Federated Saw Mill &c Employes of Australasia v James Moore & Son Pty Ltd

[1909] HCA 43

8 CLR 465

THE FEDERATED SAW MILL, TIMBER

YARD, AND GENERAL WOODWORKERS

EMPLOYES' ASSOCIATION OF AUS- TRALASIA

JAMES MOORE AND SONS PROPRIETARY

RESPONDENTS.

LIMITED AND OTHERS Commonwealth Court of Conciliation and Arbitration-Jurisdiction-Industria

dispute extending beyond the limits of one State-Demand by employes-Neces- sity for preconcert among employers-Demand for higher wages in one State than in others-Industry subdivided into branches-Interference with State law-Award of State Arbitration Court - Industrial agreement under State law June 8, 9, 10, - -Determination of Wages Board-Adding parties-Commonwealth of Aus- tralia Constitution Act (63 &64 Vict. c. 12), Cl. v.; The Constitution, secs. 51 (xxxv.), 99, 109-Commonwealth Conciliation and Arbitration Act 1904 (No. 13 of 1904), secs. 4, 19, 30, 38 (p).

Assuming the existence of all other circumstances which constitute an industrial dispute extending beyond the limits of one State, including a demand by combined and organized employés on their employers, want of preconcert on the part of the employers in refusing the demand does not either under sec. 51 (xxxv.) of the Constitution or under the Commonwealth Conciliation and Arbitration Act 1904 deprive the Commonwealth Court of Conciliation and Arbitration of jurisdiction to make an award on a plaint brought before the Court by the organization of employés.

So held by O'Connor, Isaac8 and Higgins JJ. By Griffith C.J.-The absence of such preconcert may be evidence to negative the existence of a dispute within the meaning of sec. 51 (xxxv.) of the Consti- tution, but, on the assumption mentioned, the mere want of such preconcert on the part of the employera does not, under the Commonwealth Conciliation and Arbitration Act 1904, deprive the Commonwealth Court of such jurisdiction.

8 CLR 466

Where part of the demand made by an organization of employés is that wages in one State shall be higher than those in the other States the Common- wealth Court of Conciliation and Arbitration may, nevertheless, make an enforceable award in respect of the employés in that State.

If an industry has several different and well recognized branches, the Com- monwealth Court of Conciliation and Arbitration may make an award enforce. able in all the States to which the particular dispute extends as to wages and conditions of labour in that industry, notwithstanding that, at the time the dispute is brought before the Court,

(1) In one or more States no member of the organization of employés

which is bringing the plaint is actually employed in one of the branches of the industry, or (2) In one of the States one of the branches of the industry is not (3) One of the employers, who carries on all the branches in one State

and only one branch in another State, is not in the former State employing any members of the organization in one of the branches, (4) An employer carrying on all the branches in one State is not in one

branch employing any members of the organization. So held by Isaacs and Higgins JJ. So held, also, by Griffith C.J., with the provisoes that the branches of the industry are such that a question which affects one branch aftects the others in every State concerned, SO that the industrial dispute is really a single dis- pute, and, as to (3), that the businesses carried on by the employer in both

The Commonwealth Court of Conciliation and Arbitration has power to make an enforceable award inconsistent with-(1) an award of a State Arbitra- tion Court, (2) an industrial agreement made and registered pursuant to a State Statute, or (3) an industrial agreement enforceable under State law but (Isaacs and Higgins JJ. dissenting) it has no power to make an enforce- able award which is inconsistent with a determination of a Wages Board empowered by a State Statute to fix a minimum rate of wages.

A company which, after the filing of a plaint, purchased the business of one of the respondents to the plaint, held to be rightly added as a party under sec. 38 (p) of the Commonwealth Conciliation and Arbitration Act 1904.

Requisites of an industrial dispute extending beyond the limits of one State

CASE stated by the President of the Commonwealth Court of Conciliation and Arbitration.

8 CLR 467

On the hearing of the plaint in the above Court, wherein the Federated Saw Mill, Timber Yard, and General Woodworkers Employés Association of Australasia were claimants, and James FEDERATED Moore &Sons Proprietary Ltd., Millar's Karri &Jarrah Co. (1902) Ltd., E. A. Robinson, Benjamin J. Fenton, Globe Timber Mills Co., W. H. Burford &Sons Ltd., Lion Timber Mills, James JAMES Campbell &Sons Ltd., Bunning Bros. Ltd., Davis Bros. &Burgess Ltd., Saxton &Binns Ltd., Goodlet &Smith Ltd., and the Queens- land Pine Co. Ltd., were respondents, the President stated the following case for the opinion of the High Court :-----

" A plaint has been submitted to the Commonwealth Court of Conciliation and Arbitration in the prescribed manner (section 19 (b)), by the claimant organization. The claimants hold certificate from the Registrar under section 22 (c). Inasmuch as the defences raised divers objections to the jurisdiction of the Court, as well as objections based on State awards, agreements, determination of Wages Boards, &., I decided to hear all the evidence of both sides bearing on these objections before hearing evidence bearing on the wages and conditions of labour demanded. In the course of the proceedings, the following questions-which, in my opinion, are questions of law-have arisen; and I submit them for the opinion of the High Court :-

" 1. The claimants are an association of employés, registered as an organization under section 55, and said to have about 6,500 members in all of the States of the Commonwealth (except, perhaps, Tasmania). The dispute is with employers carrying on business in the several States respectively, and employing members of the organization. With one exception, which immaterial for the purpose of the present question, the respondents in each State have no business or other connection with the respondents in the other States, and have refused the demands of the organization independently and without preconcert of any kind with the employers in the other States.

Does the dispute extend beyond the limits of any one State-

(a) Within the meaning of section 51 (xxxv.) of the Consti- (b) Within the meaning of section 4 of the Commonwealth

Conciliation and Arbitration Act 1904 ?

8 CLR 468

" 2. Under the schedule of wages submitted by the claimants to the respondents, and rejected, an additional 15 per cent. is claimed for the employés in Western Australia, in these words- West Australia--15 per cent. to be added on above rates for extra cost of living.'

Has this Court power to make any enforceable award SO far as regards the Western Australian employés

"3. The two respondents who belong to Western Australia, have bush mills for cutting up logs, and have also timber yards in towns, of the usual character. Several of the trades or occupa- tions referred to in the schedule of wages-such as the trade of glaziers-are not carried on at the bush mills; and no member of the claimant organization is employed by either of the said respondents in their timber yards; but one of the said respondents has a timber yard in Melbourne and employs there members of the organization.

The respondents who belong to South Australia have no such bush mills, but they have timber yards and several of the trades or occupations referred to in the schedule of wages-such as the occupation of fellers or of spotters-are not carried on at timber yards.

The schedule of wages demanded applies both to employés in bush mills and to employés in timber yards.

One of the New South Wales respondents has a bush mill as well as a timber yard one of the Victorian respondents has a bush mill but no timber yard; the others have timber yards.

The Queensland respondents have both timber yards and bush mills.

Has this Court power to make any enforceable award with respect to wages and conditions of labour in Western Australia as to those trades or occupations in which no member of the claimant organization is employed

Has the Court power to make any enforceable award with respect to wages and conditions of labour in South Australia as to those trades and occupations which are not carried on by any of the South Australian respondents

"4. The exception referred to in para. 1 is that of the Millar's Karri and Jarrah Co. (1902) Ltd. This company carries on bush

8 CLR 469

mills and timber yards in Western Australia; but it has not been shown that any member of the claimant organization is employed by the company in its timber yards. The company has in FEDERATED Melbourne a timber yard to which it sends timber the product of its bush mills in Western Australia; the Melbourne business is under the control of the local board in Western Australia and the company employs in its said timber yard members of the PROPRIETARY organization. At the filing of the plaint, the company carried on in Queensland bush mills and a timber yard, but it has not been shown that it sends there timber of the product of its bush mills in Western Australia, or that any member of the claimant organ- ization is employed in the bush mills in Queensland.

In the case of the said company does the dispute extend beyond the limits of any one State-

(a) Within the meaning of section 51 (xxxv.) of the Con- (b) Within the meaning of section 4 of the Act (c) Has this Court power to make an award applicable to

this company, and to what extent ? "5. There is an award of the late New South Wales Arbitration Court, made on 12th May 1908, coming into operation on 16th June 1908, and expiring on 16th June 1911, and made between the New South Wales branch of the claimant organization and certain of the New South Wales respondents (inter alios).

Has this Court power to make any enforceable award incon- sistent with the New South Wales award, either to operate immediately or to operate on the expiration of the New South Wales award ?

5A. There is a determination of the Woodworkers' Board (duly made under the provisions of the Factories and Shops Acts of Victoria) dated 20th February 1908, and duly published in the Victorian Government Gazette of 3rd March 1908-which deter- mines certain conditions of employment and the lowest prices and rates of wages to be paid in respect of certain of the persons or classes of persons employed in Melbourne by (amongst others) the respondents, James Moore &Sons Proprietary Ltd. and Millar's Karri and Jarrah Timber Co. (1902) Ltd. which are described in the plaint-

8 CLR 470

Has this Court power to make any enforceable award incon- sistent with the said determination

"6. There is an industrial agreement registered under the Western Australian Industrial Conciliation and Arbitration Act 1902, and made between the Western Australian branch of the

MOORE claimant organization and Millar's Karri and Jarrah Co. (1902)

Ltd. The agreement is dated 7th February 1908, and it expires on 30th June 1910.

Has this Court power to make any enforceable award incon- sistent with the agreement, either to operate immediately or to operate on the expiration of the agreement ?

7. There is an industrial agreement-not registered - -made between the Sorters' and Stackers' Union and (amongst others) James Moore &Sons Prop. Ltd., one of the Victorian respond- ents. The agreement is dated 11th May 1908, and it expires on one month's notice, but not before 11th May 1909. Some of the members of the claimant organization are members of the said union.

Has this Court power to make any enforceable award incon- sistent with the agreement, either to operate immediately or to operate on the expiration of the agreement

"8. The plaint in this case was filed on 23rd October 1908. One of the respondents was Millar's Karri and Jarrah Co. (1902) Ltd., a company which carries on business in Western Australia, in Victoria, and in Queensland. Subsequently, on 26th Novem- ber 1908, this company granted an option to purchase its Queens- land business as a going concern. On 17th February 1909 the option was exercised, and the business bought by the Queensland Pine Co. Ltd., and possession was given on 1st March 1909, and the business was carried on under the same manager without cessation and without change of employés. The fact of the sale having been disclosed early in the proceedings, counsel for the claimant asked that the Queensland Pine Co. Ltd. should be added as a respondent. I made an order to that effect, but expressly without prejudice, in order that the Queensland Pine Co. Ltd. might appear and contest, if it saw fit, the right to make it a party. The company accordingly applied to have its name struck out.

8 CLR 471

Has this Court power to order that the Queensland Pine Co. H. C. Ltd. be added as a party (section 38 (p) ) ?

" For the purposes of these questions reference may be made if necessary to the plaint and to the award, determination and agreements and to the option and other documents relating to the AUSTRALASIA sale of the Queensland business in this case mentioned."

It is not necessary for the purposes of this report to set out the plaint, the award, the determination or the agreements above referred to.

The Commonwealth and the State of New South Wales obtained from the High Court leave to intervene.

