the business of supplying electric current under the conditions stated, when carried on by a local governing body under the authority of State legislation, exempt ? As that question may come before us some day for an enforceable judicial decision, any view expressed now is to be taken as extra judicial and not as final. With that qualification, I am of opinion that such an undertaking so conducted is not entitled to immunity. The rule laid down in D’Emden v. Pedder (1) and other cases is founded on necessity. The functions of government in Common wealth or State are divided into three great branches—the legislative, the executive, and the judicial. I t is of vital import ance to the necessary efficiency of government that it should be protected against invasion or encroachment, for the Constitution must be taken to have intended the duration in unimpaired stability of both Commonwealth and State when it created the
(I) 1 C .L .R , 91.
427
12 C.L.R.]
OF AUSTRALIA.
one and guaranteed the powers which it reserved to the other.
H. C. OF A.
1911.
To allow the governmental functions of either to be impaired by
the other is to undermine either that which was created or that
F edf.b a ted E n g in e -
which was guaranteed. This being the basis on which rests the
D r iv e r s
A N D
doctrine that the instrumentalities of government must not be F ir e m e n ’s
interfered with on the one hand or the other, what is the neces
A sso ciatio n
CF A u s
sity—for every implied power must rest on necessity—for protrala sia
B r o k en V.
tecting the purely business or trading enterprises of a muni
cipality against federal taxation or the operation of any other H il l P ro
p r ie t a r y Co .
admitted federal power ? How can it be said that in such a L t d .
case the functions of government are impaired or its stability
B a r to n J.
threatened ? A Government may take purely trading enterprises upon itself; but its necessary function of governing the people is not weakened a jot if, having lost money by trading in com modities, or by manufacturing goods, it sells its stock or its plant, and retains only the duties cast upon it by its constitution. Nor is its governing authority the less if in respect of its trading or manufacturing enterprises it is compelled like other traders or manufacturers to obey, for instance, a federal regulation of inter state commerce or to pay a federal tax, imposed with constitu tional authority upon the kind of business which it has taken upon itself. Among several American cases cited, that of South Carolina v. United States (1) was the latest bearing on the proposition just stated. I t was there held (2) that the licence taxes charged by the Federal Government upon persons selling liquor are not invalidated by the fact that they are agents of the State, which has itself engaged in th a t business. This decision, which appears to me to be a very sensible one, was recognized as law in 1909 in the case of M urray v. Wilson D istilling Co. (3). The principle on which it proceeds is equally sound when the question is not one of taxation, but such an one as is now remitted to us. If true in its application to the Government of a State, the principle is at least equally clear when the enterprise is that of a local governing body acting under the authority of State legislation. Our own decision in the Railway Servants' Case (4), that a State Railway Service was an instrumentality of State
(1) 199 U.S., 437.(3) 213 U.S., 151.
(2) 199 U.S., 437, at p. 463.
(4) 4 C.L.K., 488.
428 HIGH COURT
[1911.
H.C. OF A. Government, was cited to us. That decision I’ested mainly on the
| 1911.fact tha t the Constitution had specially recognized such a service |
F e d e r a t e das possessing the character claimed for it. We suggested no
E n g in e -
D r iv e r s
doubt at all of the correctness of the decision in the South
AND
Carolina Case (1).
F ir e m e n ’s
A sso cia tio n
My opinion is therefore against the claim of the corporation of
OF A u s
tr a la sia Melbourne to be exempt from the jurisdiction and award of the
V.Court in respect of its undertaking under the Electric Light and
B r o k e n
H il l P r o
Power Act 1896.
p r ie t a r y Co.
L t d .Question 4 asks whether the Court, when at the hearing of an
industrial dispute its jurisdiction is brought into controversy, is
Barton J.
“ bound by any rules of evidence,” or whether it may “ inform its mind in such manner as it thinks just ? ” I t is argued that the answer to this question depends on sec. 25 of the Principal Act, amended in 1910 in immaterial particulars. Is an objection to jurisdiction part of the “ hearing and determination ” of an industrial dispute, or are those words used in the section to describe only ordinary proceedings within j urisdiction ? Probably
the latter is the intention of the Act.
If tha t is the true position,
there is not much ditference in the result.
When a hearing is
allowed to proceed without jurisdiction, prohibition will lie. As prohibition is not sought by way of appeal, the superior Court does not concern itself with the adequacy of the means which the primary tribunal has adopted to test its jurisdiction, or the technical admissibility of the evidence which it has accepted for tha t purpose. If the primary tribunal has heard no evidence upon it, the grant or refusal of prohibition will not depend on tha t fact. But these considerations do not affect the duty, nor should they influence the conduct of the primary tribunal. I t is as wrong to accept jurisdiction without sufficient inquiry as to refuse it with precipitancy. Where the jurisdiction is disputed, adequate and careful inquiry is still the duty of the Court of first instance, just as it may become the duty of the superior Court. On the other hand, where the jurisdiction is not contested by the party defending, very slight inquiry may be adequate, and many cases will to the mind of the tribunal be so plainly within its competence that it will rightly forego inquiry unless the objection is taken, and the objector tenders proof of facts in its support.
(1) 199 U.S., 437.
429
12 C.L.R.]
OF AUSTRALIA.
H. Ci or A.
Question 5 has reference to the construction of sec. 31.
The
1911.
language of that provision does not seem to raise any difficulty.
