R v Hamilton Knight; Ex parte The Commonwealth Steamship Owners Association

[1952] HCA 38

86 CLR 283

be exercised ' with great care and jealousy extreme caution'" The purpose of the present action is not to obtain a construction of a contract which will determine the future rights and obligations of the parties, but to enforce the completion of a sale pursuant to the exercise of an option of purchase, and it does not appear to us to be a case in which a declaration of right should have been made except as incidental to the enforcement of the contract either by way of specific performance or damages.

As we have said, counsel for the appellants did not in the end press either the defence of mutual mistake or of a subsequent variation of the indenture, but they were argued to some extent and we think that we should express an opinion upon them. It has sometimes been said that the power of the Court to rectify a contract on the ground of mutual mistake is confined to cases where there was an actual concluded contract antecedent to the instrument which is sought to be rectified. The law was SO stated by James V.C., as he then was, in MacKenzie v. Coulson 1 and by this Court in Australian Gypsum Ltd. &Australian Plaster Co. Ltd. v. Hume Steel Ltd. 2. But in Shipley Urban District Council V. Bradford Corporation 3 Clauson J., as he then was, held that the statement of James V.C. in MacKenzie v. Coulson 4 did not warrant the suggestion that the jurisdiction of the Court cannot be exercised SO as to rectify an instrument which clearly does not give effect in some respect to the concurrent intention of the parties existing at the date of its execution unless a previously existing contract can be proved. The high authorities cited by Clauson J. 5 appear to us to show that this is right. The state- ment of the law in Australian Gypsum Ltd. &Australian Plaster Co. Ltd. v. Hume Steel Ltd. (2), as in MacKenzie v. Coulson (4), should be read in the light of the facts of that case and confined to cases where the mutual mistake is sought to be established by reference to the terms of a previous contract. The views expressed by Clauson J. were completely adopted by Simonds J., as he then was, in Crane v. Hegeman-Harris Co. Inc. 6. His Lordship there gave judgment for the defendant on a counter- claim to rectify a contract in an action brought to enforce an award of an arbitrator 7. His Lordship said " ' with his " (i.e., Clauson J.'s) " reasoning I wholly concur, and I can add nothing to his authority in the matter, except that I would say that, if

1(1869) L.R. 8 Eq. 368, at p. 375. 2(1930) 45 C.L.R. 54. 3(1936) Ch. 375. 4(1869) L.R. 8 Eq. 368. 5(1936) Ch., at pp. 394, 395. 6(1939) 1 All E.R. 662. 7(1939) 1 All E.R., at p. 664. 86 CLR 284

it were not so, it would be a strange thing, for the result would be that two parties binding themselves by a mistake to which each had equally contributed, by an instrument which did not express their real intention, would yet be bound by it " There was an appeal 1, and the Court of Appeal only dealt specifically with the contention that an action cannot be brought to rectify the contract after an award. The Court of Appeal had no time for this con- tention and dismissed the appeal without calling on counsel for the respondent. But Sir Wilfrid Greene M.R., as he then was, at the end of his judgment said "I have thought proper to put in my own language my reasons for saying that this appeal should be dismissed, but I might have been content to say that the judg- ment of Simonds J., both on law and on fact, is one with which I am in entire agreement" " 2. It seems to us to be clear that the Court of Appeal must have agreed with Simonds J. that Clauson J. had correctly stated the law in Shipley's Case 3, otherwise they should have reversed the judgment on the counterclaim, and we are of opinion that this law should be followed in the Australian Courts. We approach the present case on this basis. But we cite the words of Simonds J. "let it be clear that it is not sufficient to show that the written instrument does not represent their common intention unless positively also one can show what their common intention was 4. We can find no concurrent in- tention of the parties existing at the date of the contract of 12th March 1946 that the option was to be an option exercisable at any time during the first year of the lease but only to be completed at the end of that year. At the date of the contract that intention was at most only the intention of the appellants. The respondent never had such an intention. She had at most an intention at an early stage of the negotiations that the option should be an option to be exercised during the first year and immediately completed upon its exercise. But even that intention was not her intention at the date of the contract. Her intention then was in accordance with the contract.

The defence that the option contained in the indenture was subsequently varied by the agreement of the parties also fails. It appears from the correspondence that the solicitors for both parties thought that a deed could not be varied by a subsequent contract but only by another deed. This was wrong (Halsbury, 2nd'ed., vol. 10, p. 232), but we cannot find any evidence of any

1(1939) 4 All E.R. 68. 2(1939) 4 All E.R., at p. 72. 3(1936) Ch. 375. 4(1939) 1 All E.R., at p. 665. 86 CLR 285

subsequent contract to vary the deed in consideration of the payment by the appellants to the defendant of the sum of £219 15s. Od. or any other consideration. The sum of £219 15s. Od. represented the amount out of the deposit of £500 retained by the appellants as damages for breach of Hackwill's covenant to keep the hotel in repair. The respondent throughout the subsequent negotiations always claimed that she was entitled to this sum irrespective of any dispute as to the proper form of the option. She eventually issued a summons in the county court to recover it. It was in consideration of the respondent on payment of the £219 15s. Od. agreeing to withdraw the summons and bear her own costs of the summons that the parties approached an agreement for a variation of the option in the indenture. The variation was that the respondent was to have the right to exercise the option in the first year of the lease, completion of the sale to take place immediately on the exercise of the option, but before they reached a complete consensus ad idem the respondent changed her solicitor at the crucial moment and the parties then disagreed on the question whether as the respondent contended the option was to be in addition to or as the appellants contended in substitu- tion for the option contained in the indenture. This disagreement was never resolved, SO that no subsequent contract was ever made to vary the option in the indenture.

For these reasons we are of opinion that the appeal should be dismissed with costs.

Appeal dismissed with costs. Solicitor for the appellants, C. E. Coy. Solicitors for the respondent, Cornwall, Stodart &Co.

86 CLR 286

Manufacturing

OF AUSTRALIA. [HIGH COURT OF AUSTRALIA.]

THE QUEEN

HAMILTON KNIGHT AND OTHERS Ex PARTE THE COMMONWEALTH STEAMSHIP OWNERS

ASSOCIATION. Industrial Arbitration (Cth.)-Award-Matters which may be included-Duration

-Conciliation commissioner-Jurisdiction-Employees in merchant service- Intervals off duty-Pensions-Compensation for injury-Whether jurisdiction excluded by Navigation Act (Cth.)- " Annual or other periodical leave with pay "__" Industrial dispute"-" Industrial matters -Prohibition-Concilia- tion and Arbitration Act 1904-1951 (No. 13 of 1904-No. 58 of 1951) 88. 4, 13 (1) (c), 48-Navigation Act 1912-1950 (No. 4 of 1913-No. 80 of 1950), ss. 127, 132.

Logs of claims served on their employers by organisations of employees engaged in sea-going duties contained claims for intervals off duty which an employee might spend ashore. These intervals were computed with the aim of giving to sea-going employees the same period of time off as that which is enjoyed by an employee who works on land, having regard to weekends and to public holidays.

Held that the claims did not seek awards providing for annual or other periodical leave with pay " within the meaning of S. 13 (1) (c) of the Con- ciliation and Arbitration Act 1904-1951; and therefore, the jurisdiction of a conciliation commissioner to deal with the claims was not excluded.

The logs of claims also made claims for pensions for employees who had served for a certain time and who had otherwise fulfilled certain requirements.