Arthur, for the claimants. As to the first question, as long as a common demand is made in more than one State by the parties on one side which is refused by the parties on the other side, SO that there is a real dispute, the absence of combination on the side on whom the demand is made does not negative the possi- bility of the dispute being one that does not extend beyond the limits of one State. Combination is not necessary on either side, although some common demand must be made. He referred to Jumbunna Coal Mine No Liability v. Victorian Coal Miners' Association 1; Federated Amalgamated Government Railway and Tramway Service Association v. New South Wales Railway Traffic Employés Association 2. As to the second question, the fact that the claimants demand for Western Australian employés a rate of payment different from that for employés in other parts of the Commonwealth makes it none the less one demand and one dispute. The demand as to Western Australia is one demand in the whole dispute, in which all the employers and all the employés are participants. There being a dispute extending beyond one State, in order to settle that dispute fairly the Court must award higher wages in those parts of the Com- monwealth where the cost of living is higher. This involves no discrimination between States: The King v. Barger 3. Sec. 99

16 C.L.R., 309, at pp. 313, 332, 24 C.L.R., 488, at p. 497. 341, 350, 371. 36 C.L.R., 41, at pp. 78, 109. 8 CLR 472

of the Constitution only applies to regulations of trade, commerce

or revenue. No preference is given, nor is any intended, by awarding higher wages in one part of the Commonwealth. As to the third question, there being one dispute, there are persons who are members of the claimant association employed in timber

MOORE yards, and that gives the Court power to make an award as to

timber yards wherever they are. Once there is a dispute extend- ing beyond one State, the boundaries of the States may be disregarded. Then, if within the whole area of the dispute there are members of the association employed in timber yards, an award can be made in respect of all timber yards in the area. As to South Australia, where there are no bush mills, the demand is as to wages in respect of certain classes of operatives, and if some of those operatives are employed by any of the respondents in South Australia, an award can be made in respect of that class of operatives there. [He referred to Coastal District Committee Amalgamated Society of Engineers Industrial Asso- ciation of Workers v. Millar's Karri and Jarrah Co. 1; In re Pitman 2.] As to the fourth question, the business carried on by Millar's Karri and Jarrah Co. (1902) Ltd. in Western Australia and in Melbourne is one business, and the Court can make an award in respect of all employés of the company: R. v. Commonwealth Court of Conciliation and Arbitration; Ex parte Broken Hill Proprietary Co. Ltd. 3. The facts stated do not prevent the dispute from being one extending beyond one State. As to the fifth question the Commonwealth Court of Conciliation and Arbitration has power to make any award it pleases whether or not it is inconsistent with an award under a State law. Under sec. 51 (xxxv.) of the Constitution there is power to make an award in the case of a dispute extending beyond the limits of one State. If that circum- stance exists, the power is absolute. Under the New South Wales Industrial Arbitration Act 1901, an award is binding on the parties and is the law of the land. See secs. 35, 37, 39. If that award is inconsistent with an award of the Common- wealth Court, the latter, which is a law of the Commonwealth,

1(1902) 4 W.A.A.R., 171. 25 Arb. Rep. (N.S.W.), 298. 38 C.L.R., 419. 8 CLR 473

prevails under sec. 109 of the Constitution, and that is made H. plain by sec. 30 of the Commonwealth Conciliation and Arbi- tration Act 1904, sec. 30; Quick and Garran's Constitution of the Australian Commonwealth, p. 938; Gulf, Colorado and Santa Fé Railway Co. v. Hefley 1; Master Retailers' Associa- tion of N.S.W. v. Shop Assistants Union of N.S.W. 2; Morgan's Steamship Co. v. Louisiana Board of Health 3; PROPRIETARY Harrison Moore's Commonwealth of Australia, 1st ed., p. 172.

[ISAACS J. referred to Attorney-General for Ontario v. Attorney- General for Dominion of Canada 4 Wheeler's Laws of Canada, p. 1054.

HIGGINS J. referred to Prentice and Egan's Commerce Clauses, p. 183.]

The same arguments apply to question 5A, and also to the sixth question. Although there may be an agreement between employers and their employés, that does not prevent an industrial dispute, i.e. an industrial disturbance, existing, and an award may be made by the Commonwealth Court disregarding the agreement. As to the seventh question, if a registered agreement does not stand in the way of an award by the Commonwealth Court, neither does an agreement that is not registered. [He referred to Jumbunna Coal Mine, No Liability v. Victorian Coal Miners' Association 5; Amalgamated Suw Mills Em- ployés Union of Workers v. Millar's Karri and Jarruh Co. 6; Western Australian Amalgamated Society of Railway Employés Union of Workers v. Commissioner of Railways for Western Australia 7.]

[ISAACS J. referred to secs. 26, 92, 93 of the Industrial Con- ciliation and Arbitration Act 1902 (W.A.).

O'CONNOR J. referred to Australasian Institute of Marine Engineers v. Howard Smith Co. Ltd. 8.]

As to the eighth question, there is nothing to prevent a company which has come into existence after the demand was made from being added as a party.

1158 U.S., 98, at p. 104. 22 C.L.R., 94, at p. 107. 3118 U.S., 455, at p. 464. 4(1896) A.C., 348. 56 C.L.R., 309, at p. 374. 65 W.A.A. R., 72, at p. 81. 73 C.L.R., 66, at p. 72. 81 C.A.R., 44, at p. 46. 8 CLR 474

Mitchell K.C., (with him Harrison Moore), for all the respon- dents except Millar's Karri and Jarrah Co. (1902) Ltd. and Benjamin J. Fenton. The first and fifth questions depend upon what is the power of the Commonwealth Parliament under sec. 51 (xxxv.) of the Constitution. That power is limited in two

MOORE ways: it must be exercised for the prevention and settlement of

disputes, and the disputes must extend beyond the limits of one State. These limitations must be interpreted in the same broad way as the power itself: Kansas v. Colorado 1. If the views contended for by the claimants are right, the limitation that the dispute must extend beyond the limits of one State might for all practical purposes have been omitted. For if in one State there were an award of a Court of the State, either party dissatisfied with it might, by bringing in a party in another State, have an appeal to the Commonwealth Court. There must be some point at which it can be said that a dispute is not one extending beyond the limits of one State, and that point is reached when in a dispute in an industry not in its nature Inter-State, on one side or the other, the parties, either employers or employés, are absolutely independent and not acting in concert in the dispute. There is no other logical halting place which will not in reality turn this provision in the Constitution from one for allaying existing disputes to one for provoking disputes. The intention was that the Commonwealth Parliament should have power to deal with disputes with which the States alone could not deal, and not to secure uniformity of wages and conditions of employment through- out the Commonwealth. The meaning of "a dispute extending beyond the limits of any one State" is the same whether it is the prevention or the settlement of it which is being considered. So that a dispute with which the Commonwealth Parliament can deal is one of which it can be predicated before it comes into existence that it will be a dispute extending beyond the limits of one State Jumbunna Coal Mines, No Liability v. Victorian Coal Miners' Association 2. According to the view put forward for the claimants, every dispute is one that can extend beyond the limits of one State. A demand on one side and a refusal to comply with it on the other do not constitute a dispute.

1206 U.S., 46, at p. 91. 26 C.L.R., 309, at p. 333. 8 CLR 475

[HIGGINS J.-In Jumbunna Coal Mines, No Liability v. Vic- torian Coal Mines Association 1, the words seem to imply the contrary: << An industrial dispute exists where a considerable number of employés engaged in some branch of industry make common cause in demanding from or refusing to their employers (whether one or more) some change in the conditions of employ- ment which is denied to them or asked of them."

GRIFFITH C.J.-There must at least be a persistence in the demand.]

In order that a dispute may be within sec. 51 (xxxv.) of the Constitution, it must be a dispute between employers and employés as to what those employers shall pay those employés and as to what other employers will pay their employés. [He referred to Australian Workers' Union v. Pastoralists' Federal Council

of Australia 2.] As to the fifth, sixth and seventh questions and question 5A, the power conferred by sec. 51 (xxxv.) is to settle disputes in a way not contrary to, but in accordance with, the laws applicable to the subject matter of the dispute if the Commonwealth has power to deal with that subject matter, then in accordance with the law of the Commonwealth, but if the Commonwealth has no such power, then in must be in accordance with the law of the States. So that where by the law of a State a person is bound to obey an award or to perform a con- tract, the Commonwealth Court cannot make an award incon- sistent with that law, and it is not competent for the parties to that award or contract to engage in an industrial dispute in respect to the subject matter of such award or contract.

[ISAACS J. referred to Clemson v. Hubbard 3, as to the meaning of " dispute."]

It was not intended by sec. 51 (xxxv.) of the Constitution to empower the Commonwealth Parliament to take away from the State Courts the right to give damages for breach of contract. The award referred to in the fifth question was made in respect of a dispute which was admittedly not an Inter-State dispute, but was wholly confined to New South Wales. That dispute, which was settled by a Court having exclusive jurisdiction to

16 C.L.R., 309, at p. 332. 2I.C.A.R., 62, at p. 78. 31 Ex. D., 179. 8 CLR 476

deal with it, cannot be said to be open for the purpose of giving the Commonwealth Court jurisdiction. As to such a dispute the laws of the Commonwealth and the States are not in conflict within the meaning of sec. 109 of the Constitution, for they are

AUSTRALASIA in respect of different subject matters: D'Emden v. Pedder 1.

MOORE As to the third question, there is no power to make an award in

respect of employés in timber yards in Western Australia because there is no dispute as to them in Western Australia. Assuming that there are two employers in the same industry in different States whose businesses are distinct and who are not acting in concert, and assuming further that each employer employs a number of classes of employés, and that there is an organization of the employés in all those classes except that the employés in some of those classes who are employed by one of the employers do not belong to the organization, and are quite content with their wages and conditions of employment, then a demand by the organization for higher wages for the employés of all the classes is not the same dispute extending beyond the limits of one State. A dispute between an employer and an organization of employés as to whether the employer should pay higher wages to his employés who are quite contented with what they are getting is not an industrial dispute. A dispute with an employer must be a dispute as to his business and not as to that of some- one else in another State. [He referred to Merchant Service Guild of Australasia v. Commonwealth Steamship Owners' Asso- ciation 2.] As to the second question, sec. 51 (xxxv.) of the Constitution does not involve a power to decide rights as between employers. A demand for one rate of wages in one State and for a different rate in another is not one dispute, at any rate where the parties on both sides are not organized. The power does not extend to giving one State a preference over another See sec. 99 of the Constitution.

[ISAACS J. referred to Quick and Garran's Constitution of the Australian Commonwealth, p. 515.]

As to the sixth question, although industrial awards were well known at the time the Commonwealth Conciliation and Arbitra- tion Act 1904 was passed, there is no mention in sec. 30 of

11 C.L.R., 91, at pp. 110, 111. 21 C.A.R., 4, at p. 18. 8 CLR 477

industrial agreements, and they are not inconsistent with the Act, one of whose main objects was to bring parties into agreement. As to the eighth question, sec. 38 (p) of the Commonwealth Con- ciliation and Arbitration Act 1904 does not authorize the Court to add a party who was not a party to the industrial dispute.

Irvine K.C. (with him Wantiss), for Millar's Karri and Jarrah Co. (1902) Ltd. As to the third question, when the Constitution was enacted in 1900 the words 'conciliation and arbitration for the prevention and settlement of disputes" had a fairly definite and legal meaning. The word "arbitration" can only be applied to the settlement of disputes, though conciliation may apply to both prevention and settlement. Conciliation is in its very nature non-compulsory. Arbitration for the settlement of disputes involves the existence of definite parties and definite issues relat- ing to the conditions of employment of the parties who are employed: Collins v. Collins 1. The words would involve the recognition of conflicting bodies who might be parties to disputes. The settlement of a trade dispute is not necessarily limited to persons in the actual employment of the employers at the time. But although it may involve a conflicting body of disputants, there must be definite issues which relate to the conditions of employment by the disputing employers of the members of the disputing association. A general disturbance was in one sense intended to be affected by sec. 51 (xxxv.) of the Constitution, but suppose there are disturbances over several States, the power given is limited to appointing arbitrators whose duty it is to ascertain what are the disputes and between whom, and then to settle the disputes between the persons who are engaged in them. Assuming there is a union of employés over several States which has a dispute with employers in several States, but that a number of men who are qualified to be members of it are not members and therefore make no demand, and that those who are not members are perfectly satisfied with their employment, can the Commonwealth Parliament invest a Court with power not only to settle the dispute between the union and the employers, but also to deal with the conditions of labour of those who are not dissatis-

128 L.J. Ch., 184, at p. 186. 8 CLR 478

fied ? [He referred to Curran v. Treleaven 1.] The words "trade

dispute" were first used in the Conspiracy and Protection of Property Act 1875 (38 &amp;39 Vict. c. 86), sec. 3, as meaning what was afterwards called an "industrial dispute." Under that section it was held that a strike for the purpose of raising the wages of men

MOORE employed by those against whom the demand is made would be

PROPRIETARY a legal combination in furtherance of a trade dispute, but that if

the strike was for the purpose of compelling another employer to pay higher wages to his operatives, it would not be legalized: J. Lyons &amp;Sons v. Wilkins 2. [He also referred to 5 Geo. IV. c. 96; Councils of Conciliation Act 1867 (30 &amp;31 Vict. c. 105): Arbitration (Masters and Workmen) Act 1872 (35 &amp;36 Viet. c. 46); Conciliation Act 1896 (59 &amp;60 Vict. c. 30).]