I t presupposes the existence of a dispute relating to industrial
F e d e r a t e d E ngiste-
matters. Given that fact, the certificate is to be prim d facie
D r iv e b s
F ir e m e n ’s AND
evidence that the dispute extends beyond the limits of a single
State. That is the only fact covered by it. Parliament might
A sso cia tio n
OF A u s
easily have prescribed that the certificate should also evidence the trala sia
B r o k e n V.
existence of a dispute relating to industrial matters, but it has not
seen fit to do so, for there is no context to alter the otherwise H il l P r o
p r ie t a r y Co .
plain meaning of the words used. If, tlieu, question
5 remained a
L t d .
question in the case, I should answer it thus as a t present advised :
Barton J . '
“As to the first branch of the question. No; and as to the remainder of the question, the certificate is prim d facie evidence that the dispute, if any exists, is one that extends beyond the limits of one State ; and it is not evidence of any other fact.”
The final question, numbered 6, places one in a position of some difficulty, as it has become more distinctly hypothetical than number 3, number 4, or number 5. I t relates to some pro visions which it was proposed to insert in a projected award sought by the claimant association. As there is a fatal objection to the competency of the association as a claimant (see answers to questions 1 and 2) that award cannot now be made, for there is no longer, except in name, any “ proceeding before the Court ” (see sec. 31 (2) ). But in deference to the wish of my learned brother the President I will state my impression.
I t is not clear on sec. 4 of the draft award whether recourse to a Board of Reference is intended to be allowed only when both parties agree to it. If it “ may ” be had at the will of either party, the other not consenting, the provision purports to have compulsory force. But, as his Honour tells us that recourse is to be optional, we may take it tha t the appointment of a Board is to take place only with the consent of both parties. But even without such provisions as are suggested, the parties would be at liberty to refer any dispute to persons chosen by themselves, and to give those persons, if they thought fit, the name of a Board of Reference. So far there is only an authority to do that which was already lawful and feasible. There are other terms, but of each of these it is equally true that it might be made a term in
[1911.
430 HIGH COURT
H.C. OF A. such a reference by the parties themselves, though in such case
| 1911.the Registrar’s approval of the manner of choosing referees, his |
F e d e b a t e dcertificate of the proper constitution of the tribunal, his decision
E n g in e -
in case of an equal division among its members, would all depend A N Don his willingness to undertake the duties mentioned. If, how
D b iv e r s
F ir e m e n ’s
A sso c ia tio n
ever, sec. 4 of the draft award means tha t any of the matters it
OF A u s tr a la siacontains are conditions to be complied with by the parties in
V.order to be entitled to refer to a Board or Committee any question
B r o k e n
H il l P r o -
or dispute arising betwmen them out of the award, or respecting
p r ie t a r y Co .
L t d .any other m atter of their industrial relations, then I think there
is no power to insert such conditions in the making of an award.
Barton 0.
The authority to make an award does not appear to me to imply a power to impose on the parties such limitations of their liberty to agree among themselves to act in a manner not forbidden by any law, after their rights and duties in respect of the dispute brought before the Court have been defined by the award. The learned President expressly disclaims any intention in the draft ing of this part of the document to act under the provisions of sec. 40a , and it is clear tha t the terms used are not such as to point to any such intention. Some faint suggestion was made that sec. 40 a was ultra vires, but the question of its validity was not argued, and indeed it cannot arise on an occasion when no attem pt is made to apply it.
On the whole, it seems to me tha t the proper answer to ques tion 6 is, “ Yes, if it be clear tha t none of the provisions referred to are to be conditions of the right of the parties to refer to per sons chosen by themselves any questions arising out of the award or affecting their industrial relations. If otherwise. No.” The question as stated does not call for the expression of any opinion on the effect of the provisions in the former event.
O ’C o n n o r J. The first matter on which the learned President has asked the opinion of the Court is whether the claimants can be lawfully registered as an organization under sec. 55 of the Commomvealth Conciliation and Arbitration Act 1904. The point raised involves the principle of grouping employes for the purposes of the Act, and if the objection taken by the respon dents is good, not only must their claim be dismissed, but the
431
12 C.L.R.]
OF AUSTRALIA.
H. C. o r A.
validity of all organizations whose members are associated on 1911.
the same basis is brought into question. In the answering of
F e d e e a t b d E n g in e -
this question I regret that I cannot take the same view as my
learned colleagues who have preceded me.
D b iv e b s
AND
The claimant organization consists of persons following the calling or employment of land engine-drivers and firemen, in
F ir e m e n ’s
A sso ciatio n
OF A u s
cluding also those engaged in the incidental occupation of cleaners
trala sia
V.
and greasers. The engines on which the members are employed
B r o k e n
are worked in mines, timber yards, tanneries, soap and candle H il l P r o
p r ie t a r y Co .
works—indeed in every variety of business or undertaking in
L t d .
which steam power is used. In whatever business or under
O’Connor J.
taking a steam engine is used, the work of those who drive and attend to it is substantially the same. Having thus their indus trial interests in common, the members of the claimant organiza tion associated themselves together, and sought and obtained registration under the Act of 1904. The respondents object to the registration as being illegal and of no effect, alleging that the claimants are not an association of employes “ in or in con nection with an ‘industry,’” within the meaning of sec. .55(1)(6). The contention is that the definition of “ industry ” in sec. 4 de scribes the bu.siness, undertaking, trade, calling, or employment of the employer only, that registration of employes is permitted only to associations of employes whose employers are engaged in the same class of production, manufacture, construction, or under taking, and that a group of employes, associated as in the present case merely by reason of their following the same trade or call ing, irrespective of the branch of industrial activity to which their labour is applied, cannot be registered as an organization. Upon this objection the claimants naturally ask in what way can persons of their vocation, engaged in driving and firing engines in many difterent branches of industrial enterprise, be associated so as to entitle them to be registered as an organiza tion—for some meaning must be given to the provisions of sec. 55 which enables employes to be registered as an organization.
The respondents an.swer that the section, properly construed, enables the members of the claimant organization to be registered, if associated according to the branch of industrial enterprise in which their employers are using their services. For instance.
[1911.