Held by Dixon C.J., McTiernan, Williams and Fullagar JJ. (Webb and Kitto JJ. dissenting) that the claims sought awards which could not validly be made: by Dixon C.J. and Fullagar J. because any award giving effect to the claims would be in contravention of S. 48 (1) of the Conciliation and Arbitration Act 1904-1951 which provides that an award shall, subject to 8. 49 which deals with setting aside or varying an award, continue in force for a period to be specified in the award, not exceeding five years from the

86 CLR 287

date upon which the award comes into force by McTiernan and Williams JJ. because the claims did not deal with any matter which was an industrial matter" within the meaning of S. 4 of the Conciliation and Arbitration Act

THE QUEEN

The logs of claims also made claims for payment of compensation to an

KNIGHT;

employee for personal injury by illness or accident arising out of or in the course of the employment. The right to compensation was not to arise until the contract of employment had been determined and the compensation was to be that provided for under the Seamen's Compensation Act 1909, 1911, 1938, 1947 as amended " The Seamen's Compensation Act 1911-1949 does not, of its own force, apply to the employees who made the claims in the logs.

Held by Dixon C.J., Webb and Kitto JJ. (McTiernan and Williams JJ. dissenting, Fullagar J. expressing no opinion) that the claim dealt with a matter which was an industrial matter" within the meaning of S. 4 of the

Held, further, by Dixon C.J., Webb and Kitto JJ. that SS. 127 and 132 of the Navigation Act 1912-1950 did not constitute an exhaustive statement of the liabilities which were to be imposed on shipowners in consequence of illness or accident in the case of masters, seamen or apprentices and accord- ingly the jurisdiction of the conciliation commissioner to make an award giving effect to the claim was not excluded.

Held, further, by Dixon C.J. and Kitto J. (Fullagar J. dissenting) that the difficulty or impossibility of giving effect to the claim for compensation as framed, namely, that the compensation should be that provided under the Seamen's Compensation Act was not a ground for granting a writ of prohibition.

R. v. The Commonwealth Court of Conciliation and Arbitration; Ex parte Jones: Ex parte W. Cooper &Sons (Builders' Labourers' Case) (1914) 18 C.L.R.

ORDER NISI FOR PROHIBITION.

The Merchant Service Guild of Australasia and the Australian Institute of Marine and Power Engineers were associations of employees registered under the Conciliation and Arbitration Act 1904-1951. The Commonwealth Steamship Owners Association was an association of employers registered under the same Act. On 30th June 1951 the Merchant Service Guild of Australasia served a log of claims on the Commonwealth Steamship Owners Association. On 19th September 1951, the Australian Institute of Marine and Power Engineers served a log of claims on the Commonwealth Steamship Owners Association.

Intervals off Duty. Clause 27 of the log of claims served by the Australian Institute of Marine and Power Engineers contained this claim and was as follows " (a) Every employee shall be entitled to be absent from his vessel in port during intervals,

86 CLR 288

each to be of 24 consecutive hours, and the number of such intervals and the place and time of giving them shall be as follows (i) In the case of vessels voyaging between places in Australia, and in the case of vessels voyaging to places beyond Australia, if the period of absence from the home port or the port of engagement of the employee does not exceed two months, for each complete month of the employment, including time spent on leave, four intervals to be given at the home port only and five intervals to be given at the home port or from midnight to midnight on Sundays or public holidays at other ports named in sub-clause (e) hereof. Provided that in the case of a vessel which is absent from the home port for at least twenty-five complete consecutive days, intervals accrued due for the first calendar month of such absence shall, if given at the home port during the next succeeding month and if given after the four intervals to be given for that succeeding month at the home port have been given, be deemed to have been given in the month in which they accrued due. (ii) In the case of vessels voyaging to ports beyond Australia and absent from the home port for a period exceeding two months, but returning within six months, in and for each period of six months or lesser period of complete months of employment, including time spent on leave, intervals at the rate of twenty-four per six months to be given at the home port only and intervals at the rate of thirty per six months to be given either at the home port or from midnight to midnight on Sundays or public holidays at other approved loading and discharg- ing ports in Europe, Asia, East Coast of America, West Coast of North America, Capetown or Durban in Africa, or New Zealand. (iii) In the case of vessels absent from the home port of the employee for a period exceeding six months on voyages extending beyond Australia in and for each year of such employment or lesser period of complete months of the employment, including time spent on leave, intervals at the rate of four per month shall be given at the home port and intervals at the rate of five per month shall be given either at the home port or at approved loading or discharging ports of the voyage in Europe, Asia, the East Coast of America, or the West Coast of North America, or New Zealand, Capetown or Durban.

(b) In the case of vessels referred to in sub-clause (a) (ii) and (iii) on the arrival of the vessel at the home port of the employee, unless the employee is being sent to take his annual leave, to which the intervals due to him are added, he shall (at least during the stay of the vessel) be granted complete intervals of twenty-four hours during not less than 50 per cent. of the time SO spent by the vessel, and the balance shall be granted within six months in the

86 CLR 289

case of sub-clause (a) (ii) and within one year in the case of sub- clause (a) (iii).

THE QUEEN

(c) In the case of an employee serving for any period less than one or more complete months, the employee shall receive for every

KNIGHT;

2.3 days of the employment not forming part of a complete month one additional home port interval.

(d) (i) If any of the intervals to be given at the home port only be not given, the employee shall be paid therefor at double his daily rate. (ii) If any of the other' intervals be not given, the equivalent of such intervals not SO given shall be allowed as leave either cumu- lative with the annual leave if granted within a period of six months from the date when the first of such ungranted intervals arose, or in a consecutive period of leave within six months of the date when the first of such ungranted intervals arose. (iii) Unless the said home port and 'other' intervals are granted in accordance with the terms of the above sub-clauses they shall be paid for at the rate of double the daily rate for the home port intervals and at the rate of one and a half times the daily rate for the 'other' intervals. The employee shall be SO paid immediately upon the expiry of the period within which the home port intervals should have been granted, and six months from the date when the first of such 'other' intervals arose.

(e) The ports where other intervals may be granted on Sundays or Public Holidays in the terms of sub-clauses (a) (i) (ii) and (iii) hereof shall be strictly confined to the undermentioned places and no other: In Australia Darwin, Brisbane, Sydney, Newcastle, Melbourne, Port Adelaide, Fremantle, Hobart and Launceston. In New Zealand Auckland, Napier, Wellington, Lyttleton and Dunedin. Elsewhere: At main ports or ports with a population of 20,000 or more white inhabitants.

(f) Where any interval or group of intervals given under this clause does not comprise a complete day or complete days from midnight to midnight, the hours of interval on the day of com- mencement and on the day of termination of the interval or group shall, if they together aggregate at least twenty-four in number, be treated as an interval but if they are SO treated as an interval all time worked on such days of commencement and termination shall, for the purpose of calculating overtime, be treated as if worked on one day only.

(g) For the purpose of this Clause-The home port shall be the home port prescribed by Clause 29, but another port within the voyage of the vessel may be treated as the home port if approved in writing by the Secretary or other authorised Officer of the

86 CLR 290

Institute, or if approved by the Registrar Provided that in the case of a vessel which has no fixed itinerary, or which periodically for unfixed duration changes its terminal or intervening ports on some of its voyages, or where none of its terminal or intervening ports other than the home port under Clause 29 is a reasonably suitable permanent residential port for the employee, having regard to the place where the employee is usually engaged, the provision for fixing the home port within the voyage of the vessel shall not apply; and upon such a vessel, unless the intervals are given at the home port as prescribed by Clause 27, the employee shall be paid for all home port intervals not granted within the month in which they accrue due and the vessel shall be deemed to come within the provisions of paragraph (i) of sub-clause (a).

(h) Every employee shall be entitled to be notified by the employer three hours at least before the time of commencement of his interval that he is required to take the interval, and where, the employee having been SO required to take the interval, the full three hours' notice has not been given, the extent to which the notice is less than of three hours shall be added to and given in a consecutive period with the interval.

(i) If an employee performs duty on a Sunday or Public Holiday in his port of residence he shall be paid at the prescribed overtime rate and be given in his port of residence an additional interval but if an employee performs duty on a Sunday or Public Holiday in a port other than his port of residence he shall be paid at the prescribed overtime rate, but the interval SO worked shall be credited against him as one of his intervals under Clause 27 of this Award.