[ISAACS J. referred to Gosney v. Bristol &amp;. Trade and Provi- dent Society 3.]

In the legislation until the Act of 1875 the words "trade dispute" had the limited meaning of a dispute as to legal rights under existing contracts. But in the Act of 1875 and the subse- quent legislation it had the wider meaning which it has in the Constitution. In New Zealand the Industrial Conciliation and Arbitration Act 1894 provided for the settlement of existing industrial disputes, but there was no provision for anything like the common rule. See secs. 42 and 43 of that Act. The power of the Commonwealth Parliament is limited to the creation of a Court whose powers are limited by the ordinary accepted meaning of the words "arbitration for the settlement of disputes." Whatever the form or character of the arbitration may be the power is still limited to arbitration. The power given by sec. 51 (xxxv.) of the Constitution cannot be said to have repealed exist- ing laws of the States relating not only to arbitration for the settle- ment of disputes but also to the conditions under which work is to be carried on or persons are to be employed. The power is not to make laws for the settlement of disputes, but to make laws for arbitration for the settlement of disputes. There cannot be an industrial dispute which is based on a claim which is a breach of the law. An industrial dispute must be something different from an ordinary dispute which can be settled in the Courts of

1(1891) 2 Q.B., 545. 2(1896) 1 Ch., 811. 3(1909) 1 K.B., 901. 8 CLR 479

law. The federal power was not intended to be a power to create a Court which could decide disputes which could be settled in the Courts of law. So that a Court SO created cannot make an award which is inconsistent with an award enforceable in the Courts of a State as a law of that State. Industrial disputes arise not out of contractual relations, but out of the general relation of employers and employés which it is reasonable to PROPRIETARY expect will continue. [He referred to Von Schultz-Gaevernitz on Social Peace, A Study of Trades Unions in England, p. 135 C. Wright's Outlines of Practical Sociology, pp. 294 et seq.]

[ISAACS J. referred to Webb's History of Trades Unionism (1894), p. 241.]

Sec. 75 (iv.) of the Constitution bears some analogy to sec. 51 (xxxv.), in that its purpose is to give an effective power as to matters in respect of which the powers of the States were not effective. With regard, then, to existing contracts and to State laws which are police laws or partly police laws and partly indus- trial laws, provided that they are laws which regulate the subject matter of what in 1900 were known as industrial disputes, the Commonwealth Court cannot make awards inconsistent with the law. As to the second question, the demand is by all the employés both in and out of Western Australia for higher wages in Western Australia than in the rest of the Commonwealth, or, in other words, for a general rise in wages, and, in case the general rise is granted, a further rise of 15 per cent. in Western Australia. That is most cogent to show that there is not a single dispute. There is not one demand, but a different demand in Western Australia from that in the other States. As to the third question, there is not sufficient community of interest between the operatives in the different States to constitute one dispute.

Blacket, for the State of New South Wales. As to the first question, there cannot be a dispute extending beyond the limits of one State unless it is a dispute which can be brought about by one demand and one refusal. There must be an organization of employés on one side and an employer carrying on business in more than one State, or an organization of employers, on the other. If the present application can be entertained by the Common-

8 CLR 480

wealth Court, there is no industrial dispute as to which the juris- diction of the State Courts could be ousted. The power of the States to deal with domestic affairs was not intended to be affected by sec. 51 (xxxv.) of the Constitution: Jumbunna Coal Mine, No Liability v. Victorian Coal Miners' Association 1; The King V. Barger 2; Attorney-General for N.S. W. v. Brewery Employés Union of N.S.W. 3. But the Commonwealth Court has im- pliedly every power which will make the express power given by the Constitution effective.

[HIGGINS J. referred to Southern Realty Investment Co. V. Walker 4; Harvard Law Review 1909, p. 489. The extending of the dispute to other States may in some circumstances be a fraud upon the Court.]

No one party can, at its own will, create a dispute extending beyond the limits of one State. Even if under sec. 51 (xxxv.) of the Constitution it was sufficient that one party only should be acting in concert, sec. 4 of the Commonwealth Conciliation and Arbitration Act 1904 limits industrial disputes to cases in which one employer or an organization of employers is concerned, and such a dispute does not include one in which a number of employers who are not organized are concerned. Sec. 73 bears out that view. A dispute with respect to which the Common- wealth Parliament can legislate is one of which it can be said that it does extend, or may extend, to more than one State, such as a dispute as to shipping or shearing. The jurisdiction of the Commonwealth Parliament under sec. 51 (xxxv.) cannot be ascer- tained until it is known what is reserved to the States: Attorney- General for Ontario v. Attorney-General for the Dominion of Canada 5.

[HIGGINS J. referred to Camfield v. United States 6]. Although the Commonwealth Court must necessarily have those powers necessary to the jurisdiction expressly given by the Con- stitution, that jurisdiction is not to be extended, at the cost of the State powers, by any consideration that a wider power would con- duce to the benefit of the public, or of the government of the

16 C.L.R., 309, at p. 332. 26 C.L.R., 41, at p. 71. 36 C.L.R., 469, at p. 503. 4211 U.S., 603. 5(1896) A.C., 348. 6167 U.S., 518. 8 CLR 481

Commonwealth. If sec. 30 of the Commonwealth Conciliation and Arbitration Act 1904 means that the Commonwealth Court can issue prohibition to the State Courts, it is ultra vires. The words lawfully made" do not mean made in accordance with the rules made by the Court, but made within the jurisdiction of AUSTRALASIA the Court. If that is so, the section is unnecessary except as JAMES MOORE showing that the Parliament meant to cover the whole ground over which it has jurisdiction. As to the third question, assuming that employment in bush mills is different from that in timber yards, bush mills are not within the dispute.

Duffy K.C. and McArthur, for the Commonwealth The true antithesis in sec. 51 (xxxv.) of the Constitution is between conciliation and arbitration, and not between prevention and settlement. The idea is that there may be conciliation for an anticipated dispute, and arbitration for an existing dispute or for an issue of a contemplated dispute. The words "industrial dis- pute extending beyond the limits of any one State" are a descrip- tion of a state of things which exists, or may exist, in the future, and, just as conciliation may be used for dealing with questions within that area, SO may arbitration.

[HIGGINS J.-Secs. 2 and 3 of the Conciliation Act 1896 (Eng.) use the word arbitration" where a dispute is apprehended.]

This point should be left open. As to the argument that the existence of a State law, or an industrial agreement under a State industrial law, or a voluntary agreement in a State prevents there being a dispute extending beyond one State SO far as that State is concerned, if it is sound the existence of the State law does not determine the matter. The principle would equally apply if there were no law, but the State had power to make the law but had not done SO. It could be said in either case that the Commonwealth Parliament was intruding upon the domain of State authority. On the other hand, if it is said that a State law has settled the dispute in the State, the answer is that the dispute is temporarily quelled by the State legislation, but it still exists. The State law has not stopped the dispute, but has pre- vented one party getting what it wants. The dispute is not as to whether the State law shall be repealed, but whether one party

8 CLR 482

shall or shall not get what it asks. The power given by sec. 51 (xxxv.) of the Constitution is given SO that disputes extending over an area greater than one State may be settled by a tribunal having paramount authority, and it should not be trammelled by the fact that there are State laws dealing with disputes in States. There is no suggestion in sec. 51 (xxxv.) that arbitration should be barred by limitations which local authorities have imposed. If it were so, a local State authority could prevent any dispute extending beyond other States into that State. If an agreement as to the rate of wages is inconsistent with the award which the Commonwealth Court is authorized to make, that agreement goes. There is no estoppel here, because the parties who are bound by the State award are not the same persons as those who are claimants in this case. That applies to the fifth, sixth and seventh questions. As to the seventh question, the agreement goes. Whether any of the parties will have rights for breach of agreements or not is immaterial now. It does not affect the universality of the law. If it be necessary to inquire exactly what solidarity of parties is necessary to constitute an industrial dispute, it is at most confined to the party making the dispute, and it is entirely beside the question to investigate what union there need be between the persons on whom the dispute is sought to be fixed. In dealing with the meaning of an industrial dispute it is an error to start from what is a legal dispute, namely, a dispute in which there is one cause of dispute on both sides. That can happen in no industrial dispute. In law every man who asks for higher wages has a distinct dispute with his em- ployer. Assuming an industrial dispute to be established by the parties on one side joining together and using their joint efforts to enforce the demands of each, how does it affect the matter that the parties on the other side do not join together The dispute must be really a general dispute, and that is a question of fact. The mere fact of making one paper demand is not suffi- cient to constitute an industrial dispute.

[GRIFFITH C.J.-The parties who are attacked must at least know that there is a general dispute.

ISAACS J. referred to Webb's History of Trades Unionism, p. 390, as to a dispute extending.]

8 CLR 483

If all the parties on one side join in making one homogeneous claim, it is sufficient, notwithstanding that part of the claim is that in one State there should be a higher rate of wages than in others. An award giving a higher rate of wages in Western Australia would not be a preference within sec. 99 of the Consti- tution. The words "trade" and "commerce" in that section are JAMES MOORE confined to the sale or barter of articles United States v. E. C. Knight Co. (1). Once there is a number of men in one industry associated together and making claims against a number of employers in that industry, the fact that some of the employers do not then and may never engage in a particular branch of that industry, SO that they do not and may never employ certain classes of workmen, a general award may be made which will apply to those particular employers if they ever do employ any of those classes of workmen belonging to the association. The fact that a man can say he is engaged in one industry does not prevent him being at the same time engaged in another industry if one of these industries can be fairly said to be a part of the other industry. The case of two employers in partnership must at any rate be included in the definition of "industrial dispute" in sec. 4 of the Commonwealth Conciliation and Arbitration Act 1904.

[GRIFFITH C.J.-That definition is for the purpose of describing the kind of thing with which the Parliament is dealing, and in that view " employer" may include employers."

Throughout the Act there are indications that a number of employers not organized may be parties to a dispute: See secs. 27, 32 (a).

Mitchell K.C., in reply. In the use of the words "industrial disputes" in English legislation there is no conception of a dispute between master and servant as to which an Act of Parliament prescribes a rule of conduct. If the views put forward on behalf of the Commonwealth are correct, the President of the Common- wealth Court is entitled to deal with matters with which the Commonwealth Parliament itself cannot deal directly, and if he does SO and the result is found to be prejudicial, the Common-

8 CLR 484

wealth Parliament has no power to interfere. Such a power was not intended to be granted. If the power given by the Parlia- ment to the Commonwealth Court of Conciliation and Arbitration were put in the same words as the power given by sec. 51 (XXXV.), it would be a power to act in accordance with the law applicable

MOORE to the facts, and the same meaning should be given to the words

in sec. 51. (xxxv.) of the Constitution. The award referred to in the fifth question acts as an estoppel. A party, who has a choice of going to one of two jurisdictions and having gone to one is dissatisfied, is estopped from then going to the other: Barber V. Lamb 1 Taylor v. Hollard 2; Scarf v. Jardine 3 Everest and Strode on Estoppel, 2nd ed., p. 35. If an award of the Commonwealth Court were inconsistent with an agreement there could not be an action for breach of the agreement if the award were lawful Gibson v. Lawson 4.