448 HIGH COURT
H.C. OF A. than “ organization.” Association ” means practically any
| 1911.association, great or small, of employers or employes, with or |
without regard to any particular industries.
F e d e r a t e d E n g in e -
D r iv e r s
An “ organization ” is confined to a registered or proclaimed
ANDorganization. That compels us to turn to Part V. which relates
F ir e m e n ’s
to organizations.
There we find them divided into “ registered ”
Asso cia tio n
OF A u s (secs. 55 to 61) and “ proclaimed” (secs. 62 to 64). The regis
trala sia
V.trable organizations are those associations which are considered
B r o k en
H il l P r o - by the legislature as always sufficiently large and representative
e r ie t a s y Co .
| to invoke the application of the Act. Associations not attaining |
L t d .
to tha t standard may, if special circumstances render it desir
Isaacs J.
able, obtain the President’s recommendation, and then the Governor-General proclaims them as organizations, so that the standing exceptional nature of some industries, and of employers and employes in other industries, is thus provided for. Special individual instances were also provided for in the Act of 1904 by the second case in the definition of “ industrial dispute.” Thus no possible requirement of registration or curial interposition went unregarded. This particular association could have been, and still can be, created an organization by proclamation on the President’s recommendation.
The true meaning, then, of sec. 55 is not, I think, diflBcult to grasp. First, it dealt with employers’ associations by allowing any association of employers in any industry to be registered, provided that during the preceding six months the employers associated employed on an average per month not less than one hundred employes in that industry.
The next paragraph gave the corresponding right to the employes by permitting that same hundred employes—or more— to register also as an organization, and so protect the right of the workers in the industry, as against the employers.
In other words, where the employers were allowed to register, so were the employes. If the employers had only 99 employes they could not possibly register as an organization; and it would be strange if, on the wording of the section, drawing no distinction between the industries referred to, those 99 employes could, by combining with another employb outside tha t industry, and hav ing nothing whatever to do with it, register themselves as an
449
12 C.L.R,]
OF AUSTRALIA.
organization for the purpose of raising an industrial dispute in the
H. C; OF A.
1911.
employers’ industry within the meaning of the Act, although the
same employers in precisely the same circumstances could not.
F e d e r a t e d E n g in e -
Such unequal treatment is opposed to the reciprocal aspect of the
D r iv e r s
whole Statute. I feel no doubt tha t the industry referred to in
AND
F ir e m e n ’s
sec. 55 is the same in both cases, and intended to be the connect
A sso ciatio n
OP A u s
ing link betwe>en the two sets of co-operators, employers and
tr a la sia
employed. Sec. 60
V.
(li) bears out this construction very forcibly
B r o k en
by placing both employers and employes on the same footing as H il l P r o
p r ie t a r y Co .
to cancellation for insufficiency of numbers.
L t d .
If, then, there were no special interpretation in sec. 40 of the word “ industry,” there could hardlj^ be any doubt that “industry,” whatever occupation it included, at all events meant the industrial operation contributed to both by the capital of the employer and the labour of the employes, united together in the work of sup plying the needs of society. But some special interpretation was essential to make clear which of tlie possible industries—or indus trial operations so jointly contributed to and existing in the com munity—were included in the combined expression “ industry.” To answer that que.stion the definition of industry was framed to embrace practically all such operations except those expressly reserved. Whatever business, or trade, or manufacture, or under taking, or calling, or service, or employment a man or set of men engage in, to supply the public demands, is to be included as “ an industry,” provided in it persons are employed for pay, hire, advantage or reward. In other words, every industrial operation whatever in which the public are interested, and which by reason of disputes between those whose united efforts as employers and employes may be retarded or stopped, is an industry in the sense intended by Parliament. The special definition was not to dis criminate between employers’ industries on the one hand and employes’ industries on the other, leaving the public out of con sideration, but it was to embrace all industries in which both could be said to participate in meeting the demands of the people of the Commonwealth. “ Calling,” and “ service,” and “ employ ment ” are terms which could, of course, be used to define either, and the primary meaning of words is a good starting point. But the question always is as to the meaning of the words as used in
Isaacs J.
450 HIGH COURT
[1911.
H. C. OF A.
the connection in which they are found, and their primary mean
1911.ing is only one factor in determining their real signification. It
F e d e r a t e d
was said by Lord Rom illy, speaking for tlie Privy Council in the
E n g in e -
D riv erscase of The “ Lion ” (1):—“ The meaning of particular words in
AND
an Act of Parliament, to use the words of Abbott C.J. in Rex v.
F ir e m e n ’s
A sso cia tio n
Hall (2), ‘ is to be found not so much in a strict etymological
OF Aus-
TRAXASIA propriety of language, nor even in popular use, as in the subject
V.or occasion on which they are used.’ ” Here they are found
B r o k en
linked with a phrase from which they cannot be separated, and
H il l P ro p r ie t a r y Co .
| which imparts a specific character to them. The calling, or ser |
L t d .
vice, or employment must be one “ in which persons are employed
Fsaacs J.
for pay,” tha t is, in which there are paid employes, so as to be a calling, service, or employment in which the possibility of a dis pute can exist. In other words, the calling, &c., must be one which embraces the two sets of contributors—employers and employed. The disjointed meaning relied on by the claimants is consequently not reasonably open.
Reliance was placed also on the exception as to domestic service. But tha t is not, in my opinion, in any case sufficient to destroy what is otherwise plain. Not only may the reference have been merely used to indicate a negative, so as to allay fears, or prevent a possible argument as to constitutionality, but it is clear to my mind that, quite consistently with the interpretation I have given, some domestic servants would, but for the excep tion, be included in the arbitration provisions of the Act. They may possibly be so under the present form of the legislation. A very large number of persons are engaged as principals in the occupation of supplying public requirements, such as boarding house keepers, and their industrial operations—that is, their “ calling”—indispensably involves the employment of a vast number of domestic servants. Similarly with hotels. These are quite possible, and indeed probable, instances that may have occurred to the mind of the legislature, of businesses or under takings or callings tha t in their operations directly connect the public, the employers, and the employes; and as that is so, the separate signification of “ industry, as applying only to the employe, derives no support from the exception of domestic
(1) L.R. 2 P.C., 525, at p. 530.
