Waterside Workers' Federation of Australia v Commonwealth Steamship Owners' Association

The case of *Waterside Workers' Federation of Australia v Commonwealth Steamship Owners' Association* concerned an industrial dispute brought before the Commonwealth Court of Conciliation and Arbitration. The Waterside Workers' Federation sought a new award to establish higher minimum wages, with a claim for these rates to be operative from a date prior to the making of the new award, specifically from 1st May 1919, which was the expiry date of a previous award. A Justice of the High Court had previously made a declaration under section 21AA of the *Commonwealth Conciliation and Arbitration Act 1904-1918* that an industrial dispute existed concerning these wage claims. The President of the Arbitration Court, facing objections regarding his power to make the new rates retrospective to 1st May 1919, stated a case to the Full High Court for determination.

The central legal issues before the High Court were: firstly, the true construction and validity of section 28(2) of the *Commonwealth Conciliation and Arbitration Act 1904-1918*, which provided for the continuation of an award in force after its specified period until a new award was made, unless the Court otherwise ordered; and secondly, the effect of a prior decision under section 21AA of the Act on the Arbitration Court's power to make a new award retrospective beyond the expiry of the previous award. Specifically, the Court had to determine whether the Arbitration Court had the power to fix minimum wages payable from a date before the making of the new award, and whether a section 21AA declaration could override the limitations imposed by section 28(2).

A majority of the High Court, comprising Knox C.J., Higgins, Gavan Duffy, and Starke JJ., held that section 28(2) was a valid exercise of the Parliament's power under section 51(xxxv) of the Constitution. They reasoned that while the Parliament could not directly legislate on industrial matters, it could prescribe the conditions and limitations under which the arbitration tribunal exercised its jurisdiction. The majority interpreted section 28(2) as a limitation on the Court's power, preventing it from making a new award that operated retrospectively beyond the period specified in the previous award, unless the Court expressly ordered otherwise. They also held that a section 21AA declaration, while establishing the existence and nature of a dispute, did not grant the Arbitration Court power to make an award that Parliament had otherwise forbidden. Isaacs, Rich, and Powers JJ. dissented on both the construction and validity of section 28(2) and the retrospective operation of awards.

The majority of the Court concluded that, apart from the effect of a section 21AA finding, the Commonwealth Court of Conciliation and Arbitration had no power to fix minimum wages payable in respect of any time before the making of a new award, once the period specified in the previous award had expired. This was based on their interpretation of section 28(2) as a prohibition against retrospective operation in such circumstances. Consequently, the Court answered the questions posed in the special case in the negative.