Irvine K.C., in reply to Duffy K.C. As to sec. 99 of the Constitu- tion, the result of the American cases is not necessarily that a combination to restrict production is not a restraint of Inter-State trade and commerce Eddy on Combinations, vol. II., pp. 923 et seq.

[ISAACS J. referred to Montague &amp;Co. v. Lowry 5.] Arthur, in reply, referred to Webb's Industrial Democracy, p. 222 Cromwell and Bannockburn Colliery Co. v. Board of Con- ciliation for Otago 6; Federated Amalgamated Government Railway and Tramway Service Association v. New South Wales Railway Traffic Employés Association 7.

Our. adv. vult.

GRIFFITH C.J. This case, which occupied the Court for nine days, comes before us as a case stated by the President of the Commonwealth Court of Conciliation and Arbitration for the opinion of the Court, under sec. 31 of the Commonwealth Con-

18 C.B.N.S., 95. 2(1902) 1 K.B., 676. 37 App. Cas., 345, at p. 365. 4(1891) 1 Q.B., 545, at p. 560. 5193 U.S., 38. 625 N.Z.L.R., 986. 74 C.L.R., 488, at p. 539. 8 CLR 485

ciliation and Arbitration Act, which provides that the President H. OF may state a case for the opinion of the High Court upon any question arising in any proceeding which, in his opinion, is a FEDERATED question of law.

The applicants are an organization registered under the Act. AUSTRALASIA The respondents are thirteen companies and firms engaged in what JAMES

I will for convenience call the timber trade in five of the States PROPRIETARY of the Commonwealth-in which we are told that there are some hundreds of similar firms and companies. Some of the respondents have timber yards, in which, as I understand, they carry on the business of dealing with log timber, whether Australian or imported, cutting it up into planks and boards, and sometimes manufacturing it into doors and window sashes, which may or may not be also fitted with glass. Others of the respondents are engaged in what is called in America the lumber trade, i.e., felling timber in the forests, cutting it into logs or railway sleepers or ties, and sending the logs or sleepers to market in Australia or abroad. Some of them are engaged in both trades. The complainants are an organization representing operatives engaged in both trades, and they ask that a common "log" or schedule of wages with other conditions of labour may be adopted with respect to both these trades throughout the five States, but that in Western Australia the rates of wages paid should be higher by 15 per cent. than elsewhere.

The questions submitted in the case are to a great extent of an abstract character. In my judgment the provisions of sec. 31 were not intended to allow the submission of hypothetical or abstract questions of law which may never arise for actual decision. Any opinions expressed by the Court on such questions can only be obiter dicta of more or less weight, but having no binding authority. And I regret to have to say that in my judg- ment most, if not all, of the questions which have been SO labori- ously and exhaustively discussed before us are of that character.

I was reminded during the course of the argument of M' Naghten's Case 1, in which the Judges, much against their will, were asked to express an opinion upon questions of law not necessary for the decision of an actual case.

110 Cl. &amp;F., 200. 8 CLR 486

I will read the introductory words of the opinion of Tindal L.C.J. (speaking for all the Judges except Maule J. 1 :- My Lords, her Majesty's Judges (with the exception of Mr. Justice Maule, who has stated his opinion to your Lordships), in answer- ing the questions proposed to them by your Lordships' House, v. MOORE think it right, in the first place, to state that they have forborne

entering into any particular discussion upon these questions, from the extreme and almost insuperable difficulty of applying those answers to cases in which the facts are not brought judicially before them. The facts of each particular case must of necessity present themselves with endless variety, and with every shade of difference in each case and as it is their duty to declare the law upon each particular case, on facts proved before them, and after hearing argument of counsel thereon, they deem it at once im- practicable, and at the same time dangerous to the administration of justice, if it were practicable, to attempt to make minute applications of the principles involved in the answers given by them to your Lordships' questions." The precedent has never been followed.

It appears necessary, however, if only to show why I feel bound to refuse to give a categorical answer to some of the questions submitted, to express my opinion on some of the points argued, even though it may be only obiter, and to state some propositions which appear to me to be elementary, and indeed little more than truisms, although nearly all of them have been explicitly or implicitly controverted in the arguments for the claimants.

The main questions discussed depended upon the proper con- struction of sec. 51 (pl. xxxv.) of the Constitution, which confers upon the Parliament power to make laws for the peace, order, and good government of the Commonwealth with respect to concilia- tion and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State. The Constitution, as this Court has often pointed out, is to be construed by the application of the same rules that are applicable to the construction of other laws. The rule laid down in Heydon's Case 2, is especially applicable.

"Four things are to be

110 CI. &amp;F., 200, at p. 208. 23 Rep. 7, at p. 7b. 8 CLR 487

discerned and considered :- What was the common law before the making of the Act. 2 What was the mischief and defect for which the common law did not provide. (3) What remedy the Parliament hath resolved and appointed to cure the disease of the Commonwealth, and (4) The true reason of the remedy; and AUSTRALASIA then the office of all the Judges is always to make such construc- JAMES tion as shall suppress the mischief, and advance the remedy, and PROPRIETARY to suppress subtle inventions and evasions for continuance of the mischief, and pro privato commodo, and to add force and life to the cure and remedy, according to the true intent of the makers of the Act, pro bono publico." Before the establishment of the Commonwealth industrial disputes" (as to the meaning of which term I shall have more to say) had occasionally arisen in the different Colonies, and in two of them (New South Wales and South Australia) tentative legislation had been passed for the purpose of dealing with them by conciliation and arbitration. A similar law had been passed in the neighbouring Colony of New Zealand. Tentative efforts had been also made in the United Kingdom to deal with the same subject. Each Colony had absolute power to deal with the matter within its own limits, but in the event of a single dispute covering an area not within the bounds of any one Colony, there was no legislative authority (except the Parliament of the United Kingdom) which could have dealt with it. This was the state of the law, and this was the defect. The remedy was to authorize the Commonwealth Parlia- ment to make laws for dealing with such disputes, not in any way they might think desirable, but by conciliation and arbitra- tion for their prevention and settlement.

It is necessary at the outset to consider the meaning which the term "industrial dispute" conveyed in 1900 to the minds of per- sons conversant with the English language. It may be that the words have since been used in a larger sense, or that an artificial sense has been attributed to them by Statute (e.g., the English Act of 1906), but this is not relevant to the present inquiry. In the Jumbunna Case 1, the meaning of the term was discussed as far as was necessary for the decision of the questions then before the Court. I used the following language (2):

26 C.L.R., 309, at p. 332. 1C.L.R., 309. 8 CLR 488

" An industrial dispute exists where a considerable number of

employés engaged in some branch of industry make common cause in demanding from or refusing to their employers (whether one or more) some change in the conditions of employment which is denied to them or asked of them. The form of combination is

MOORE immaterial, though it most commonly arises where there are

organized associations of employés or employers. The degree of permanency of the combination is also immaterial, but there C.J. must be some continuity of action." This definition was not, of

course, and was not intended to be, exhaustive, but was limited to pointing out the difference between an ordinary dispute between individuals and disputes between employers and employés acting collectively.

The word "industrial" as used in sec. 51 (xxxv.) points, I think, to the nature or quality of the disputes, and denotes two qualities which distinguish them from ordinary private disputes between individuals, namely 1 that the dispute relates to indus- trial matters, and 2 that on one side at least of the dispute the disputants are a body of men acting collectively and not individually.

1First, then, I say the term "dispute" itself connotes the existence of disputants taking opposite sides. It also connotes that the difference between the parties to it is one that is capable of settlement by mutual agreement. If the desires of either party cannot be satisfied by reason of the existence of a law which forbids such satisfaction, the existence of that law does not constitute a dispute. If the dispute is widespread there may be a political agitation, but it is not a dispute.. 2The term "industrial dispute" connotes a real and sub- stantial difference having some element of persistency, and likely, if not adjusted, to endanger the industrial peace of the com- munity. It must be a real and genuine dispute, not fictitious or illusory. Such a dispute is not created by a mere formal demand and formal refusal without more. We have not to deal with technicalities, such as the meaning of the term "conversion" in the old action of trover, in which a demand and refusal were sufficient evidence of conversion. In considering industrial 8 CLR 489

disputes we are concerned with real facts, not words or word- H. C. spinning.

No doubt, the term "industrial dispute" might be used, and had been used, in a wider sense, but the words " extending, etc.," show that it is not SO used in the Constitution. If it had been AUSTRALASIA

SO intended, the power in question might have been expressed as JAMES a power to facilitate the creation of industrial disputes, and to PROPRIETARY promote the extension of such disputes beyond the limits of any one State with a view to their settlement by federal authority. If, therefore, there is in fact no real discontent existing, a mere claim or request made by an employer or on behalf of a body of employés, without any intention of pressing it, but for the mere purpose of making a case to be brought before the federal arbitration authority, does not constitute a real industrial dispute. It is, rather, an attempt to promote strife and a fraud upon the tribunal.

(3) A dispute between A. and B. as to their respective obliga- tions under an admitted agreement is not an industrial dispute within the meaning of the Constitution. The term "industrial dispute may be, and has been, used in that sense in Statutes which SO defined it, but that fact is quite irrelevant. Such a dispute can be settled by the ordinary State tribunals.

(4) A refusal by A. or B. to perform an admitted agreement, the interpretation of which is not in question, is not an industrial dispute.

(5) For the reasons given in (1) a general refusal to obey a law relating to industrial matters is not and cannot be an element of an industrial dispute. Nor can discontent with such a law and a desire to be freed from its obligations be an element of an industrial dispute. If the term is capable of having such an extended meaning (which has never yet been given to it), it is inconceivable that, if the framers of the Constitution intended to authorize the Parliament to abrogate a State law or absolve persons discontented with the law from their statutory obliga- tions, they should have done SO by the words now under discussion.

I pass now to the words "extending beyond the limits of any State."

(6) An industrial dispute "extending &amp;." must be a single

8 CLR 490

C. OF dispute, and must relate to matters in which all the disputants

are interested as affecting themselves, in the sense in which persons are said to be interested in a litigation, not in the sense that they regard it with interest. It follows that mere discontent with an existing State law cannot, even if it were otherwise an industrial dispute, be said to extend beyond the limits of the State in which the law is in force.

(7) The dispute must be single in the sense that there must be Griffith C.J. a substantial community of interest amongst the demandants

and amongst those who refuse the demand.

(8) There must be a substantial identity of subject-matter. For instance, a demand for a set of conditions in State A. relating to one matter and another set of conditions in State B. relating to another matter, although made by bodies of employés or employers in both States associated for the purpose of making the demand, constitutes not one dispute but two disputes.

(9) Mere identity of branch of industry is not sufficient of itself to prove substantial identity of subject-matter. The differ- ence in one State may be as to hours of labour, in the other as to terms of remuneration, in the same industry. In this case there would not be a single dispute.

(10) On the other hand, there might be substantial identity of subject-matter although the branches of industry in connection with which it is made are not the same: For example, a demand for a reduction in the hours of labour in several distinct trades in which the employés are associated together for the purpose of enforcing that demand might be a single dispute.

Again: The identity as regards demands made as to different States may be partial only. In that case there may be a single dispute as to part of the subject-matter, and several disputes as to other parts.

(11) Mere verbal coincidence in demands made as regards two States does not prove identity of subject-matter. The varying conditions of climate and other physical conditions found in the Commonwealth may make a demand couched in particular language in respect of one State quite different in its essence from a demand couched in the same words in respect of another.