(2) 1 B. & C., 136.
12 C.L.R.]
OF AUSTRALIA.
service. Therefore, while feeling the deepest respect for the
H. C. OF A.
contrary view, and regretting the loss of time and trouble to the
1911.
parties in the present case, I am personally unable to experience
F e d e r a t e d E n g in e -
the least hesitation in answering the first question in the negative.
D riv ebs
AND
As to the second question, the objection is in my opinion fatal to the case.
F ir e m e n ’s
Parliament has permitted the Court to liave
A sso cia tio n
OF A u s
cognizance, not of every industrial di.spute, but only of such as
tralasia
are brought before it in one of three prescribed ways—namely,
V.
B r o k en
(a) by Registrar’s certificate, (b) by submission by an organizaH il l P r o -
f r ie t a r y Co.
tion, and (c) by a State authority. The second was the only L t d .
mode attempted ; and if there was no legal organization to sub
Isaacs J.
mit the dispute, it necessarily follows the Court can have no
cognizance of the matter.
Sec. 57 does not get over the difficulty. I t makes the Registrar’s certificate conclusive evidence of two facts in connec tion with the association, namely, registration and compliance with the prescribed conditions preliminary to registration. ‘ But that leaves untouched the question of whether the association prior to registration was one of the description required by sec. 55. That is at the root of the matter, and if the foundation goes, the edifice cannot stand.
The third question is of much importance, and though not strictly necessary to be answered in this case, having regard to the answers already given, yet it has been argued, and for the guidance of the learned President, and indeed of all concerned, the opinion of the Court may advantageously be expressed.
As to the Sydney Board of Water Supply and Sewerage, the matter seems clear enough.
The position it holds under the Statutes (No. 32 of 1880 and No. 28 of 1888) is one which, for all practical purposes, identifies it with the central Government, tha t is the Crown; and the only purposes of the Act ,are strictly governmental.
That Board, therefore, would not in my opinion be subject to the jurisdiction of the Commonwealth Arbitration Court.
The Melbourne City Council stands in a different position. It is primarily constituted for the purposes of municipal govern ment, and in respect of its functions of legislation and adminis tration may be said to be a subordinate local agent for the
452 HIGH COURT
[1911.
H. C. OF A. purposes of government. W ith this aspect we have no direct
concern here; these functions are not under consideration except
Fede^ ed argued that whatever other powers or
E n g in e -
authorities were granted to a municipal authority became ipso
D riv ers
^
AND
facto governmental powers and authorities, and he relied on some
F ir e m e n ’s
A sso ciatio nAmerican authorities.
As I read those authorities they look the
OP Aus- other way, and tell against his argument.
I need not refer
TRALASIA I T * ̂ I
1
V. further to the American cases cited during the argument, but
ftuL Pr̂ - ' '̂'ould add to them a useful case, Lloyd v. City o f New York (1);
f r ie t a r y Co . o i t e d approvingly in O' Donnell v. City o f Sycrause (2). But
dealing with the question on reason and the recognized principles
Isaacs J.of British law and precedent, it is difficult to see how the conten
tion will hold. The mere fact tha t a corporation is constituted a regulating agent for certain purposes, and for those purposes is entrusted with governmental powers, cannot alter the nature of added capacities which are inherently different. There is a manifest distinction between governing and trading. Regulating, in the character of lawgiver, the industrial operations of others, cannot be classed as one with personally engaging in such operations in competition with others. The two things may simultaneously reside in the same structure, but they are not therefore related.
Local government is true governm ent; it is as much a sub ordinate branch of the Sovereign legislative power to make a by-law or declare a rate as the order of a local justice of the peace is a subordinate branch of the Sovereign judicial power. For the purpose of non-interference with their governmental functions, a municipal corporation might fairly claim to stand as Blaclcburn J. described it in Mersey Docks v. Cameron (3) in consimili casu with Crown servants; and to rely on the position, to borrow Lord Ciunworth’s p>hrase in the same case (4) as “ extending . . . . the shield of the Crown to what might more fitly be described as the public government of the country.” But, on the other hand, corporate trading is none the less trading, and is on a wholly different plane. The difference is ineradicable. S ir Lloyd Kenyon pointed this out in Moodalay v. Morton (5),
(1) 5 N.Y., 369.(4) 11 H.L.C., 443, at p. 508.
(2) 112 Am. St. Rep., 558, at p, 562.(5) 1 Bro. C.C., 469, at p. 471.
(3) 11 H.L.C., 443, a t p. 464.
12 C.L.R.] OF AUSTRALIA.
453
where he said of the East India Company :—“ They have rights
H. C. O F A.
as a sovereign ̂ power, they have also duties as individuals;
1911.
. . . . As a private company, they have entered into a
F e d e r a t e d E n g in e -
private contract, to which they must he liable.”
D rivers
AND
Apart from the doctrine of exemption of the Sovereign and of foreign independent Sovereigns and their rej^-esentatives from
F ir e m e n ’s
A ssociation
OF A u s
jurisdiction. The “ Charkieh” (1) contains useful reasoning and
tralasia
authorities in this connection. And that doctrine is the only
V.