(j) The intervals prescribed, and allowed for, in the above sub- clauses are based upon the assumption there are only ten Public Holidays, therefore for every additional Public Holiday hereinafter proclaimed one additional home port interval shall be allowed in the month it arises under sub-clause (a), (i), or in each six months under sub-clause (a) (ii) or in each year under sub-clause (a) (iii)." Clause 22 of the log of claims served by the Merchant Service Guild of Australasia was similar except that it did not contain any provision corresponding to cl. 27 (i).

Compensation for injury. Clause 32 (3) and (4) of the log served by the Australian Institute of Marine and Power Engineers and cl. 28 (3) and (4) of the log served by the Merchant Service Guild of Australasia made this claim as follows: (a) If personal injury by illness or accident arising out of or in the course of the employ- ment be caused to an employee, the compensation payable by the employer shall be that provided for under the Commonwealth

86 CLR 291

Seamen's Compensation Act, 1909, 1911, 1938, 1947 (as amended). Except that-(i) For the first three months of the duration of the

THE QUEEN

incapacity in lieu of what would be payable under the said act in respect to the said period the compensation shall be a sum equal to the pay which he would have earned had he been able to render the agreed service in the capacity obtaining at the time of the accident. (ii) Where death results from the injury there shall be paid to the personal representatives of the deceased a sum equal to four years' pay computed at the rate of the earnings of the ASSOCIATION. employee at the time of the accident, with a right to such earnings

being computed at the rate of the earnings over the last three months of such employment or lesser period if the employment in that capacity has not extended for three months.

4. The right to compensation under this Clause shall not com- mence until the contract of employment under Clause 37 of this Award has been determined, and the employee is no longer entitled to his wages under the Award "

Pensions. Clause 39 of the log served by the Australian Institute of Marine and Power Engineers and cl. 34 of the log served by the Merchant Service Guild of Australasia made this claim as follows "(a) An Agreement or an Award shall be made indeter- minate SO far as its duration is concerned, but subject to variation by mutual consent between the parties or by order of the Arbitration Court containing the undermentioned provisions for the payment of pensions.

(b) Notwithstanding that the employee may be retired by the employer, the relationship of employer and employee shall continue while under the provisions set out hereunder; such employee is entitled to monetary allowance during the time he is not actually working.

(c) Upon attaining the age of 65 years or earlier, if, on the grounds of infirmity, he becomes unable to render the agreed service, the employee shall be entitled to a pension upon the undermentioned terms and qualifying period: (i) After fifteen years' service to an annual pension of one-half of the annual salary he was earning over the last twelve months of his working period. (ii) After ten years' service to an annual pension of one-quarter of his annual salary in the last year, and increasing by one-fifth of such salary for each year of service between ten and fifteen years.

(d) Such pension shall be adjusted quarterly in accordance with the retail price index numbers applied by the Commonwealth Arbitration Court, but SO as to assure to the pensioner that the whole of his pension shall be adjusted in a manner that will assure

86 CLR 292

to him the same purchasing power as the pension possessed when first granted to him.

(e) In the event of the employee predeceasing his wife, then the widow shall be paid one-half of the pension to which the employee would have been entitled "

Industrial disputes which arose out of the claims made by the logs were heard together by Hamilton Knight, a conciliation com- missioner appointed under the provisions of the Conciliation and Arbitration Act 1904-1951.

On 12th December 1951, the Commonwealth Steamship Owners Association obtained an order nisi for a writ of prohibition directed to Hamilton Knight and the Merchant Service Guild of Australasia and the Australian Institute of Marine and Power Engineers, to prohibit the conciliation commissioner from further hearing the disputes in SO far as the disputes exclusively related to claims made in the clauses of the logs which are set out above, and to prohibit the other respondents from further proceeding with the claims made in any of the said clauses. The grounds of the order nisi were as follow: (1) as to the claims made in the said cll. 22 and 27 (intervals off duty) that each of the said claims is a claim for an award pro- viding for or altering a provision for annual or other periodical leave with pay: (2) as to the claims made in the said cll. 28 (3), (4) and 32 (3), (4) (compensation for injury) (a) that the dispute in respect of each of the said claims is not an industrial dispute within the meaning of the Conciliation and Arbitration Act 1904-1951 in- asmuch as it is not a dispute in relation to any industrial matter within the meaning of the said Act; (b) that each of the said claims is a claim for an award providing for or altering a provision for sick leave with pay: (3) as to the claims made in the said cll. 34 and 39 (pensions) that the dispute in respect of each of the said claims is not an industrial dispute within the meaning of the Conciliation and Arbitration Act 1904-1951 inasmuch as it is not a dispute in relation to any industrial matter within the meaning of the said Act.

E. H. Hudson Q.C. (with him B. B. Riley), for the prosecutor. The claim in respect of intervals off duty is a claim for an award which provides for or alters a provision for annual or other periodical leave with pay within the meaning of S. 13 (1) (c) of the Conciliation and Arbitration Act 1934-1951. It is leave granted after a period of work and recurs periodically. Sub-clause (a) of the claims in respect of pensions makes a claim for an indeterminate award. This is contrary to S. 48 (1) of the Conciliation and Arbitration Act

86 CLR 293

1904-1951. Sub-clause (b) recognizes the second difficulty in the way of securing an award of a pension and, to overcome the necessity

THE QUEEN

for the existence of the relationship of employer and employee at any time when rights or benefits accrue in favour of the employee KNIGHT;

under the award, provides for a notional or fictional employment when in fact there is none. This claim does not give rise to an "industrial dispute" as defined in S. 4 of the Conciliation and Arbitration Act 1904-1951 because "industrial dispute" means

as to industrial matters" and "industrial ASSOCIATION. matters" is defined to mean all matters pertaining to the relations

of employers and employees ". No such matters can exist unless the relationship exists. Matters which will arise in future can, of course, be provided for, but only to the extent that the relationship continues into the future. There cannot be matters which " belong to " or are "in the sphere of a relationship that does not exist. All the specified matters by way of extension of the definition of "industrial matters" in S. 4 are likewise limited by the same requirement. Although in certain cases an award may contain a provision in the nature of a covenant restraining an employee from competing with a former employer after termination of the employ- ment yet not every stipulation which might be introduced between parties would constitute an "industrial matter", e.g., a bank clerk might agree that he would not gamble, yet it could not constitute an "industrial matter". See, e.g., Clancy v. Butchers' Shop Employes Union, per O'Connor J. 1. [He referred to Federated Gas Employees Industrial Union v. The Australian Gas Light Co. per Dethridge C.J. 2 ]. The claim in respect of compensation for injury does not give rise to an "industrial dispute" since, here also, the right does not arise until the contract of employment has been determined and the relationship of employer and employee is no longer in existence. Alternatively, sub-cl. (3) of this claim makes a claim for sick leave with pay within the meaning of S. 13 (1) (c) of the Conciliation and Arbitration Act 1904-1951.