(12) The term "industrial dispute " connotes something in the

8 CLR 491

nature of industrial war, existing or threatened. differences confined to small localities in two or more States, even if they possess all the other elements of substantial identity of subject-matter, cannot be said to extend beyond the limits of one State merely because the parties to the differences in the several AUSTRALASIA States combine in making a request in identical terms to their JAMES respective employers.

(13) There must be real community of action on the part of the demandants, and some community of action on the part of the parties on whom the demand is made. Such community need not be formulated in any written document, nor need the parties who are acting together be bound by any formal agree- ment. If it is found that large bodies of men in two or more States are in fact acting with one accord, then, if the other elements of an industrial dispute are present, an occasion arises for the exercise of the federal power in question.

(14) The dispute must be actually existing and actually extending beyond the limits of one State before such an occasion can arise. Mere mischief-makers cannot, therefore, by the ex- penditure of a few shillings in paper, ink, and postage stamps create such an occasion.

It is almost-I should think quite-impossible that such a state of industrial war as amounts to a real industrial dispute extending beyond the limits of a State can exist without its existence being known to the persons engaged in the branch of industry affected. In such a case it is immaterial whether the parties on whom the demand is made do or do not combine for the purpose of resisting the attack. But in the case of a mere paper demand, where industrial operations go on as usual, evidence of some combination or preconcert in resisting it may be necessary. It would be a singular thing if a joint demand made by associated bodies of men employed, say, at Perth and Brisbane respectively on each of two employers who are engaged in the same branch of industry in those cities, but are unknown to one another and have nothing else in common, could be regarded as an industrial dispute extending beyond the State of Western Australia to Queensland or beyond Queensland to Western Australia.

8 CLR 492

As I said at the outset, these propositions seem to me mere truisms. They do not profess to contain an exhaustive statement of what may or may not constitute an industrial dispute, or such a dispute extending, &amp;., but they express some of the elements of such a dispute, as I understand the plain English words under

JAMES MOORE consideration.

Having thus arrived at some notion of the meaning of the words standing alone, I turn to the consideration of the extent of the power which is conferred upon the Parliament with respect to such disputes. For this purpose, pl. XXXV. is to be construed having regard to the rest of the Constitution, and particularly with reference to the doctrine repeatedly laid down by this Court that any invasion by the Commonwealth of the sphere of the domestic concerns of the States appertaining to trade and commerce is forbidden except SO far as the invasion is authorized by some power conferred in express terms or by necessary implication.

The cases to which I refer, and which I need not mention by name, also establish that the regulation of the conditions of employment is within that sphere. The question, then, is, to what extent does the power under discussion authorize such an invasion ? The answer is-SO far as necessary for its effective exercise. What then is the power ? We are not concerned with the political question, now hotly debated, whether it is desirable that the Federal Parliament should have paramount authority to determine all conditions of employment in the Commonwealth. Our duty is to interpret the Constitution as it stands, not according to any preconceived notions as to what it ought to be. Now, as already pointed out, the power is not a general power to make laws for the settlement of industrial disputes. A power conferred in such terms would prima facie authorize an invasion of the whole field of the conditions of employment SO far as might be necessary for their settlement. The power is limited to making laws for their settlement by arbitration. The term arbitration" connotes a judicial tribunal, by whatever name it is called and however constituted, and, although the functions of the tribunal differ from those of ordinary tribunals in that they are not limited to determining existing causes of action, but extend to

8 CLR 493

prescribing conditions to be observed in future contracts of employment, the tribunal is no less a tribunal. To my mind the obligation to decide in accordance with law is implied in the notion of the creation of a tribunal. Otherwise the members of the tribunal would not be judicial persons at all, but dictators exercising the power of legislation, not of adjudication.

It is gravely maintained, however, that the tribunal which the PROPRIETARY Parliament may establish for the settlement of industrial disputes is not bound by any State laws relating to domestic trade, and that, although the Parliament itself could not make a law incon- sistent with the State law, it can under the language of pl. XXXV. authorize its creature, the tribunal of arbitration, to disregard the State law, to free persons from any obligation to obey it, and even impose penalties upon persons who do obey it, because such power is necessary for the effective settlement of industrial dis- putes. I have already pointed out that discontent with a State law cannot be described as a dispute in any sense in which that word has hitherto been used, SO that a power to authorize the settlement of disputes cannot be read as a power to set aside or suspend or abrogate an obnoxious law.

But, even if it could, it seems to me that, applying the rules of construction of the Con- stitution SO often laid down, at best the language would be ambiguous, and that, even if the words are capable of the mean- ing asserted, it is SO inconsistent with the reservation to the States of the power to regulate their domestic trade that it should be rejected. For, if conceded, it practically annuls that reserva- tion, and permits the federal tribunal to substitute its uncontrolled volition for the will of the Parliaments of the States, SO soon as a political agitation for the repeal of an obnoxious law in any State is taken up by sympathizers in another State.

I find it difficult to treat such an argument with due gravity. It may be necessary, in order to allay political agitation, for the legislature to repeal or alter an existing law, but it cannot be said to be necessary that a tribunal appointed to settle disputes by arbitration should have a dispensing power authorizing it to supersede or abrogate a law or excuse obedience to it, unless, indeed, it is assumed that a dispute cannot be settled unless one (and of course only one) of the parties to the dispute gets all that

8 CLR 494

he asks. This would be an entirely novel meaning of the word,

and would put the tribunal above the law. Sie volo, sic jubco, mea sit pro lege voluntas.

I now pass to the questions formally submitted to the Court, premising that, as this Court decided in the Broken Hill Case 1,

MOORE the questions whether an industrial dispute actually exists and

PROPRIETARY whether it extends beyond the limits of one State are questions

of fact, which can only be finally decided by a Court before which the validity of an award is brought in controversy.

I. The Case first sets out that the claimants are a registered organization of employés, and that "the dispute is with employers carrying on business in the several States employing members of the organisation, that the respondents in each State have no business or other connection with the respondents in other States and have refused the demand of the organization (which is for the adoption of a complete log or schedule of rates of wages and conditions of employment to be observed in all the States) independently and without preconcert with the employers in the other States, and submits the following question -Does the dispute extend beyond the limits of any one State

(a) Within the meaning of sec. 51 (xxxv.) of the Constitu- (b) Within the meaning of sec. 4 of the Commonwealth

Conciliation and Arbitration Act 1904 ? On the part of the claimants it was contended that the fact of a single demand having been made by a single organization upon employers in several States was sufficient, and indeed conclusive, evidence of the existence of an industrial dispute extending beyond the limits of one State. It is true that this contention was from time to time disclaimed by Mr. Arthur, but it was as often revived in slightly different language, and its discussion occupied a considerable part of our time. On the other side it was contended that the absence of preconcert between employers in different States was conclusive to negative the existence of such a dispute. For the reasons already given I am unable to accede to either view. In order to ascertain whether such a dis- pute exists regard must be had to all the facts. The facts relied

18 C.L.R., 419. 8 CLR 495

on as conclusive are, both of them, very relevant facts, but H. neither of them is in my opinion necessarily conclusive. I am, therefore, unable to give a categorical answer to the first branch of this question. All I can say is that upon the facts as stated there may or may not be an industrial dispute, and that the AUSTRALASIA dispute (if any), may or may not extend beyond the limits of any one State. The actual fact, as I have already said, can only be PROPRIETARY determined in some proceeding taken to challenge the validity of the award, if and when made.

The second branch of the question relates to the meaning of sec. 4 of the Act, which, SO far as material, defines the term

industrial dispute' as meaning "a dispute in relation to industrial matters arising between an employer or an organiza- tion of employers on the one part and an organization of employés on the other part, and extending" &amp;. Sec. 19 provides that the Court shall have cognizance inter alia of all industrial disputes which are submitted to the Court by an organisation by plaint in the prescribed manner. The other provisions of the section are not material. It was contended by Mr. Blacket, who argued the case for the State of New South Wales, that under the Act as framed, and having regard to the definition, the only industrial disputes of which the Court has cognizance are dis- putes in which the party on the employers' side is a single employer or an organization of employers, SO that a dispute between an organization of employés and several distinct employers not associated in an organization cannot be dealt with.

I was at first impressed with this argument, and if the words of the definition had been inserted in sec. 19 I am disposed to think that they should have been read as words of limitation. But I think that in an interpretation clause they are not to be taken as words of limitation, but are used altogether alio intuitu. The object of the definition is, I think, to show what is the essential quality of disputes which are to be considered industrial dis- putes, that is, that they are disputes between employers and organizations of employés. Regarded in this light, the singular "an employer" may well be read as including the plural, although in a different context it should perhaps be read other- wise.

8 CLR 496

If therefore all the other elements of a genuine dispute exist,

I think that it is a dispute within sec. 4.

II. The Case next sets out that in the schedule of wages demanded by the claimant organization a claim is made for an additional 15 per cent. in Western Australia "to be added on

MOORE above rates for extra cost of living," and the question is asked

whether the Court has power to make any enforceable award SO far as regards the Western Australian employés. The answer to this question depends upon the actual facts. If there is a dispute within the cognizance of the Court to which the Western Australian employers are parties, it can, of course, make an award with respect to them. If not, it cannot. I am unable, without affecting an ignorance of Australian geography and Australian conditions which I do not enjoy, to pretend to think that the employés, say, in Queensland can have any such com- munity of interest with the employés in Western Australia as to make the demand for an extra 15 per cent. of wages in the latter State an identical subject-matter of dispute in both States. But if there is otherwise a dispute extending beyond a State, I do not think that the attachment to it of a special claim or claimant affecting only one State would necessarily deprive the Court of jurisdiction to deal with the dispute as far as it relates to matters in which the disputants have a real community of interest. The award cannot go beyond the limits of the dispute of which the Court has cognizance, but if there is really a dispute it can go as far as the dispute goes. Other weighty arguments were urged, based upon sec. 99 of the Constitution, which provides that "The Commonwealth shall not, by any law or regulation of trade, commerce, or revenue, give preference to one State or any part thereof over another State or any part thereof," and it was contended that an award in terms of the claim would amount to a regulation of trade and commerce giving preference to the other States as against Western Aus- tralia. But this would be an objection to the award, and does not determine the question of the jurisdiction of the Court to entertain the claim.

The only answer that I can give to the question is that, if all the other elements of a "dispute extending &amp;." exist, the fact of

8 CLR 497

this claim having been made in connection with it does not pre- vent the Court from making a valid award as to the Western Australian employés.

III. The facts relevant to the third question submitted may be summarized by saying that several of the trades and occupations AUSTRALASIA referred to in the log or schedule demanded are, and some are not, JAMES carried on both in the lumber trade, described as the bush mills, PROPRIETARY and in the timber yards. No member of the claimant organiza- tion is employed in the timber yards in Western Australia or in bush mills in South Australia. One New South Wales respondent has a bush mill as well as a timber yard, and two Queensland respondents have both. The question asked is whether the Court had power to make a valid award with respect to wages and conditions of labour in Western Australia as to trades and occupations in which no member of the claimant organization is employed, and in South Australia as to trades and occupations which are not carried on by any South Aus- tralian respondent.

My answer is: It depends on the whole facts of the case. If the two branches of the timber trade are in fact SO connected together throughout Australia, from the operation of felling of trees in, say, Queensland and Western Australia, and the hauling of the timber, to the making of doors and window sashes, that a question which affects one branch affects the other in every State concerned, SO that the industrial dispute is really a single dispute, then the fact that a particular employer has not in his present employment any persons engaged in a particular occupa- tion, such as glaziers, does not affect the jurisdiction of the Court to make an award operating over the sphere of the actual dispute. If the facts are not so, there would in re verá be not one dispute but several disputes,

IV. The fourth question raises a similar but not identical point. One of the respondents, Millar's Karri and Jarrah Company, carry on both businesses in Western Australia, and the business of timber yards only in Victoria. They have members of the claimant organization employed in their timber yards in Victoria but not in Western Australia. Some of the products of their mills in Western Australia are sent to their yards in Victoria for sale.