B r o k en
possible ground on w’̂ hich tlie municipality could claim exclusion H il l P ro
p r ie t a r y Co.
from the jurisdiction of the Arbitration Court in respect of its L t d .
commercial operations. My opinion, stated not as a final decision,
Isaacs J.
but as a strong impression after argument and careful considera tion, is that municipalities engaging in what is simply trading for profit, just like other traders, must, in Loi'd Stowell’s words in The “ Swift ” (2), quoted on the page above referred to, “ traffick on the common principles tha t other traders trafiick.” And the destination of the proceeds does not affect the character of the operation from which they are derived. I t would, of course, be monstrously unfair to the general body of traders if the com peting municipalities were not so obliged, though this is not in itself a sufficient legal reason. I offer no opinion whatever as to whether, under our Constitution, a State, by first exercising sovereign legislative power, authorizes itself to embark, and does embark, in ordinary industrial enterprises, would be pro tanto
subject to this branch of federal jurisdiction.
‘
The fourth question cannot be answered by a simple “ yes ” or “ no.” To do so would leave the matter open to some misunder standing. The Act, by sec. 25, frees the Court and the learned President from all rules of evidence in order to decide any ques tion whatever which comes before the tribunal for decision under the provisions of the Act. But the same Act makes the existence of a dispute an essential preliminary to any jurisdiction at all. Consequently, before sec. 25 can apply, we have to assume the existence of a dispute; and its application must therefore be limited to facts, other than the existence of the dispute.
The jurisdiction of the Court to deal with the matter before it depends on the actual existence of the dispute, and not on what
(1) L.R. 4 A. & E., 69, at p. 99.
(2) 1 Dods, 320, at p. 339.
454 HIGH COURT
[1911.
H. C. o r A.
material its existence or non-existence is made to appear to the
1911.Court itself. The Court may, in order to ascertain the facts as to
its existence, proceed, without being open to legal challenge on
F e d e b a t e d E n g in e -
D r iv e r sthat account, either by rigid adherence to the ordinary rules of
AND
evidence, or by accepting any information it thinks proper or
F ir e m e n ’s
convenient in the circumstances.
W hat it has to do at the outset
A sso cia tio n
OP A u s
tr a la sia
is to satisfy its mind tha t it is not overstepping the bounds which
V.Parliament has laid down for it.
B r o k en
H il l P ro -
The learned President is then, so far as the ascertainment of
p r ie t a r y Co .
L t d .the dispute is concerned, a t least so long as the Act remains in
its present form, in precisely the same situation as every other
Isaacs J.
Judge whose jurisdiction depends upon the existence of some extraneous circumstance. W hat is he to do ? Tlie situation is described by Coleridge J. in Bunhury v; Fuller (1) thus:— “ Suppose a Judge with jurisdiction limited to a particular hundred, and a matter is brought before him as having arisen within it, but the party charged contends that it arose in another hundred, this is clearly a collateral matter independent of the m erits; and on its being presented, the Judge must not immedi ately forbear to proceed, but must inquire into its truth or false hood, and for the time decide it, and either proceed or not proceed with the principal subject-matter according as he finds on that po in t; but this decision must be open to question, and if he has improperly either forborne or proceeded on the main matter in consequence of an error, on this the Court of Queen’s Bench will issue its mandamus or prohibition to correct his mistake.” My answer then is, that the obligation to inquire as to the existence of the dispute arises as an incident to the functions of determining the issues before the Court, and for the purpose of seeing that every essential condition of jurisdiction laid down by the law is observed. As the presence or absence of tha t condition, if con tested, must eventually depend upon ascertainment in the way provided by the rules of evidence applicable to such an inquiry, that is, the rules of common law so far as no statutory provision exists, and according to statutory methods so far as any are pro vided, I can only suggest tha t the safer way would be to deal with this preliminary inquiry according to the rules which would
(1) 9 Ex., I l l , at p. 140.
12 C.L.R.] OF AUSTRALIA.
455
have to be followed by any Court which might subsequently R-
have to reconsider it.
As to the fifth question, the certificate is not evidence of the federated
existence of an industrial dispute as the law regards it, but is
primd facie evidence that the relations between the parties,
and
assuming them to amount to an industrial dispute, extend beyond A sso cia tio n
the limits of one State.
T R A L A S IA
With regard to the sixth question; Apart from express provision on the subject, the implied power to refer any j j i l l P r o
matter to a Board or any other person or persons stood as L t d .
has already been expressed by mo in the Bootmakers’ Case
Isaacs J . ;
(1). Since that judgment was pronounced, the legislature has, in my opinion, no longer left the matter to implication so far as a Board of Reference is concerned. I say nothing about purely ministerial references to a Court officer for the purpose of working out details of directions. But with regard to a Board of Reference Parliament has, as it appears to me, stated precisely what it requires, and the power, whatever it may be, to refer matters to a Board must now be sought in sec. 40 (a) of the Act 1904-1910.
The proposed clause was not intended to be made in exercise of the powers given by that section, but in any view it must, I think, in several particulars unnecessary now to state, be con sidered as conferring too much power on the Board. , I would only add that nothing was suggested which would cast doubt on the validity of sec. 40 (a). .
H ig g in s J. My answer to the first question is “ Yes.” The Act does not refuse to recognize, as an organization for its.purposes, great unions such as the Amalgamated Society of Engineers, having members who get employment in all kind of employers’ undertakings throughout the world. Nor does the Act refuse the boon of arbitration in cases where the employers, in dispute with employes of a certain craft, do not happen to be carrying on under takings of the same character.
The answer depends on the meaning of the Act: there is no difiiculty under the Constitution. Parliament could, indeed, at
(.3) 11 C.L.R., 1, a t p. 62.