G. Gowans Q.C. (with him C. I. Menhennitt) for the respondents. The claim in respect of intervals off duty is not a claim for 'annual or other periodical leave with pay". "Other periodical leave' should be read ejusdem generis with " annual leave". The meaning would then be periodical leave in the nature of annual leave. The claim made here is for leave which is in the nature of the breaks from work which occur on land at weekends and on holidays and cannot be described as "periodical leave in the nature of annual

1(1904) 1 C.L.R. 181, at p. 205. 2(1936) 38 C.A.R. 653, at p. 662. 86 CLR 294

leave" The principle of compensation for Sundays and public holidays lost is not new. [He referred to Merchant Service Guild of Australasia v. Commonwealth Steamship Owners' Association 1; R. v. The Commonwealth Court of Conciliation and Arbitration Ex parte Allen Taylor &Co. Ltd.; Ex parte the Gulf Steamship Co. Ltd.; Ex parte William Holyman &Sons Ltd. 2; Merchant Service Guild of Australasia v. Commonwealth Steam-Ship Owners' Association 3 Merchant Service Guild of Australasia v. The Commonwealth Steam-Ship Owners' Association 4; Merchant Service Guild of Australasia v. The Adelaide Steam-Ship Co. Ltd. 5; The Commonwealth Steamship Owners' Association v. The Austral- asian Institute of Marine and Power Engineers 6; Merchant Service Guild of Australasia v. The Commonwealth Steamship Owners Association 7.] Annual leave is a period of continuous leave granted at, or near, the end of a year of service in respect of, and as compensation for, that service and in order to provide a respite from continuity of work. It differs from long service leave, in its purpose as a recurrent refresher. It differs from holiday leave in the absence of association with individual commemorations or celebrations. It differs from substitutional leave in lieu of holidays in that it is not a substitution for anything. See Federated Storemen and Packers Union of Australia v. G. Adams Pty. Ltd. 8. The claim in respect of compensation for injury does not ask for an award providing for, or altering a provision for,

sick leave with pay". It does not provide for "leave", but does provide merely for a right to compensation after the employment is terminated. 'Pay is of wider meaning than "wages" and includes remuneration for times which are not working times, e.g., holiday pay, but it does not include sums paid after the contract of employment is terminated although such payments have their origin in the contract of employment. Moreover, the clauses do deal with an 'industrial matter". It is a matter which pertains to the relations of employers and employees. [He referred to Australian Tramway Employes Association v. The Prahran and Malvern Tramway Trust, per Isaacs and Rich JJ. 9; R. v. Kelly Ex parte the State of Victoria 10. The conciliation commissioner has power to grant compensation for injury. See the Builders' Labourers' Case 11; Merchant Service Guild of Australasia v. Commonwealth Steam-Ship

1(1911) 6 C.A.R. 6. 2(1912) 15 C.L.R. 586. 3(1916) 10 C.A.R. 214, at pp. 230, 4(1920) 14 C.A.R. 459, at p. 479. 5(1923) 17 C.A.R. 497, at pp. 6(1923) 18 C.A.R. 591, at pp. 7(1941) 48 C.A.R. 577, at p. 603. 8(1940) 44 C.A.R. 178. 9(1913) 17 C.L.R. 680, at p. 693. 10(1950) 81 C.L.R. 64. 11(1914) 18 C.L.R. 224. 86 CLR 295

Owners' Association 1 Federated Gas Employees' Industrial Union v. The Metropolitan Gas Co. 2; Federated Seamen's Union

THE QUEEN

of Australasia v. The Commonwealth Steamship Owners' Association 3; Merchant Service Guild of Australasia v. The Adelaide Steamship Co. Ltd. (4); Commonwealth Steamship Owners' Association V. The Australasian Institute of Marine and Power Engineers 5.] The duty or obligation created at the time of the injury belongs to the relationship of employer and employee as such, even though it is to be discharged after the employment. It is presupposed ASSOCIATION. that incapacity is present when the employment ceases. The

deferment of payment does not make the obligation different in character. Likewise, the payment of compensation to personal representatives is a question arising between employer and employee as to whether the employer will compensate the employee's personal representatives in the case of death from injury. It could be compared with a question between employer and employee as to how the employer will behave to others in close association with the employees, e.g., union inspectors. Federated Clothing Trades of the Commonwealth of Australia v. Archer 6. The claim in respect of pensions likewise deals with industrial matters". After an employee has worked for a certain period for an employer, he is entitled to long service leave, any question about which is admittedly an industrial matter. Long service leave is an industrial matter not merely because it is leave but because it is a reward for long service. For the same reason a question as to pensions constitutes an industrial matter.

B. B. Riley in reply. The following written judgments were delivered :-

DIXON C.J. This is an order nisi for a writ of prohibition directed to a conciliation commissioner.

The conciliation commissioner has before him two industrial disputes or alleged industrial disputes affecting the merchant service. One dispute arises from a log of claims served upon ship- owners by the Merchant Service Guild of Australasia, which is a respondent to the order nisi. The other dispute arises from a log of claims served by the Australian Institute of Marine and Power Engineers, which also is a respondent to the order nisi. Each log

1(1916) 10 C.A.R. 214, at p. 234. (4) (1923) 17 C.A.R. 497, at p. 531. 2(1916) 11 C.A.R. 267, at p. 285. 3(1918) 12 C.A.R. 752, at p. 761. 5(1923) 18 C.A.R. 591, at p. 600. 6(1919) 27 C.L.R. 207. 86 CLR 296

contains claims for (1) pensions, (2) compensation for sickness and accident arising out of or in the course of the employment and (3) intervals off duty.

The purpose of the writ of prohibition that is sought is to restrain the conciliation commissioner from proceeding with the hearing of these claims on the ground that to make an award in respect of them is beyond his authority.

There is no substantial difference between the two logs in the manner in which the claims are respectively framed. It will be enough to deal with the material clauses as they stand in the log of the Merchant Service Guild.

1. Pensions. Clause 34 of that log is as follows: " (a) An Agree- ment or an Award shall be made indeterminate SO far as its duration is concerned, but subject to variation by mutual consent between the parties or by order of the Arbitration Court containing the undermentioned provisions for the payment of pensions.

(b) Notwithstanding that the employee may be retired by the employer the relationship of employer and employee shall continue while under the provisions set out hereunder, such employee is entitled to monetary allowance during the time he is not actually working.

(c) Upon attaining the age of 65 years or earlier, if, on the grounds of infirmity, he becomes unable to render the agreed service, the employee shall be entitled to a pension upon the undermentioned terms and qualifying period (i) After fifteen years' service to an annual pension in one half of the annual salary he was earning over the last twelve months of his working period. (ii) After ten years' service to an annual pension in one quarter of his annual salary in the last year, and increasing by one-fifth of such salary for each year of service between ten and fifteen years.

(d) Such pension shall be adjusted quarterly in accordance with the retail price index numbers applied by the Commonwealth Arbitration Court, but SO as to assure to the pensioner that the whole of his pension shall be adjusted in a manner that will assure to him the same purchasing power as the pension possessed when first granted to him.

(e) In the event of the employee predeceasing his wife, then the widow shall be paid one half of the pension to which the employee would have been entitled'

In my opinion no award giving effect to this claim could be made consistently with S. 48 (1) of the Conciliation and Arbitration Act 1904-1951. That sub-section provides that an award, shall subject to the next succeeding section (which deals with setting

86 CLR 297

aside or varying an award) continue in force for a period to be specified in the award, not exceeding five years from the date upon which the award comes into force.

THE QUEEN

This provision does two things. It requires the conciliation commissioner or court to provide by the award for a definite period which must be named in the award and it limits that period, SO to be named, to a maximum of five years. It is true that sub-s. (2) carries on the operation of the award to the making of the next award, subject to any order to the contrary and to the possibility of an order setting it aside. But that further continuance of the award is independent of the will of the commissioner or court (unless the will is expressed in an order otherwise or an order setting it aside). Otherwise the will of the conciliation commissioner or court is to be addressed to the specified period.

Now it is quite clear that par. (a) of cl. 34 of the log is flatly opposed to the requirements of S. 48 (1). Paragraph (b) does not help. Indeed it appears to be nothing more than an attempt to give to a relationship which has in fact ceased to be that of employer and employee that character in law just because the definition of "industrial matters" makes that expression mean all matters pertaining to the relations of employers and employees. It is a device which can be of no service in bringing pensions within the authority of the commissioner or court if otherwise they are not within it. But par. (a) of cl. 34 has a purpose of a very different kind. It recognizes that a pension provision must go on indefinitely and therefore requires an award that is "indeterminate" in dura- tion. An employee must be secured in his pension rights, however many years may elapse before he becomes sixty-five years of age. An employee who becomes sixty-five must be secured in the payment of his pension however many years it may be before his life drops.