8 CLR 498

They also had, but have not now, members of the organization

employed in timber yards in Queensland. Under these circum- stances the question put is whether in the case of this company the assumed dispute extends beyond the limits of any one State

AUSTRALASIA within the meaning of the Constitution or within the meaning of

JAMES MOORE sec. 4 of the Act, and whether the Court has power to make an

award applicable to them and to what extent.

Again I say, it depends on the facts. If the business carried C.J. on by the company in Western Australia at its bush mills is an

re verá the same business as that carried on in Victoria at its timber yards, as on the facts this Court held to be the case with regard to the business of the Broken Hill Proprietary Company carried on at Broken Hill in New South Wales, and Port Pirie in South Australia, there may (if the other necessary facts exist) be an industrial dispute between the claimant organization and the company extending to Western Australia and Victoria both within the Constitution and the Act. Whether it extends to Queensland also must depend on the considerations applicable to question III.

V. The fifth question relates to the effect of an industrial award made in New South Wales by the Arbitration Court of that State between the New South Wales branch of the claimant organization and some of the respondents, which took effect from 16th June 1908 and operates for three years from that date. This award had been made a common rule governing all the New South Wales respondents, except one company who carry on their business at the Richmond River. We are asked to say whether the Court has power to make any enforceable award inconsistent with that award, either to operate immediately or at the expiration of the New South Wales award.

This question, in my opinion, raises two entirely different points, (1) whether as between the claimants and their employers bound by the award there is a genuine industrial dispute at all, and (2) how far the Court is bound by the terms of the award or adjudication of the State Arbitration Court. As to the first point, it was contended that parties who are discontented with a State award, can, at once, by associating themselves with employés in the same branch of industry in another State, and

8 CLR 499

making claims inconsistent with the State award, bring into existence a new industrial dispute extending beyond the limits of the State, that is, that they can, in effect, appeal from the State industrial Court to the federal arbitration tribunal. In such a state of things, and if that is all, I say without hesitation that there AUSTRALASIA is no genuine industrial dispute as between the parties in the State who are bound by the award. I do not think that the PROPRIETARY Constitution intended to give any such appeal, which would, indeed, be quite inconsistent with the whole scheme of the Con- stitution as regards State Courts.

But, with regard to the second point, I think that an award of a State Court of Arbitration, whether made a common rule or not, should be regarded as a judgment inter partes, standing on the same footing as a solemn agreement of the most binding nature, but not on the footing of a State law. If in the case of a genuine dispute which the federal Court has jurisdiction to decide, the existing obligations of the parties come incidentally in question, and it is impracticable to settle the dispute without departing in some degree from the terms of the agreement or judgment, I think that the jurisdiction of the Court to do SO is not excluded. But it is hard to imagine a case in which any tribunal would allow parties, who have invoked and obtained a judgment of a competent Court, to tear up the judgment merely because they are dissatisfied with it. With this qualification I answer the question in the affirmative.

VA. The Factories and Shops Acts of Victoria provide for the determination of the minimum rates of remuneration and maximum hours of work to be permitted in that State in certain branches of industry. This function is entrusted to elected Boards, and the determination when made has the force of law. There is in existence a determination of a Board, called the Woodworkers' Board, which determines for part of Victoria certain conditions of employment with respect to some of the occupations followed by members of the claimant organization within that part. We are asked to say whether the Court has power to make an enforceable award inconsistent with that determination.

In my opinion the Wages Boards are subordinate legislative

8 CLR 500

bodies duly constituted by the law of Victoria, and for reasons

already given, I think that the Court cannot supersede ordinances made by them. That is to say, the Court cannot fix a lower minimum of pay or a higher maximum of hours of labour than those prescribed by the determination, or make any other order

MOORE inconsistent with the particular ordinance of the Board as to a

matter within its jurisdiction. The test of inconsistency is, of course, whether a proposed act is consistent with obedience to both directions.

With these qualifications I answer this question in the nega- tive.

VI. There is in existence an industrial agreement registered under the Western Australian Industrial Conciliation and Arbitration Act made between the Western Australian branch of the claimant organization and Miller's Karri and Jarrah Co. We are asked to say whether the Court can make an enforceable award inconsistent with this agreement. What I have said with regard to question v. is equally applicable to this question.

VII. This question relates to an industrial or collective agree- ment between a Victorian trade union, of which some members of the claimant organization are members, and one of the Vic- torian respondents. Such an agreement is not legally enforce- able against any one, and the only effect that could be given to it until repudiated is as an obligation of honour. When re- pudiated it cannot stand in the way of an award.

VIII. Since the commencement of the proceedings Millar's Karri and Jarrah Co., which carried on operations in Queensland in both bush mills and timber yards, has sold its business to the Queensland Pine Company, and the Court has ordered that that company shall be joined as a party. We are asked whether it had power to do SO. In one sense the Court has power to join as party any person or company alleged to be a party to the dispute before the Court. Whether an effective award could be made against a party SO joined depends upon whether the person or company was in fact a party to the dispute. On this I have nothing to add to what I have already said.

I am conscious that this opinion partakes more of the character of an essay or treatise than of a judicial pronouncement, and I

8 CLR 501

entertain some doubts whether I am performing a judicial duty in delivering it. I should not like it to be regarded as a precedent, but on the whole I think I should let it go forth for what it is worth.

O'CONNOR J. The jurisdiction of the learned President to deter- JAMES mine the matters in issue between these parties can arise only on the establishment of the fact that there exists between them "an industrial dispute extending beyond the limits of any one State." On the inquiry into that fact several important questions of law have arisen. Others relating more immediately to the scope of the Court's powers in the settlement of the dispute must obviously arise. As yet no fact has been determined, nor is the inquiry as to the nature of the dispute closed. Under these circumstances it has been difficult to state in concrete form the matters of law upon which the learned President seeks the opinion of this Court. In the course of the argument it has become apparent that some of the questions cannot, in the absence of further knowledge of the facts, be answered at all, that others cannot be answered categorically, and that as to the latter the opinion of the Court to be of any value as a guide must be more or less in the nature of an exposition of the principles involved in the determination of the question. I propose, therefore, before answering the ques- tions separately, to consider generally some of the requirements of an industrial dispute essential under the Constitution to found jurisdiction and the extent of the powers which will necessarily be called into operation in the settlement of this particular dispute if jurisdiction is established.

It was urged for the respondents that it could not have been the intention of the framers of the Constitution to include in the word arbitration" a power to decide contrary to a State Act or a State award or an agreement, and apparently because that seemed to learned counsel an extraordinary or an unfair thing to do. Such an argument, in my opinion, is properly answered as it was in Salomon v. Salomon &amp;Co. 3. Lord Halsbury L.C.,

19 Wheat., 1. 2(1896) A.C., 348, at p. 366. 3(1897) A.C., 22. 8 CLR 537

there said 1 :- It is obvious to inquire where is that intention of the legislature manifested in the Statute." Lord Watson said

-"Intention of the legislature' is a common but very slippery phrase, which, popularly understood, may signify anything from intention embodied in positive enactment to speculative opinion as to what the legislature probably would have meant, although there has been an omission to enact it. In a Court of Law or Equity, what the legislature intended to be done or not to be done can only be legitimately ascertained from that which it has chosen to enact, either in express words or by reasonable and necessary implication." But where are the words in our Consti- tution which expressly or by necessary implication exclude from the Federal Statutes, which it has authorized in express terms, any interference with the rules of conduct enacted by State Acts Then learned counsel called in aid, rather faintly I confess, the doc- trine of implied prohibition based on United States v. Dewitt 3. Without repeating my recently expressed views on that point, and whatever be the accuracy of the doctrine as SO far applied, I do not think the two simple words of Chase C.J., which seem to me to be used rather metaphorically by him, can reasonably bear the further strain which this new argument would place upon them-a strain to which they have never been subjected in their American home. It would amount to this: that federal powers can be defeated not only by State powers but also by State Acts. If this were accepted there would be, SO far as I yet perceive, only one further possible stage to which the doctrine need be carried, and that is that all federal powers are subject in their exercise to the possibility of State Acts. Personally I reject the argu- ment, and hold that the Commonwealth Parliament could validly empower industrial arbitration which in the opinion of the arbi- trator would effect a settlement on just and equitable terms even though all the States together chose to pass Statutes to the contrary. The Constitution requires the opinion of the arbitrator and not of the Parliament, and that is the effect of the word 'arbitration."

I refer to what I have already said about the nature of arbitra-

1(1897) A.C., 22, at p. 31. 39 Wall., 41, at p. 52. 8 CLR 538

A. tion as known to the common law, and as practised without

legislative authority or sanction, as I refer also to the wide terms of the Australasian Acts as to the duty of the arbitration tribunals to determine upon the merits and according to justice as they find it. Turning to the federal Court we find no express

MOORE limitation which excepts from the alteration the conditions as to

hours or wages as existing because required under State laws, and we do find sec. 25 in these terms:-" In the hearing and deter- mination of every industrial dispute the Court shall act according to equity, good conscience, and the substantial merits of the case, without regard to technicalities or legal forms, and shall not be bound by any rules of evidence, but may inform its mind on any matter in such manner as it thinks just." That is closely followed by sec. 30 which does not affirmatively empower an award to be made inconsistent with a State law or award, and determination of a State authority, but clearly recognizes that it may be SO made, and SO gives the interpretation of Parliament itself with respect to sec. 25. In SO far as it purports to invalidate State laws or awards, it is inoperative for the reasons given by the Privy Council in the case of Attorney-General for Ontario V. Attorney-General for the Dominion 1.

Therefore if there is legislative power to authorize the Arbitra- tion Court to make an award inconsistent with a State law, that authority has been given.

For these reasons I am also of opinion that question 5A should be answered in the affirmative, but that the award should operate immediately.

Questions 6 and 7 must follow the result of the views I have expressed with regard to questions 5 and 5A, and I answer them in the same way.

As to question 8 I think "parties" in sec. 38 (p) means parties to the plaint-because a party may be struck out as well as joined-and, if only those who were in fact parties to the dispute could be struck out, that course could not be taken where it was obvious a party to the plaint was not a party to the dispute. But it is clear that no party would be joined who was not alleged to be a party to the dispute, and SO practically it is the same as

1(1896) A.C., 348, at p. 366. 8 CLR 539

if for the purpose of joinder " parties," meant 'parties to the dis- pute - the allegations of those desiring the joinder would in the meantime be accepted, and the issue of fact afterwards determined. With regard to this particular case, I can only say - it is all I have power to say or means of saying-that it is not impossible, in the circumstances set out in the question, that the Queensland Pine Co. Ltd. is now party to the dispute. The facts may show PROPRIETARY that it entered into the business and has since carried it on with full knowledge of the dispute, and SO as to take part in it, by adopting the same attitude as its predecessor relative to the demand already made, and by acting in the same way and with like intentions.

Whether that is SO depends entirely on the facts, and it is for the determination of the learned President.

I should not omit to notice one further contention based on sec. 99 of the Constitution, viz. that the Act was a regulation of trade and commerce which gives preference to one State over another. In my opinion it is not a regulation of trade and commerce, see United States v. E. C. Knight Co. (1). I also adhere to my opinion in The King v. Barger (2), that the Act does not give such preference.

HIGGINS J. These constitutional controversies resolve them- selves ultimately into questions of mere statutory construction and many of the difficulties would vanish if we keep steadily in view our function-merely to interpret and apply the will of the legislatures-British and federal. It is not for this Court to twist the expressions of the Parliaments to suit our own notions of economic or social expediency. The legislatures, not this Court, are responsible for the wisdom of the legislation. Our attitude should not be that of either approval or disapproval. Great social experiments are being tried; and they should get a fair trial- whatever we may think of their merits.

