Ince Brothers v Federated Clothing and Allied Trades Union

Ince Brothers and Cambridge Manufacturing Co. Pty. Ltd. (the applicants) sought a decision from the High Court of Australia under section 21AA of the *Commonwealth Conciliation and Arbitration Act 1904-1921*. The applicants were respondents in separate industrial disputes before the Commonwealth Court of Conciliation and Arbitration, in which the Federated Clothing and Allied Trades Union was the claimant. Awards had been made in both disputes prior to the applications to the High Court. The applicants sought to challenge the validity of certain clauses within these awards, raising questions about whether an industrial dispute existed with respect to the subject matter of those clauses and whether the Arbitration Court had jurisdiction to make such awards.

The central legal issues before the High Court were: (1) whether an application under section 21AA could be made after an award had been handed down by the Commonwealth Court of Conciliation and Arbitration; (2) whether, if an award had been made, the High Court retained jurisdiction to determine questions regarding the existence of the industrial dispute at the time of its submission to the Arbitration Court; and (3) whether the High Court had a discretion to refuse to adjudicate on such questions once it had jurisdiction.

A majority of the High Court, comprising Knox C.J., Gavan Duffy and Starke JJ., held that an application under section 21AA could be made after an award had been issued, and that such an award was an award in relation to which a question could be submitted for decision. They reasoned that a question of law arising in relation to an award could only arise after the award was made, and therefore the period for making such an application must extend beyond the making of the award. They also held that the High Court had no discretionary power to refuse to adjudicate on questions within its jurisdiction under section 21AA. However, Isaacs, Powers, and Rich JJ. dissented on the first point, holding that an application under section 21AA regarding the existence of a dispute could not be made after an award had been made, as the submission to the Arbitration Court would have ceased to exist. They viewed the purpose of section 21AA as a means to clarify jurisdictional issues *before* an award was made, to prevent the disruption caused by later challenges.

The majority of the Court, including Isaacs, Powers, Rich, and Starke JJ. (with Knox C.J. and Gavan Duffy J. dissenting on this point), agreed that the relevant time for determining whether a dispute existed was the time of the application to the High Court, not the time of submission to the Arbitration Court. Ultimately, the majority of the Court (Isaacs, Powers, Rich, and Starke JJ.) answered the primary question of jurisdiction in the negative, finding that the High Court did not have jurisdiction to hear the applications as they were made after the awards were issued.