A pension scheme to operate only during the next five years would not make sense and it is not what cl. 34 contemplates. Hence par. (a). An inspection of the remaining paragraphs of cl. 34 is enough to show that this is SO. It must not be forgotten that if at the end of five years a new award were made it could not cover former employees who had retired. A pension scheme therefore could not be carried on by award after award for successive periods of five years. The claim embodied in cl. 34 is for pensions during the remainder of the life of the employee who retires (or of his widow) and that means a claim that after the expiration of the next five years employers shall continue to perform obligations accruing thereafter over future intervals of time. That is a form of relief which by reason of S. 48 (1) an award cannot give. It is

86 CLR 298

not possible to give effect to the whole or any part of the claim which cl. 34 makes and yet keep within the principle of S. 48 (1).

I am therefore of opinion that the conciliation commissioner has no power to give any relief in respect of this claim.

2. Compensation for personal injury by illness or accident arising out of or in the course of the employment.

This matter is the subject of a claim expressed in sub-cl. (3) of cl. 28 of the log of the Merchant Service Guild. The sub-clause is as follows: 3. Compensation.--(a) If a personal injury by illness or accident arising out of or in the course of the employment be caused to an employee, the compensation payable by the employer shall be that provided for under the Commonwealth Seamen's Compensation Act, 1909, 1911, 1938, 1947 (as amended). Except that: (i) For the first three months of the duration of the incapacity in lieu of what would be payable under the said Act in respect to the said period the compensation shall be a sum equal to the pay which he would have earned had he been able to render the agreed service in the capacity obtaining at the time of the accident. (ii) Where death results from the injury there shall be paid to the personal representatives of the deceased a sum equal to four years' pay computed at the rate of the earnings of the employee at the time of the accident, with a right to such earnings being computed at the rate of the earnings over the last three months of such employment or lesser period if the employment in that capacity has not extended for three months".

This sub-clause is followed by a fourth sub-clause which provides that the right to compensation shall not commence until the contract of employment has been determined and the employee is no longer entitled to wages. The sub-clause refers to a provision in the log setting out the conditions claimed concerning the termin- ation of employment.

The first question for consideration is whether the definition of industrial matters" in S. 4 of the Conciliation and Arbitration Act 1904-1951 covers such a claim as that contained in sub-cll. 3 and 4 of the log. The statutory definition of industrial dispute is confined to disputes as to industrial matters. It is therefore necessary that the claim should relate to an industrial matter in the defined sense and if it does not the conciliation commissioner can make no award with respect to the claim. The definition of

industrial matters" begins with general words which make the expression mean all matters pertaining to the relations of employers and employees. These general words are followed by seventeen particular matters which the definition says the expression is to

86 CLR 299

include " without limiting the generality of the foregoing ". Of these seventeen particular matters one (par. (b) ) is " ' the privileges,

THE QUEEN

rights and duties of employers and employees ", and another (par. (h) ) is "the mode, terms and conditions of employment"

I find it very difficult to see why the question whether the em- ployer shall compensate the employee for injuries occasioned to him by reason of the employment does not pertain to the relations of the employer and employee and is not within the descriptions "rights and duties of employers and employees and "terms ASSOCIATION. and conditions of employment".

If a risk of injury is involved in the performance of the work required by the employment the question whether the employer should compensate the employee for injury of that kind appears to me to be fairly within the foregoing parts of the definition: cf. The Builders' Labourers' Case, per Isaacs J. 1. No doubt the degree of connection between the employment and the cause of the injury postulated by any given claim on the subject made by a log requires consideration before the conclusion is reached that the claim does fall within the definition of "industrial matters In the present case the use by the claim of the alternative "or" in the familiar phrase arising out of or in the course of the employ- ment " combined with the inclusion of illness may be thought possibly to go beyond what would give a sufficiently close connection. For the decided cases give the phrase a very wide application. "Illness arising in the course of the employment " might be inter- preted as covering the onset of diseases which have no causal relation to the employment and if SO a question might arise whether this "pertained" to the relation of employer and employee. But even if the expression were interpreted SO that it went further than could be warranted under the definition of "industrial matters ", the greater part of the ground covered by the claim nevertheless falls, as I think, within the definition and the possibility that an award adopting literally the phraseology of the claim might go too far is no sufficient reason for prohibiting the conciliation commis- sioner from proceeding with the claim.

A further difficulty arises from the manner in which the claim is expressed. For it takes the Seamen's Compensation Act and, without explanation of how it is to be accomplished, demands that ' the compensation payable by the employer shall be that provided for under" that Act. There is a misdescription in the claim in respect of the years given for the Act, which is now the Seamen's Compen- sation Act 1911-1949. But that does not matter. The definition of

1(1914) 18 C.L.R. 224, at pp. 249, 250. 86 CLR 300

seamen " contained in S. 3 1 excludes espressly " a master, mate, engineer or radio officer of a ship ". Hence the claim. If it is intended to apply the Seamen's Compensation Act directly to the excluded officers, this seems to be just what Parliament has decided against. But no one supposes that Parliament meant that employers should be under no liability to employees of the excluded category, suffering injury attributable to their employment. If the claim means no more than that the rates of compensation prescribed by the Act shall be applicable, probably that does not conflict with any intention to be ascribed to Parliament. But the conciliation commissioner cannot by his award extend to the officers in question the jurisdiction of the courts upon which the Seamen's Compensation Act confers the various authorities given by, for example, SS. 5 (3), 5c (3) First Schedule, cll. (1) (a) (ii), (7A), (10), (17), (18); Second Schedule, cll. (2), (3), (7), (8) (e) and (12). See the Builders' Labourers' Case (1). Further if the provisions of the Act were made applicable in full it would be found that in some respects the operation of the words with which cl. 3 (a) of the claim begins, viz. :----' if personal injury by illness or accident arising out of or in the course of the employment be caused to an employee would be enlarged and in others qualified or restricted: see for instance SS. 3 (3), 5c and 5AA. Further there would be a possibility of the weekly payments and the provisions relating thereto being given a purported operation beyond the period specified in the award under S. 48 (2) of the Conciliation and Arbitra- tion Act 1904-1951.

It is evident that there are many difficulties in an attempt to incorporate the Act by reference in an award, in relation both to meaning and application and also validity and operation. But I think that the fair meaning of the claim in the log is that the organization demands that employees shall be compensated in respect of personal injury caused to them by illness or accident arising out of or in the course of the employment and that it demands that the compensation payable shall be that provided for under the Seamen's Compensation Act. The second demand I take as fixing the maximum limits of amounts payable. The first demand

I take as seeking the imposition or concession of some liability to compensate such injury.

The resulting dispute is wide enough to enable the conciliation commissioner, should he think fit to do so, to make an award which within the ambit of the dispute he may SO frame that it does not

1(1914) 18 C.L.R., particularly at p. 252. 86 CLR 301

encounter the difficulties I have mentioned or otherwise exceed the limits of his power. I do not think that SS. 127 and 132 of the

THE QUEEN

Navigation Act 1912-1950 constitute an exhaustive statement of the liabilities which are to be imposed on shipowners in consequence

KNIGHT;

of illness or accident in the case of masters, seamen or apprentices. These provisions may possibly occupy some part of the field ex- clusively but if SO that field does not extend to compensation for such illness or accident at all events after the termination of the service.

I am of opinion that the conciliation commissioner ought not to be prohibited from proceeding with the hearing of the claims of the organizations with respect to injury by illness or accident arising out of or in the course of the employment.

3. Intervals off duty. In my opinion the claims for these intervals fall within the province of the conciliation commissioner and are not claims for annual leave or other periodical leave within S. 13 (1) (c) of the Conciliation and Arbitration Act 1904-1951. I have had the advantage of reading the judgments prepared respectively by Williams J., Fullagar J. and Kitto J. which give reasons in which

I fully concur for this conclusion.