456 HIGH COURT
[1911,
C. OP A. any time put its intention beyond all doubt; but we have to deal
1911.with the Act as it stands. I am not surprised th a t the words
F e d e r a t e d
used have created a difference o£ ,opinion in this Court, for the
E n g in e -
D r iv e r sdraftsman has had occasion to use the word “ industry” much
AND
more frequently in the sense of the undertaking of the employer
F ir e m e n ’s
A sso ciatio n
than in tlie sense of the calling or occupation of the employe,
OE A u s
trala siaThe circumstances in each case dealt with in the sections happened
V.to require the former sense; and the difficulty arises from the
B r o k en
effort of the framers of the Act to make the one word “ industry ”
P r o - p b ie t a b y Co. carry the burden of two very distinct meanings.
H il l
-----
The word “ industry,” in relation to employers in sec. 55 (1) (a), and elsewhere, I shall assume for the present to mean their industry in the sense of business or undertaking. But what is the meaning of the words in sec. 55 (1)(&), “ any association of not less than one hundred employes in or in connexion with any industry ”? I t is said tha t this means tha t the association must be confined to men, often of very diverse callings, engaged in some kind of (employer’s) undertaking. That is to say, the engine- drivers of a big undertaking, such as the Broken Hill Proprietary, must, if they want the benefit of the Act, join an association in which miners, truckers, timbermen, wheelwrights, smelters, plumbers, carpenters, &c., ai’e members, and cannot join with other engine-drivers, doing the same kind of work in timber yards or mills. Being few in number, the engine-drivers would be lost in the crowd of members of other occupations, and worid probably find their interests ignoi’ed. “ Birds of a feather flock together”; but it is not to be so with unions under this Act, according to the argument of the respondents. I t is not engine-drivers only who will suffer if the respondents succeed, but societies such as tlie Amalgamated Society of Engineers, the Federated Carters and Drivers, the Federated Wood Workers, the Shop Assistants’ Federation, the Sewerage and General Labourers’ Association, the Amalgamated Society of Carpenters and Joiners, the Australasian Society of Engineers, the Federated Clerks’ Union—all already registered under the Act. In Great Britain such unions are well recognized ; and also such unions as the Associated Blacksmiths, tlie United Patternmakers, &c.; but it is urged the federal Act is to be treated as excluding them. There is certainly no indica-
Higgins J.
12 C.L.R.] OF AUSTRALIA.
457
tion in the Act of any intention to cut so violently into trade
H. C. OF A.
union practice, to interfere with the freedom of voluntary associa
1911.
tion for the betterment of industrial conditions. According to
F e d e r a t e d E n g in e -
sec. 2 one object of the Act is “ to facilitate and encourage the
D r iv e r s
organization of representative bodies of employers and of employes
AND
F ir e m e n ’s
*
...................and to permit representative bodies of employers
A sso ciatio n
OF A u s
and of employes to be declared organizations for the purposes of
trala sia
this Act.”
V.
P rim d facie, this includes any kind of representative
B r o k en
body of employes, includes “ craft unions,” and the burden of H il l P r o
p r ie t a r y Co.
proof lies on those who assert tha t there is any exclusion of craft L t d .
unions under the other provisions of the Act.
Higgins J.
I concur with my learned brother O’Connor in his opinion that under the word “ industry,” in the interpretation section, are included not only undertakings (of the employers) but also call ings or occupations (of the employes). We ought to give the words “ trade,” “ calling,” “ service,” “ employment,” their full meaning unless there is something in the context which prevents us; and we ought to assume that Parliament had, at the least, such knowledge as is common property as to the modes of unionism. I t is quite true th a t we should correctly speak of a master cutler’s “ trad e ; ” but we also speak of a journeyman cutler’s “ trade.” We may speak of an engineer’s “ calling ” ; but equally of a journeyman engineer’s “ calling.” We speak, it is true, of a postal .service, or a carrying service; but much more frequently of a labourer’s service, a waiter’s service. We may say that a man has employment as a builder; but it is, a t the very least, equally appropriate to speak of a clerk’s employment. The rest of the words in the clause are also appropriate, for in the “trade” of journeyman plumber, in the “ calling” of moulder, in the “ service ” of waiter or labourer, in the “ employment ” of clerk, “ persons are employed for pay.” Then the exception comes which proves the ru le ; “ excepting only persons engaged in domestic service,” &c. There is no force in this exception unless Parliament meant to exclude from “ service ” domestic service; the exception implies that under the earlier part of the clause ordinary domestic servants, whose employers may have no busi ness undertakings of any kind, could be treated as constituting an industry.
y o u XII.
458 HIGH COURT
[1911.
H.C. OF A. I take it that the Act meant industrial workers on both sides
| 1911. | to associate themselves as they thought b e s t; subject, however, |
F e d e b a t e dto the power of the Registrar to refuse to register an association
E n g in e -
D b iv e e sif there is already an organization to which members might con
AND
veniently belong (sec. 59); and subject to the Court’s power to
F ib e m e n ’s
A sso cia tio n
cancel the registration “ for any reasons,” as well as for certain
OE A u s- specified reasons (sec. 60). The draftsman had in his mind the
TBALASIA
V.wide definition of “ association ” in sec. 4—“ any trade or other
B b o k e n
H il l P b o - union . . . . or any association or body composed of or
p b ie t a b y Co .
representative of employers or employes, or for furthering or protecting the interests of employers or employes.” He had to
L t d .
Higgins J.
limit the class of associations to he registered so as to exclude, for instance, an association so vague as the Friends of Humanity, or the Workers of the World, and so as to confine registration to associations connected with some definite industrial operations. Moreover, I do not think th a t sufficient attention has been given during the argument to the words “ i n o r i n co n n ec tio n w ith ” any industry. Even assuming tha t “ industry ” is to have the narrow meaning of an employer’s undertaking only, so that it refers only to some undertaking of one employer, or common to several employers, it does not follow that this association cannot be registered. An association of miners is “ in ” the mining industry ; but an association of engine-drivers, or of fitters, is “ in connection with ” the mining industry, as well as “ in con nection with ” other industries. The object of the words was, to my mind, obviously to provide th a t the association must have some definite connection with some concrete industrial operations in which are to be found the relations of employer and employed. If the contrary view is correct, an engine-driver who happens to get employment for a short time in a pickle factory cannot be in the same organization as an engine-driver in a jam factory, though they are doing precisely similar work.