It is just as bad to be influenced in our decisions by fear of the powers given to the Federal Parliament, or by fear of the power given to the Federal Court of Conciliation, as it is to be influenced by a desire to see these powers magnified. There is no doubt that a rash, extreme,

(2) 6 C.L.R., 41, at p. 107 et seq.

8 CLR 540

or unwise exercise of these powers may lead to great public disaster; but this danger does not justify us in curtailing the powers. " I utterly repudiate," said Willes J., the notion that it is competent to a Judge to modify the language of an Act of Parliament in order to bring it in accordance with his views as to

MOORE what is right or reasonable." (Abel v. Lee 1 ). " We must take

the law as we find it; and, if it be unjust or inconvenient, we must leave it to the constitutional authority to amend it." (Gar- land v. Carlisle 2 ).

Now, the first question is, in substance, what my brother O'Connor has stated: Does the fact that the employers in the different States are not combined, have no business or other con- nection with one another, have acted independently in refusing the demands of the combined employés and without preconcert of any kind-does this fact in itself prevent the dispute from being a dispute "extending beyond the limits of any one State" Is combination on both sides of the dispute essential for a two- State dispute ?

This question was referred to, and left undecided, SO far as the Chief Justice is concerned, in the Jumbunna Case 3. The question, as stated by me, assumes that there is a dispute, an industrial dispute. A dispute may be one dispute, in the sense that it involves one claimant organization, and the same claim on several employers; but it may not follow that the dispute

extends" from one employer to another, or from one State to another State, within the meaning of the Constitution. At the same page of the Jumbunna Case, the Chief Justice said :-

An industrial dispute exists where a considerable number of employés engaged in some branch of industry make common cause in demanding from or refusing to their employers (whether one or more) some change in the conditions of employment, which is denied to them or asked of them. The form of com- bination is immaterial, though it most commonly arises where there are organized associations of employés or employers. The degree of permanency of the combination is also immaterial, but there must be some continuity of action." But the question, is

1L.R. 6 C.P., 365, at p. 371. 24 CI. &amp;F., 693, at p. 706. 36 C.L.R., 309, at p. 332. 8 CLR 541

there a dispute, will, it appears now, be more complex than these words would indicate. It is a question of fact, to be decided on all the circumstances of the case; and I should not have been justified in submitting the vast mass of evidence to this Court and asking "is there a dispute?" Nor should I have been justified in asking this Court the abstract question, What is a dispute?" or "What is a dispute extending, &amp;?" I quite concur with the PROPRIETARY expressions of the learned Chief Justice to the effect that any opinion expressed by this Court on hypothetical or abstract questions of law, which may never arise for actual decision, would have no binding effect. But I cannot concur in the view that the questions submitted are either abstract or hypothetical. They actually arose in the course of the case, and they-and many other questions which arise-have to be determined by me if not by this Full Court. Counsel for the respondents desired that I should bring these, and several other questions, before the Full Court. I refused to submit the others, as I could not ask the Court to decide them without the perusal of bulky evidence; and, as I feared, some even of the few which I have submitted cannot be categorically answered, as they involve a consideration of the facts as well as the law. The difficulty is not that the questions are either abstract or hypothetical, but that they involve facts as well as law. I have not, in this my judgment, investigated the meaning of "industrial dispute." I refrained from including it, for the reasons which I have stated. But my silence must not be taken as consent to the doctrine that the short and every-day phrase "industrial disputes extending" con- notes all the elaborate qualities which the Chief Justice has suggested in his judgment. I cannot find in the Constitution any evidence of intention on the part of the British Parliament to restrict the grant of the power to the Federal Parliament within SO narrow an area as that judgment indicates.

In my opinion, combination on both sides is not essential and it does not matter whether each of the independent employers knew, or knew not, that similar demands were being made on others than himself. From the form of the demand which is set out in the case, it is clear that they must have known; but I do not rely on knowledge. The test is, does the dispute extend

8 CLR 542

in fact beyond one State-not does each employer know that it

SO extends. In my judgment in the Jumbunna Case 1 I said that sub-sec. XXXV. of sec. 51 of the Constitution treats an indus. trial dispute as if it were an epidemic disease or a fire. "Of course, each of the victims has a separate disease; and each blade of grass

MOORE has its separate blaze. But there is such a connection between the

various sufferers, or the various blades of grass, that it is not unusual or incorrect to speak of the disease, or of the fire, as extend- ing' or as 'spreading.''' To pursue the simile, it seems to me that the fact of the bush fire being on both sides of the State boundary fence is enough. The fact of the epidemic being found on both sides is enough. No one State can deal with the whole evil: and SO the federal power is allowed to step in. The object of all the powers granted to make laws, including the power to make laws with respect to Conciliation and Arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State," is to secure "the peace, order, and good government of the Commonwealth," and the danger to these ideals is fully as formidable when there is widespread discontent and unrest in some industry, and the employers do not know the extent of the discontent and unrest, as when they do know it. The machinery of the Act is directed to arresting the disease-as it were, to deal with the effervescence, the commotion, before the water has boiled over-before the unrest and commotion have taken the usual deplorable form of a strike or a lockout, with all the attendant miseries. We have, in my opinion, no right to look for more than a real dispute in which many employés make common cause in at least two States, and relating to some industrial matter.

I have now given what, in my opinion, is the plain, ordinary, meaning of the words in sub-sec. XXXV. for the purpose of question 1. It is true that Mr. Blacket has urged on us that on the true construction of the Act the Court can deal with no dispute unless there be but one employer (or one organization of employers) and has argued that under sec. 4 the words "arising between an employer etc." cannot be read as "arising between employers etc." Assuming that this argument is open, sec. 23 of the Acts

16 C.L.R., 309, at pp. 313-4. 8 CLR 543

Interpretation Act 1901 seems to be a sufficient answer: " Unless the contrary intention appears

words in the singular shall include the plural" and the burden of showing the contrary intention lies on Mr. Blacket. Where is the contrary intention shown? It is not enough to show that possibly the plural might AUSTRALASIA not have been intended and such sections as secs. 29, 32, 35 2, JAMES 38 passim tend rather in the contrary direction. It is, moreover, re- assuring to find that under the New South Wales Act of 1901, which contains a similar definition of "industrial dispute," the words" an employer" have been treated as applying to "em- ployers " in the plural 1.

Then it is said that to construe the power as I have construed it may lead to abuses. Employés in some State, dissatisfied with their conditions, may induce employés in some other State, other- wise contented, to make common cause with them, and to dispute with their employers; thus turning machinery for settling dis- putes into a means for extending disputes. There is certainly danger of such an abuse; but there is at least an equal danger on the other side if employers, by avoiding combination among them- selves, can prevent the application of the federal power in pro- moting peace. But it is for the Commonwealth Parliament to provide safeguards against such abuses as suggested and sec. 38 (h) already confers on the Court of Conciliation a valuable safeguard. For that Court can refuse to determine the dispute if it is being dealt with or is proper to be dealt with by a State industrial authority, or if it think "that further proceedings by the Court are not necessary or desirable in the public interest." (See also Southern Realty Investment Co. v. Walker, (2) and cases cited.)

Question 2. The workers' organization makes substantially the same claim for all its members in the several States; but it adds this :- West Australia-15 per cent. to be added on above rates for extra cost of living." In my opinion, the mere fact that the demand, as expressed in money, is higher for Western Australia than for the other States does not prevent the Court from making its award apply to wages in Western Australia.

2211 U.S., 603. 3 ib., 82; 5 ib., 44. 12 Ind. Arb. Rep. N.S.W , 450; 8 CLR 544

OF A. Difference in the money payments does not at all show that the

dispute is not the same dispute, substantially. Inequality in money payments may be the best means of producing equality in living conditions; and inequality in living conditions, as

AUSTRALASIA between workers doing the same kind of work, is one of the

JAMES MOORE most fertile sources of industrial discontent and unrest. If the

PROPRIETARY claim is for a wage of 8s. 4d. per day in the Eastern States, and

for 9s. 7d. in the West, and if it should be found that 8s. 4d. in the East purchases the same commodities, produces the same standard of living as 9s. 7d. in the West, it is evident that the employés, East and West, are struggling for the same thing. As a rule, if the cost of living is greater, the returns of the product are also greater to the employer. But if timber merchants in the West should be handicapped in competition by the grant of the greater money wage, that fact could be shown to the Court of Conciliation, and it would be carefully weighed. As for the arguments founded on sec. 99 of the Constitution, there are two answers which, to my mind, are conclusive. An award under this Act is not a regulation of trade or commerce (as dis- tinguished from industry) and if it fix varying rates it does not give preference to one State or any part thereof over another State or any part thereof (see my judgment in R. v. Barger 1.

Questions 3 and 4. I concur in the answers which have been formulated by my brother Isaacs as to these questions. I cannot look for anything more definite under the circumstances. But the long discussion to which I have listened has not been wasted; it has enabled me to learn on many subjects the trend of the minds of the members of this Court.

Question 5 asks, in substance, what is to happen if there is an existing State award fixing the conditions of labour as to the same worker? Can the Federal Court of Conciliation, for instance, prescribe a different rate of wages ? Can it make an award inconsistent with the State award ?

There are two kinds of inconsistencies to be considered (1) The State award fixes a minimum wage for "saw doctors" at 1/3 per hour; and the Federal Court is asked to fix their minimum wage at 1/6 per hour. It does not necessarily follow that both

16 C.L.R., 41. 8 CLR 545

awards cannot stand together. Both can be obeyed by pay- ment of a higher wage. (2) The State award, however, might, conceivably, fix a maximum wage, say at 1/3 per hour. Can the federal award fix a higher maximum, or make the minimum 1/4 per hour ? It is to this latter class of inconsistencies that I pro- pose to apply my remarks-the case of the State prescribing one thing, and of the Commonwealth prescribing the contrary-the PROPRIETARY case of its being impossible to obey both commands.

Now this question throws us back on the fundamental prin- ciples of the Constitution and in particular on the often quoted words of sub-sec. XXXV. of sec. 51, on secs. 108, 109, and on cover- ing clause v. "This Act, and all laws made by the Parliament of the Commonwealth under the Constitution, shall be binding on the Courts, Judges, and people of every State, and of every part of the Commonwealth, notwithstanding anything in the laws of any State." The State laws continue in force; but always "sub- ject to this Constitution" (sec. 108); and when a law of the State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid (sec. 109). Looking now to the power under which the federal award is made-power to make laws for the peace, order, and good government of the Commonwealth with respect to :- (xxxv.) Conciliation and arbitration for the prevention and settle- ment of industrial disputes extending beyond the limits of any one State "-it is clear that any Act is valid which comes within the meaning of these words, and any award is valid which comes within the meaning of the Act; and both Act and award have supremacy over any State Act to the extent of any inconsistency.

But," it is urged, "there is no dispute if the State law has settled it. It does not lie in the mouth of the employés in New South Wales to say that there is any longer a dispute." This argument leaves the door open to some humorous comment and illustrations-for it asks us to treat men as being at peace who are in fact fighting. But there are three fallacies, at the least, in the argument. In the first place, what the State has settled is not the dispute in question-the two-State dispute-as to which the Federal Parliament and Court have exclusive power. The two-State dispute is as distinct from the one-State dispute,

8 CLR 546

as Inter-State commerce is distinct from the internal commerce of

a State. In the second place, sub-sec. XXXV. refers to disputes de facto, not disputes de jure-not to controversies about any law, but to controversies about conditions of labour and of life. We have no right to cut down the meaning of the words of sub-sec.