I think that the order nisi should be made absolute for a writ of prohibition limited to the claims made by cl. 34 (Pensions) of the log of the Merchant Service Guild of Australasia and by cl. 39 (Pensions) of the Australian Institute of Marine and Power Engineers.

McTIERNAN J. The pecuniary benefits claimed under the headings "compensation" and "pensions" by the employees' organizations are not specified by any Conciliation and Arbitration Act of the Commonwealth as "industrial matters". If Parliament intended 'industrial matters" to include such benefits, it is strange that it was never specially concerned to mention them expressly. Section 6 of the Act of 1947 made the enumeration of industrial matters more comprehensive than any previous enumeration of such matters: yet the industrial matters specially mentioned include nothing which connotes either of the matters described in the employees' logs of claims as compensation or pensions".

The whole of the argument that 'compensation" and "pensions" are both "industrial matters" depends upon the general definition introduced by S. 6 of the Act of 1947. This section says that the term 'industrial matters" means "all matters pertaining to the relations of employers and employees

86 CLR 302

As part of the enumeration of "industrial matters", S. 6 retains the phrase "conditions of employment" upon which, in the Builders' Labourers' Case 1, was based the contention that THE QUEEN workmen's compensation was included in "industrial matters" " as defined in the Acts under which the case was decided. Griffith C.J. and Barton J. decided that in the context of these Acts, workmen's compensation was not within that phrase Isaacs J. was of the contrary opinion.

The compensation' " which the employees required the employers to provide is of the nature of workmen's compensation. Although this matter is not covered by the words "conditions of employ- ment ", the general definition of industrial matters invites the question whether the compensation" pertains to the relations of employers and employees. The general definition is wider than the phrase conditions of employment". The Builders' Labourers' Case (1) is not necessarily an obstacle in the path of the employees' organizations. The word pertaining" describes the nature of the connection which must exist between the "compensation" and the relations of the disputants on either side to one another in their respective economic roles of employers and their employees, in order that the compensation" may be an industrial matter. The right to workmen's compensation is not an incident attached by common law to the contract of employment: the right is the product of statute law. The nature and incidents of this kind of statutory compensation are well known and discussion upon them is here unnecessary. Such compensation is payable to a workman during his incapacity for work, or in the event of his death, to his dependants. The employees' logs of claims show that the "compensation" would have these incidents and the employers' liability to pay it would arise upon the determination of the contract of employment. Is the "compensation", nevertheless, a matter which pertains to the employer-employee relations of the disputants ? The incidents which have been mentioned exclude the compensation" from this description, unless there is some other incident of it which makes it pertain to those relations. The 'compensation" would be payable upon contingencies proper to legislative schemes of workmen's com- pensation. The only link between the "compensation" and the employment would be injury or illness arising out of or in the course of the employment. The criterion of liability is very wide. It is enough to notice that an employer would be liable, as in the case of any legislative scheme of workmen's compensation, irres- pective of his responsibility for an employee's loss of earning power

1(1914) 18 C.L.R. 224. 86 CLR 303

or death. The employers would be the insurers of their employees against loss of earning capacity and of their employees' dependants

THE QUEEN

against loss of their means of support. The policy of legislation on the subject of workmen's compensation has been to impose KNIGHT;

this obligation upon employers. The compensation is a form of social security extending beyond the duration of the relations of employer and employee and covering persons other than employees, namely the dependants of employees. STEAMSHIP

In the preliminary note to the Acts brought under the title ASSOCIATION.

"National Insurance and Social Security" in Halsbury's Statutes of England, 2nd ed., vol. 16, p. 642, the editor says "The Acts in this title are concerned primarily with payments either by way of insurance or assistance on the occurrence of events in life which impose an extra financial burden on an individual or deprive him of the means of providing for his own and his family's needs ". These Acts form the legal basis of the "Welfare State". One of the pay- ments with which the Acts are concerned is workmen's compensation. The National Insurance (Industrial Injuries) Act 1946 (Imp.) (9 &10 Geo. 6 C. 62) (see p. 797) is one of the Acts. It removed the liability placed on the employer by the Workmen's Compensation Act 1925 (Imp.) (15 &16 Geo. 5 C. 84) (a consolidating Act), and provided a comprehensive scheme of insurance in respect of industrial injuries and diseases. It seems that the Act proceeds upon the principle that workmen's compensation is more than a mere incident of the relationship of employer and employee, even although the scheme of previous legislation was to cast upon the employer the whole liability of providing this form of financial assistance to the employee and his dependants. The liability of the employer to provide such financial assistance is based upon considerations of social welfare which transcend the strict employer-employee relationship; it is not a matter which wholly pertains to the area of the employment. The obligation to provide such pecuniary benefits, under the conditions which mark them as workmen's compensation, in my opinion, does not come within the statutory conception of "industrial matters ".

The 'compensation" which is claimed by the logs is not of the nature of ' sick leave with pay" over which by SS. 13 and 25 of the principal Act, as amended by SS. 4 and 5 of Act No. 18 of 1951, the court is given exclusive jurisdiction.

It is not implied in anything which I have said that if workmen's compensation was added to the list of " industrial matters" enumer- ated in the Act, that the refusal by employers of a demand by employees to assume liabilities connoted by workmen's compensation

86 CLR 304

would be an "industrial dispute within the meaning of the Constitution. I pass no opinion on that question. The opinion which I express is that the subject matter of the employees' claim for "compensation" is not upon the true construction of the Act included within the definition of the term 'industrial matters"

I am also of the opinion that the claim for "pensions" does not relate to "industrial matters". The basis upon which this claim is put forward contains a contradiction. The claim contains this statement Notwithstanding that the employee may be retired by the employer the relationship of employer and employee shall continue while under the provisions set out hereunder, such employee is entitled to monetary allowance during the time he is actually not working" This is an attempt to make a fictitious relationship of employer and employee between persons who are not in truth in that relationship. Does such a fiction help to make the claim pertain to the relations of employer and employee ?

I think that it does not do SO. In truth the claim for 'pensions " is a demand for pecuniary benefits payable after the relations of employer and employee have really ended. There is nothing in the list of enumerated "industrial matters" which in any way resembles the "pensions" claimed by the employees. The payment of such pensions is not a matter which pertains to the relations of employers and employees. The employees demand that the employers should assume an obligation to provide by payments of money for the social security or welfare of persons who had been in their employment. This obligation in my opinion transcends the relations which arise out of the contractual relationship of employer and employee.

If the Legislature intended "pensions" to be an industrial matter, it is, as stated above, strange that the enumeration of

industrial matters" does not include "pensions" but as in the case of workmen's compensation" I pass no opinion on the question of the power of the Legislature. The "pensions" which are claimed are not of the nature of " long service leave with pay" over which by SS. 13 and 25 of the principal Act, as amended by SS. 4 and 5 of Act No. 18 of 1951, the court is given exclusive jurisdiction.

As regards the claim for "Intervals off Duty", this falls within the ambit of "industrial matters". The question is whether by SS. 4 and 5 of the Conciliation and Arbitration Act (No. 2) 1951 the power to make an award on the subject of the claim is withdrawn from the conciliation commissioner and placed exclusively in the court. The provision of relief within the ambit of this claim would

86 CLR 305

not be " a provision for annual or other periodical leave with pay ". I have read what my brothers Williams and Kitto have said

THE QUEEN

on this question I have nothing to add.

I should make the order nisi absolute in respect of the claims for "compensation" and "pensions " and discharge it in respect of the claim for "Intervals off Duty".