Perhaps I ought to add tliat, in my opinion, the words added by amendment in the Act of 1910—“ and includes a branch of an industry ”—do not affect the question. If “ industry ” meant only an employer’s business, it means so still. The amendment would probably allow the engine-drivers who happen to he for a time in flour mills to form a separate organization of their own;
12 C.L.R.] OF AUSTRALIA.
459
but it would not allow the engine-drivers who happen to be in a
H. C. OF A.
soap factory to join in an organization with engine-drivers who
1911.
are temporarily next door in a candle factory.
F e d e r a t e d
E n g in e -
As to the second question; Assuming tha t sec. 55 does not allow of the registration of this association, I concur with my
D r iv e e s
AND
F ir e m e n ’s
learned brothers, but with doubt, in the opinion that the objec
A sso ciatio n
OP A u s
tion is fatal, even when tlie case comes on for hearing. The
tr a la sia
Court has no cognizance of the dispute unless an “organization”
V.
B r o k en
submit it, under sec. 19 (6); and although the association has H il l P r o
pr ie t a r y Co.
been in fact registered in this case, it is an association which— L t d .
if the respondents’ contention is right—is incapable of being an
Higgine J.
organization. At the same time it must be admitted that the result is very unfair to the claimant union. This union simply followed the practice of the Registrar, who admitted many other such craft unions. I t was registered more than three years ago; and none of the respondents applied to the Registrar, or to the Arbitration Court, although they could have so applied, to have the registration cancelled. On the faith of the registration the union has spent much money and great labour with the view of keeping the men working and of having the disputes settled by the Court; and now, when an award is ready, it is told that the Registrar should not have registered. However, my answer to question two must be “ Yes.”
The questions which are put actually arose in the course of the concrete case before me, and are, in my opinion, questions of law (see sec. 31); and as such they ought, I think, to be answered by the High Court judicially. The consequences of the answers will be for me, as President of the Court of Arbitration, to determine —subject, of course, to the Constitution and the Act, and to such controlling power as is vested in the High Court.
The third question compels the consideration of all that difficult doctrine, propounded by Marshall C.J. in the United States, as to the implied exemption of federal and of State “ instrumentalities.” In a former case I have ventured to express my scepticism as to the soundness of the doctrine; for I think that in M ’Gulloch v. Maryland (1) the principle of necessary implication has been extended far beyond logical limits, a t all events beyond the limits
(1) 4 Wheat., 316.
460 HIGH COURT
[1911.
H . C. o r A.
set by British law {B a x te r v. C o m m iss io n e rs o f T a x a t io n {N .S . W.)
1911. ̂ ^]iole doctrine of exemption of “instrumentalities” rests
Federated on inference ; and the inference becomes more and more difficult as
Engine- |̂ }̂ g activities of the State increase. How can one say that busi- AND ness undertakings of the State were meant to be exempted by a AssocrrxmN Constitution framed in 1789, at a time when no one dreamt of such OF A us- undertakings ? In the S o u th C a r o l in a Case (2) the Supreme
X^RIVERS
TRA JLA SIA ^ 1 1 T
i 1
V, Court of the United States seems at last to have tound the P^- necessity for some limitation of the doctrine; and probably some p b ie t a e y Co . ijjjg q£ demarcation as was found in that case will have to
L t d .
.
be adopted in Australia.
But, although this question was sub-
Higr^ns J.
mitted by me to the Court, I admit that it would be better not to answer it at present—not to answer it unless we can answer it fully. It would be well, first, to give an opportunity to the States and to the Commonwealth to be heard; and to have the facts more precisely set forth as to the undertakings of the several respondents atfected. I am all the more inclined to this course, as the answer to the question may involve the validity of certain amendments made by the Act of 1910 in the interpreta tion section.
My answer to the fourth question is, “ No.” The questions. Is there a dispute ? and Does it extend beyond one State ? have been raised in nearly every case that has come before me in the Arbi tration Court, and from the first. I quite recognize that the existence of the dispute, and its extension, are conditions pre cedent to the exercise of the jurisdiction of the Court, and I have liitherto spent much time and care in taking full evidence from all sides on the issue. But the position becomes different, now that I understand from my learned brothers that my findings on the issue must be regarded as irrelevant on prohibition or man damus proceedings, and that even the evidence taken by me can not be used except by consent. I shall, of course, regard it as my duty not to proceed with an arbitration if it is clear from the first that the conditions as to jurisdiction are not fulfilled; and also to demand some evidence showing a p r i m d f a c ie case of jurisdiction. But, as to such evidence as I take, I am of the opinion that sec. 25 applies, and that by virtue of the amend-
(1) 4 C .L.R ., 1087, at p. 1164.
(2) 199 U.S., 437.
12 C.L.R.] OF AUSTRALIA.
461
ment, if not of the original section, I am not bound by any rules
H. C. o r A.
1911.
of evidence. My answer to the fifth question is, “ No.” The Act seems to have
F e d e r a t e d E n g in e -
been drawn under the idea that the existence of a dispute was a D r iv e r s
F ir e m e n ’s AND
matter easy to be proved; but the fact of its extension beyond one
State would need some inquiry, and might be left to the
A sso cia tio n
OE A u s
Registrar, for a privid facie finding. In my opinion, the certifi
tr a la sia
B r o k en V.
cate of the Registrar under sec. 21 is merely evidence that,
assuming a dispute to exist as to industrial matters, it extends H il l P r o
p r ie t a r y Co,
beyond one State. '
L t d .