MOORE XXXV., or to read them as if they were "prevention and settlement

of industrial disputes extending &amp;. SO far as they have not been settled by State laws," or as if the words were inserted "subject to State laws" or as if the words were disputes recognized by State law." As soon as a dispute in fact extends to two States, it passes beyond the control of any State law; the federal power applies, and is absolute, plenary, unlimited-that is to say, un- limited except by the words of sub-sec. XXXV. and that power has no reference to the legality or illegality of the demands, no refer- ence to the provision of any State law. As Marshall C.J. said in Gibbons v. Ogden 1 This power, like all others vested in Congress, is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations, other than are prescribed in the Constitution

the sovereignty of Congress, though limited to certain specified objects, is plenary as to those objects." In the third place, it is a mistake to treat an industrial dispute as if it were an ordinary litigation as to private rights between private persons, or to treat the award as if it were a judgment as to existing rights. For the claim and the award are not based on any right known to the law. They are based on an assertion that such and such terms ought to be the law, and are not; and the foundation of the relief is not the mere interest of the workers, but the public interest in peace, order and good government. Even if the New South Wales Court has settled a dispute between A. and X, from the point of view of New South Wales, the dis- pute between A. B. and C. on one side and X. Y. and Z. on the other has never been settled from the point of view of the Aus- tralian public. There is no res judicata or estoppel as against the public of Australia. The federal power is conferred for the peace, order, and good government of the Commonwealth," of the Commonwealth public, who suffer materially while the disputants are in fact contending, and who suffer as much if some

19 Wheat., 1, at pp. 196-7. 8 CLR 547

of the combatants are acting in defiance of a State award as if they were not. The interest of the greater public is treated as the dominant consideration, and the law of the greater public as the dominant law. The federal law applies and is paramount, as soon as it is shown that there is an industrial dispute in fact, AUSTRALASIA and that it really extends to two States at least. Given these conditions, there is nothing to be found elsewhere in the Consti- tution to modify or whittle down the absolute power of the Federal Parliament to make any provision that it thinks fit for conciliation or arbitration for the prevention or settlement of the dispute; given the power, the federal law may be made, and must be interpreted as if there were no State law touching the subject; and given the federal law, any State law inconsistent therewith becomes invalid to the extent of the inconsistency. On this subject, and on the inference drawn from United States v. Dewitt (1), I agree with what has been fully stated by my brother Isaacs.

As for sec. 30 of the Act, I take it as showing, beyond cavil, that the Federal Parliament intended to confer on the awards of the Court of Conciliation that paramountcy which the Constitu- tion enabled the Parliament to confer. It might otherwise have been urged, possibly, that whatever powers the Federal Parlia- ment might have given to the Court, it has not given to it as yet any power to issue commands contrary to State awards. The language of sec. 30 is obviously copied from sec. 109 of the Con- stitution, and is meant to have a like effect, but in favour of federal awards instead of federal acts. I take it that secs. 23, 25 and 30 are complementary of one another. The Court of Arbi- tration is to investigate " all matters affecting the merits of the dispute (including, no doubt, any State awards); is to " act according to equity, good conscience, and the substantial merits of the case' is not to be "bound by any rules of evidence" and, under sec. 30 is not to be bound by State law or State award or Wages Board determination. I see no reason for doubting that the Federal Parliament was as competent to enact sec. 30 as secs. 23 and 25.

I am, therefore, of opinion that question 5 should be answered in the affirmative, whether the award is to operate immediately

8 CLR 548

or at some future time. But it is my duty to add that I cannot treat a State award as standing on the same footing as an agree- ment t-solemn or not. It is not the New South Wales award that imposes the obligation to pay certain wages, or to observe

AUSTRALASIA certain conditions. It is the State law that imposes the obliga-

MOORE tions, in accordance with the findings of the Court. Nor is the

award in any sense an agreement. The obligation is created from above by a superior authority-not by consent of the parties inter se. It is created by the State Act, which allows the award to be made. The award is made by a tribunal like the Inter-State Commerce Commission in the United States, which finds what ought to be done, and Congress gives effect to the finding as law. I base my opinion on the ground that, when a Federal Act within the scope of the federal power comes into col- lision with a State Act within the scope of the State power, the Federal Act prevails to the extent of the inconsistency.

Question 5A. For the reasons given under question 5, I am also of opinion that question 5A, as to the determination of Victorian Wages Boards, must be answered in the affirmative in the same way as question 5. I have not omitted to consider the distinction between Wages Boards which settle wages (mini- mum wages)-make a common rule as to wages-and Arbitration Courts which settle disputes. The Wages Board determinations may be treated as if they were contained in a Schedule to an Act, and as having all the binding force of a State Act regulating wages. But they have no greater force; and if a State Act, or any regulation made thereunder, conflict with a Federal Act or with the award of a Federal Court created by the Federal Parliament, it becomes invalid SO far as it is inconsistent. If two railways cross, and if the trains on each-having different points of departure and of destination-come to the point of junction at the same moment, one must give precedence to the other. So it it is with federal and State powers. If, for instance, a State determination prescribes that the day of State elections should be a close holiday, whereas the federal award says that the day should be a day for work, it would be the duty of the employés to work on that day. On this subject-that of collision between a State law under State power A., and a federal law under the

8 CLR 549

federal power B., both laws being validly made under their appropriate powers-we have fortunately plenty of guidance in the rich experience of the Courts of the United States. The very recent case of Asbell v. Kansas 1 shows that an inspection law as to cattle entering a State, a law made under a State's undoubted powers-its " police powers" as they are termed-is invalid SO far as it is inconsistent with a federal law made under the federal powers as to Inter-State commerce. The State has no power to regulate Inter-State commerce; the federal Congress has no power to legislate for the health of the cattle of a State; and if and SO far as laws made by the appro- priate legislatures, under their distinct power, collide in any way, the federal law prevails. In that case the State law was held valid as it allowed cattle to enter on the certificate of the federal officers as to health. The federal bureau of animal industry," constituted under the Inter-State powers, may be fairly regarded as analogous to the Federal Court of Conciliation, constituted under the power as to two-State disputes. See also Camfield V. United States 2 Employers' Liability Cases 3; Gulf, Colorado and Santa Fé Co. v. Hefley 4; Morgan's Steamship Co. V. Louisiana Board of Health 5.

The Judicial Committee of the Privy Council have frequently applied the same principle to the Canadian Constitution, although there is no section SO express in the Canadian Constitution as our sec. 109. The Dominion Parliament has power to make laws for 'through railways; and under that power it passed a law affecting the labour conditions of the railway servants-it pro- hibited railway companies having "through" railways from "contracting out" of the liability to pay damages for personal injury to their servants. The Provinces of Canada have exclu- sive power to enact laws as to "civil rights"; and it was urged that the Dominion Act was invalid, as trenching upon the Pro- vincial powers. The Privy Council said that two propositions had been established First, that there can be a domain in which Provincial and Dominion legislation may overlap, in which

1209 U.S., 261. 2167 U.S., 518. 3207 U.S., 463. 4158 U.S., 98. 5118 U.S., 455, at p. 464. 8 CLR 550

case neither legislation will be ultra vires, if the field is clear:

and, secondly, that if the field is not clear, and in such a domain the two legislations meet, then the Dominion legislation must prevail." It was conceded that the law dealt with a civil right;

AUSTRALASIA but, as it was truly ancillary to railway legislation, the law was

MOORE valid: Grand Trunk Railway Co. of Canada v. Attorney-

General of Canada 1. This case has been followed up recently by a case in which both Parliaments had actually legislated and the same principle was applied. A Dominion Act incorporated A. company for the purpose inter alia of manufacturing and sup- plying electricity. A subsequent Provincial Act of Quebec incorporated B. company and granted to it the exclusive right of producing and selling electricity within 30 miles from a certain village. Company A. began to establish works within the 30 miles: and company B. applied for an injunction. It was urged that the legality of company A.'s action in any Province must be subject to the law of that Province. But the Privy Council held that "where, as here, a given field of legislation is within the competence both of the Parliament of Canada and of the Pro- vincial legislature, and both have legislated, the enactment of the Dominion Parliament must prevail over that of the Province if the two are in conflict" La Compagnie Hydrautique de St. François v. Continental Heat and Light Co. 2.

No one is more fully sensible than I am of the gravity of this power of the Federal Court of Conciliation to impose labour con- ditions inconsistent with the labour conditions imposed by the State, or under a State's authority. But again I say that the gravity of the power is no ground for saying that it does not exist; and if it can be exercised as against a State award, as is held by all the members of this Court, there is no ground for denying the power as against a State Wages Board determination. The determination is made binding by the State Act alone, as the State award is made binding. Both award and determination have as high authority as a State law can give them, but no higher and the supremacy of the federal law, made under a federal power, is beyond doubt. I admit that there is danger of abuse-danger, e.g., that an organization beaten before a State tribunal may try

1(1907) A.C. 65, at p. 68. 2(1909) A.C., 194, at p. 198. 8 CLR 551

what seems virtually an appeal to the federal tribunal. It is not in truth an appeal because there must be new parties disputing, and these parties must consent to concur in the dispute. But we may look at the consequences of denying the power to the federal Court, the position is still graver. Deny the power, and AUSTRALASIA if there be a shipping dispute, a bitter quarrel raging in fact in all JAMES the parts of the Commonwealth and throwing into confusion all PROPRIETARY industries, the federal Court would be powerless if each State has its separate laws as to wages, &amp;., of seamen, there would be no power which could settle the shipping dispute as a whole on one consistent scheme. Or if New South Wales had such laws, and the other States had not, the New South Wales laws, even if ineffective and unworkable, would prevent the effective applica- tion of the federal powers. For nothing is more prolific of indus- trial disturbance than inequalities among men doing the same work, even when the inequalities are found as between different cities. To say the least, the dangers of one interpretation may be set off against the dangers of the other interpretation; and, honours being easy, we may fitly recur to our humbler function of finding the meaning of the words of the Constitution.

Question 6. I have been rather puzzled with regard to State industrial agreements. I have not been troubled as to the power of the Federal Parliament to endow the Court of Conciliation with power to make an a'ward inconsistent with such an agree- ment. My difficulty lay in sec. 30 of the Act (and cf. sec. 80). Parliament said, in sec. 30, that when a State law, or an award, order or determination of a State industrial authority is incon- sistent with an award or order made by the Court, the latter shall prevail but it has said nothing about State industrial agree- ments; and an argument may be based on the lines of expressio unius exclusio alterius. But the reason for the omission is probably that it was not thought necessary to assert the Court's powers as against mere agreements. Compulsory arbitration- and it is admitted that Parliament could make arbitration com- pulsory, enforceable as to its findings--necessarily interferes with agreements, interferes with what is called freedom of contract." For instance, it compels an employer to pay more to a man whom he hires than he would agree to pay if he were free to make the

8 CLR 552

A. best bargain that he can. You cannot have compulsory arbitra-

tion without invading agreements, or without dictating the terms of the agreements to be made. An agreement, whether industrial or not, is between parties it is not a command of the State, or of those acting under the State's authority whereas State laws,

MOORE State awards, State Wages Boards' determinations are commands

of the State, and might perhaps-but for sec. 30-have been treated as outside the power conferred by the Federal Parliament on the Court of Conciliation. I am therefore of opinion that this question also should be answered in the affirmative-in the same manner as question 5.

Question 7. Assuming this agreement-unregistered-t be enforceable (and I understand that it has been actually the sub- ject of an action), I answer this question also in the affirmative, in the same manner as question 5.

Question 8. The difficult aspects of this question have not been presented to us by counsel for the Queensland Pine Co. SO strenuously as before me in the Court below. The arguments have not been presented which I anticipated. But although think that the matter may hereafter have to be more fully con- sidered, I am not prepared to dissent from my learned colleagues, and I concur, doubtingly, in the affirmative answer.

Questions answered accordingly. Solicitor, for the claimants, Frank Brennan. Solicitors, for the respondents, Derham &amp;Derham; Blake &amp;Riggall; C. Powers, Crown Solicitor for the Commonwealth J. V. Tillett, Crown Solicitor for New South Wales.