WILLIAMS J. This is an application to make absolute a rule nisi for prohibition prohibiting Hamilton Knight Esq., one of the ASSOCIATION. conciliation commissioners appointed under the Conciliation and

Arbitration Act 1904-1951 from further hearing disputes between the Merchant Service Guild of Australasia and the Australian Institute of Marine and Power Engineers and the prosecutor the Commonwealth Steamship Owners Association in SO far as these disputes exclusively relate to the claims made in cll. 22, 28 (3), 28 (4) and 34 of the log of claims of the respondent Guild and to the corresponding clauses in identical terms, namely, cll. 27, 32 (3), 32 (4) and 39, of the log of claims of the respondent Institute.

It will be convenient in the first instance to deal with cl. 22 of the log of claims of the Guild and cl. 27 of the log of claims of the Institute. These clauses are headed " Intervals off Duty objection to Mr. Knight's jurisdiction to hear these disputes is that they are claims for an award providing for or altering a pro- vision for annual or other periodical leave with pay. The Conciliation and Arbitration Act (No. 2) 1951 amended SS. 13 and 25 of the principal Act by inserting in lieu of paragraph (c) in each of these sections the following new paragraph "providing for, or altering a provision for, annual or other periodical leave with pay, sick leave with pay or long service leave with pay". The effect of these amendments was to exclude such claims from the jurisdiction of conciliation commissioners and place them within the exclusive jurisdiction of the Commonwealth Court of Conciliation and Arbitration.

The members of the Guild are captains and officers and the members of the Institute engineering officers of sea-going vessels. Clauses 22 and 27 in effect provide that such members while serving on such vessels are to have, SO far as possible, four intervals of twenty-four hours off duty in each month to be given at the home port only, and five intervals of twenty-four hours off duty in each month to be given at the home port or at other prescribed ports, in some instances only on Sundays or public holidays. The clauses divide voyages into voyages of vessels between places in Australia and to places beyond Australia where the period of absence from

86 CLR 306

the home port or the port of engagement of the employee does not exceed two months, voyages to ports beyond Australia where his period of absence from the home port exceeds two months but not six months, and voyages extending beyond Australia where his period of absence from the home port exceeds six months. In the case of voyages of the second and third description the clauses provide for the manner in which these intervals are to be granted during the time spent by the. vessel in the home port unless the employee is being sent to take his annual leave in which case the intervals due to him are to be added to his annual leave. The clauses provide that the intervals at home ports which are not granted at all shall be paid for at double the daily rate. If the other intervals are not SO granted their equivalent shall be allowed as leave either cumulative with annual leave if granted within a period of six months from the date when the first of such ungranted inter- vals arose or in a consecutive period of leave within six months of the date when the first of such ungranted intervals arose. If these other intervals are not granted at all they shall be paid at one and a half times the daily rate.

The application for prohibition in respect of intervals off duty is based primarily upon the submission that the intervals would constitute annual or other periodical leave with pay, within the meaning of SS. 13 (1) (c) and 25 (c) of the Conciliation and Arbitration Act 1904-1951, by which power to make an award providing for such leave is denied to a conciliation commissioner and assigned to the Arbitration Court. The privilege of an employee described by the words 'annual or other periodical leave" is a familiar incident of employments governed by contract, award or statute. The phrase refers to a specified period of permitted absence from work, without loss of wages, to which an employee becomes entitled at the end of each year or other selected period of his employment, and which is allowed because of, and as providing an opportunity for recreation after, the service rendered by the employee during that year or other period. Two essential characteristics of such leave are that the right to it is a right to interrupt for a pre- determined period the normal course of duty in the employment, and that there is a particular purpose for which the right is claimed

86 CLR 329

and granted, namely the purpose of recreation after the work of the period to which it relates. A clear distinction exists between

THE QUEEN

a period of leave of this description and certain days which are not days of normal work and are enjoyed by employees in most industries

KNIGHT;

at week-ends and on public holidays. In ordinary parlance these days are not referred to as periodical leave, for reasons which are not difficult to appreciate. On non-working days of the kind just mentioned, the employee is off duty, not because of a privilege entitling him to depart from the normal course of duty, but because ASSOCIATION. the normal course of duty does not necessitate his working on

those days. They are days which he has free simply in consequence of the manner in which the total working hours for a week or other period have been arranged by the terms of the employment for all employees to whom they apply. Thus where a normal working week of forty hours is provided for by specifying as ordinary working hours a period of eight hours between stated times on each day of the week (other than public holidays) from Monday to Friday inclusive, there is a residue of hours on each of those days, and a residue of days, which automatically fall outside ordinary working hours. They are of course available for recreation, but they are not the subject of any exception for that purpose out of the normal obligation to work and their occurrence has no relation to any period for which the individual employee has worked.

A perusal of the logs makes it clear that the intervals off duty which are claimed are of the same character as the days off duty to which the generality of employees are entitled at week-ends and on public holidays. The necessity for a special provision with respect to them arises from the fact that the nature of the employment makes it impossible to limit the number of days in each week on which the employees shall be available for work at their place of employment. The logs (in cll. 17 and 19 respectively) limit the number of ordinary working hours per day to eight, and provide for the fixing of the times within which those hours shall be worked; but mariners at sea cannot observe anything less than a seven-day working week or avail themselves of public holidays. Consequently the logs set about providing a method of limiting total normal working time by providing days off duty in port in lieu of the days which have been referred to as residual days in the case of employees on land. Though they do so, as for practical reasons they must, by approaching the problem from the point of view of intervals off duty rather than from that of times on duty, the primary purpose is still to place the desired limit upon the total normal working time rather than to except a period from

86 CLR 330

that time as a respite from the continuity of the demands which their employment makes upon them.

The period of a month is taken as the unit of time with reference to which the number of intervals is to be calculated. This enables public holidays to be taken into account. It is stated in par. (i) of cl. 22 of the Guild's log, and in par. (j) of cl. 27 of the Institute's log, that the intervals claimed are based upon the assumption that there are only ten public holidays (scil. in each year), and an additional interval is claimed for every additional public holiday. Allowing for ten public holidays and fifty-two week-ends in a year, ASSOCIATION. the monthly average of non-working days for which substitutes are to be allowed is 9.5. Clauses 22 and 27 of the respective logs provide for nine only but as against that, cll. 23 and 28 provide for the addition of three days to an employee's annual leave on account of intervals not taken into consideration under the earlier clauses. Then both cl. 22 of the Guild's log and cl. 27 of the Institute's log provide in a sub-cl. (c) that in the case of an employee serving for any period less than one or more complete months, the employee shall receive for every 2.3 days of the employment not forming part of a complete month one additional home port interval. This preserves the proportion in which it is assumed that a month is divided between working and non-working days, namely twenty-one working days and nine non-working days. This division of the month is reflected elsewhere in the logs since wages are claimed at monthly rates (cll. 15 and 17), the daily rate, which must be ascertained for some purposes mentioned in the logs, is to be reached by dividing the monthly cash wage (or that wage plus a fraction of the basic wage) by twenty-one (cll. 1 and 4, definitions of "Daily Rate "). Finally, cl. 17 (e) of the Guild's log and cl. 27 (i) of the Institute's log contain provisions which emphasise the character of intervals off duty as making up as far as possible for the days on which employees on land are able to leave the scene of their labours and go about their own affairs. The former paragraph provides that while a vessel is at the home or residential port of an employee on a Saturday, Sunday or public holiday and there spends upwards of twenty-four hours, such employee shall be granted intervals under cl. 22 to the extent of the available time. The latter paragraph provides that if an employee performs work on a Sunday or public holiday in his port of residence, he shall be paid at the overtime rate and be given in his port of residence an additional interval; but if he performs work on a Sunday or public holiday in a port other than his port of residence he shall be paid at the overtime rate but the interval

86 CLR 331

SO worked shall be credited against him as one of his intervals under cl. 27.