The sixth question, unfortunately, has not been argued as it deserves to be argued—probably because the claimants rely on sec. 40 ( a ). In the Bootmakers’ Case (1) I inserted certain pro visions as to a Board of Reference. The provision which was attacked by the respondents in tha t case was a provision exempt ing certain employers from complying witli the provisions of my award as to the contents of apprenticeship deeds. My award dealt with boys employed and to be employed, the dispute being as to “ the regulation of boy labour,” without any qualification. No one urged before me that existing apprentices were not to be dealt with, that their grossly unfair position was not to be rectified; but it was held by the Full Court that I had no power to deal with existing apprentices, as they were not within the ambit of the dispute if properly construed. I t was also held, however, that even assuming that I had power to deal with exist ing apprentices, I had no power to delegate power to a Board of Reference to “ annul ” an existing indenture. Now, what I pro vided was that full adult wages were to be paid to all except (inter alios) those lads who were indentured as I prescribed, or who were indentured in a manner approved by a Board of Reference. I did not create, or “appoint” any Board of Reference, but I stated what kind of Board of Reference, voluntarily appointed by the parties, could give the approval on which exemption would follow. I t is obvious that the Board of Refer ence was not given power to “ annul ” any indenture, but was enabled to exempt indentures from annulment—if “ annulment ” is the proper term. I t was a provision purely in the interests of
Higgins J.
(1) 11 C .L .R , 1.
462 HIGH COURT
[1911.
H. C. o r A.
the employers, allowing a dispensation in certain cases from the
1911.general rule. I t was as if I gave a direction tha t all lads who
passed a certain examination at a university were to be excepted
F e d e r a t e d D r iv e r s
E n g in efrom the rule. In such a case, there would obviously be no dele
A N D
gation of discretion; the direction would be mine, and the dis
F ir e m e n ’s
cretion exercised would be mine.
Under the Act, the Court of
A sso cia tio n
OF A u s
tr a la siaArbitration has power (sec. 38 (b)) “ to make any order or award
V .or give any direction in pursuance of the hearing or determina
B r o k e n
H il l P r o
tion ; ” and (sec. 38 (u ) ) “ generally to give all such directions
p r ie t a r y Co .
L t d .and do all such things as it deems necessary or expedient in the
premises.”
The direction contained in my proposed clause is that
Griffith C.J.
any decision of a question arising out o f the award, if given by a Board of Reference, voluntarily constituted by both parties, should be binding on the parties by virtue of my award ; as if a com mittee, empowered to settle the conditions of racing, were to pre scribe that the decision of the judges is to be final. The truth is that the duty of the Court “ to settle a dispute ” resembles far more the duty of a Court of Chancery to “ settle a scheme ” for the conduct of a charity, than the duty of a Court of com mon law in an action for debt or damages. The Court of Arbitration does not award payment for violation of existing or past rights, but prescribes a system of relationship for the future. I t has never been suggested, so far as I know, that a Court of Chancery, in committing to a board of trustees of a charity the function of selecting boys for a school, or inmates for a benevolent institution, is thereby delegating its powers. The doubt which occasioned question 6 was occasioned by the language of the majority of the Court in the Bootmalcers’ Case (1) as to delegation of authority to a Board of Reference. I did not think it was delegation ; but, if it is—and the Full Court held it to be a delegation—how can Parliament, when creating a tribunal in pursuance of its power under the Constitution, enable the tribunal to delegate any authority to another body ? As I have said, this question has not been argued. My duty is to express my opinion in the afiirmative as to question 6, except that the words “ or respecting any other matter of their industrial rela tions must be excised. I inserted these words in the proposed
(1) 1] C .L.R., 1, a t pp. 32, 46.
463
12 C.L.R.]
OF AUSTRALIA.
award—words which are often, and wisely, put in agreements and
H. C. O P A.
1911.
State awards—merely in the hope of eliciting the opinion of the
Full Court on the whole subject, and of finding the precise limits
F e d e k a t e d
E n g in e -
of my power. I do not think that the express power to “ appoint ” a Board for
D m v e h s
F ir e m e n ’s A N D
all Australia, now contained in sec. 40a, operates to withdraw
A sso cia tio n O P Aos-
such powers as were already contained in the original Act, under T R A L A S IA
B r o k e n V.
provisions which have not been repealed.
H il l P r o
p r ie t a r y Co .
Questions answered accordingly.
L t d .
Higgins J-
Solicitors, for the respondents, Derham & Derham.
B. L.
Brian
FoU
Brian
RodweBACo
MelbounK
PtyLtdy
Melbourne
VR 333
City Council
S8LGRA328
[HIGH COURT OF AUSTRALIA.]
RICHARDSON
A p p e l l a n t ;
D e f e n d a n t ,
AND
AUSTIN .
. Respondent,
I n fo r m a n t ,
ON APPEAL FROM THE SUPREME COURT OF
VICTORIA.
, , ,
H. C. O P A.
M arkeUSale o f marketable goods in places other than markets—“ Places f mean
ing of—Public places— Shop̂ '̂ ̂meaning of—Disturbance of market— Markets
____
Act 1890 (Viet.), (No.
1115), aec. 25.
Me l b o u r n e ,
Sec. 25 of the Marietta Act 1890 (Viet.) provides that the commissioners of
14»
markets “ may fix the places within such town or portion of a town for the
'
holding of markets, and may there erect and build or cause to be erected Griffith O.J.,
or built market houses with shambles stalls and other convenient buildings.
O’Connor ̂JJ.
Key Legal Topics
Areas of Law
-
Employment Law
-
Administrative Law
-
Statutory Interpretation
Legal Concepts
-
Jurisdiction
-
Standing
-
Statutory Construction
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0
0