THE QUEEN

The nature of these intervals and their manifest purpose place them completely outside the conception of annual or other periodical

KNIGHT;

leave. The provisions for them are designed only to reconcile the prescription of a maximum number of ordinary working hours with a due recognition of the practical necessities of the industry. They do not operate to entitle each employee to a form of leave having reference, as regards either the granting or the duration ASSOCIATION. of it, to any period of his individual service, or intended as a

respite which he has earned by that service. Their operation is to give all employees covered by the logs who sail in the one vessel the same benefit as one another, for the purpose of reducing the average of their ordinary working hours per month to the level observed in the case of employees on land. There is, therefore, no ground for the contention that this aspect of the dispute is beyond the authority of the commissioner.

Compensation for injury. The next aspect of the dispute with which the prosecutor denies that the commissioner has power to deal is that which is the subject of cl. 28 (3) and (4) of the log served by the Guild and cl. 32 (3) and (4) of the log served by the Institute. The claim is that, if personal injury by illness or accident arising out of or in the course of the employment be caused to an employee, the compensation payable by the employer shall be that provided for under the Seamen's Compensation Acts of the Commonwealth, with certain exceptions. The Seamen's Compensation Act 1911-1949 (Cth.) does not of its own force apply to the employees with whom the logs are concerned, such employees being excluded from the meaning of the word " seaman " by the definition contained in S. 3 inserted by the Act No. 7 of 1949. The logs provide that the right to compensation (by which obviously is meant the right to the immediate receipt of payments of com- pensation), is not to commence until the contract of employment has been determined and the employee is no longer entitled to his wages under the award.

The prosecutor's challenge to the jurisdiction of the commis- sioner to deal with the subject-matter of this claim is based in the first instance upon the fact that, if any provision with respect to it is included in an award, the rights of employees and the obliga- tions of employers under that provision will become enforceable after the employment has ceased. The recipients of compensation will not be employees, but will be either incapacitated ex-employees or the personal respresentatives of deceased employees. The persons

86 CLR 332

required to make the payments will not be employers, but will be ex-employers. Therefore, it is said, the claim lies outside the sphere of the employer-employee relationship; its subject matter is not a matter pertaining to the relations of employers and employees, and is not within any of the particular categories of industrial matter set out in S. 4 of the Conciliation and Arbitration Act

The argument assumes that the "matter" which has to be considered for the purpose of deciding whether it is an industrial matter is the right to receive each amount of compensation as it becomes payable. It is that right and that only which will accrue after the termination of the employment. But the 'matter" " to be considered is the matter as to which the dispute exists; and the dispute exists upon the question whether the employment of the employees whose organisations are involved shall be upon the terms (inter alia) that employment injuries (as they may be called for brevity) shall be compensatable. That subject of dispute in my opinion falls squarely within the definition of "industrial matters in S. 4 of the Conciliation and Arbitration Act. It is not a subject which is foreign to the employment, for the compensatable character of an injury is dependent upon its being caused to an employee (that is to say during the employment), and caused by illness or accident arising out of or in the course of the employment.

A provision affecting an employer with a liability upon the happen- ing of such an injury might with perfect appropriateness be included in an employment contract, for it would prescribe an incident of the relation existing between an employer as employer with an employee as employee. The topic is therefore within the general portion of the definition of industrial matters in S. 4: R. v. Kelly Ex parte State of Victoria 1. Moreover, it falls within both par. (b) and par. (h) of that definition, by which the privileges, rights and duties of employers and employees, and the terms and conditions of employment, are specifically included in the expression 'industrial matters". It surely cannot be a relevant consideration that, if a provision for compensation is included in an award, the obligations of employers arising under the provision will fall to be discharged by payments to be made after the relationship of employment has ended. If a claim with respect to wages in- cluded a provision that payment of the whole or a portion of the wages should be deferred until after the termination of the employ- ment, presumably no one would maintain that the provision for deferment precluded the claim from being a claim as to an industrial

1(1950) 81 C.L.R. 64, at p. 84. 86 CLR 333

It was further contended on behalf of the prosecutor that the claim for a compensation provision is within the jurisdiction, not

THE QUEEN

of the conciliation commissioner but of the Court. Such a provision is said to be one providing for, or altering a provision for, sick leave with pay, within the meaning of SS. 13 (1) (c) and 25 (c). The submission is clearly untenable.

If the commissioner were minded to include in his award a provision granting compensation upon death or incapacity from illness or from accident arising out of or in the course of the ASSOCIATION. employment, he would need to evolve a provision in terms very

different from those of the logs. The logs make no real effort to face the difficult problems which would confront the draftsman of a workable compensation scheme. For one thing, the award could not validly confer on the tribunals referred to in the Seamen's Compensation Act jurisdiction to adjudicate upon claims to compen- sation under the award, and some other means of deciding claims would need to be adopted. But such considerations have no bearing upon the question which alone is before us at this stage, namely whether the dispute as to compensation is within the arbitral authority of the commissioner. There is, I think, only one question not already considered which bears upon that question, and that is whether the existence of SS. 127 and 132 of the Navigation Act 1912-1950 (Cth.) debars the commissioner from making any provision intruding into the field of compensation for incapacity arising from employment illnesses or injuries. If those sections exhibited an intention to make, in respect of the employees for whom claims are made by the logs, all the provisions which the Parliament considered ought to be made for them in that field, it may well be that, in accordance with the maxim generalia specialibus non derogant, the Conciliation and Arbitration Act should not be construed as empowering the respondent commis- sioner in settling the dispute to make an award dealing with the subject. But I do not think that the sections should be regarded as belonging to that field, and I am therefore of opinion that those sections should not affect the decision of this case.

Pensions. The final matter upon which prohibition is sought is the claim for pensions, contained in identical terms in cll. 34 and 39 of the respective logs. The pensions range from one- quarter of the annual salary earned by the employee during his last year after ten years' service to one-half of that annual salary after fifteen years' service. A pension at the appropriate rate is claimed for an employee upon attaining sixty-five years, or earlier if, on the grounds of infirmity, he becomes unable to render the

86 CLR 334

agreed service. There is added a claim for quarterly adjustments to cover variations in the purchasing power of money, and a claim that in the event of the employee predeceasing his wife, then the widow shall be paid one-half of the pension to which the employee would have been entitled. The clauses making these claims com- mence with two paragraphs which must be quoted in full, with corrections of punctuation to make the meaning clear: (a) An Agreement or an Award shall be made, indeterminate SO far as its duration is concerned but subject to variations by mutual consent between the parties or by order of the Arbitration Court, containing the undermentioned provisions for the payment of pensions. (b) Notwithstanding that the employee may be retired by the employer the relationship of employer and employee shall continue while, under the provisions set out hereunder, such employee is entitled to monetary allowance during the time he is not actually working"

Similar paragraphs occur in the clauses of the logs which make claims for extended leave (see pars. (j) and (k) of cll. 23 and 28 of the respective logs).

The provision of par. (a) of the relevant clauses was attacked as being in conflict with S. 48 (1) and (2) of the Act, which provide, in effect, that an award shall continue in force for a period to be specified in the award, not exceeding five years from the date upon which the award comes into force, and thereafter, unless otherwise ordered, until a new award has been made. Of course the comissioner cannot make an award conforming to par. (a), but the inclusion of that paragraph in the demand does not produce the consequence that the disputes created by the omission of the employers to concede the demands made by the pension clauses are such that the commissioner has no power to settle them by appropriate awards made in conformity with the requirements of the Act.

Paragraph (b) is apparently directed to precluding the prosecutor's main argument in relation to pensions. This argument was that the claims made are outside the conception of industrial matters because they seek rights in respect of a period after the cessation of the employment. The prosecutor sought to dispose of the paragraph by saying that jurisdiction under the Conciliation and Arbitration Act exists only with respect to an actual employer- employee relationship and cannot be extended by creating a fiction that there is such a relationship when in fact there is none. But the function of par. (b) does not appear to be to create a fiction at all. Its effect would seem to be to preclude a purported