Clancy v Butchers' Shop Employees Union [1904] HCA 9; (1904) 1 CLR 181 (28 March 1904)

HIGH COURT OF AUSTRALIA

Richard Clancy Appellant; and Butchers' Shop Employes Union, James John News Secretary, and The President and Members of the Court of Arbitration, New South Wales Respondents.

H C of A

On appeal from the Supreme Court of New South Wales.

28 March 1904

Griffith, C.J., Barton and O'Connor, JJ.

Gordon, K.C. (Wade with him), for appellant.

Piddington, for the respondent union and J.J. News.

Holman followed.

Delohery, for the Court of Arbitration.

Gordon, K.C., in reply.

28th March

Griffith, C.J.

This is an appeal from an order of the Supreme Court of New South Wales discharging an order nisi for a prohibition directed to the Arbitration Court and the present respondents. It was sought to prohibit them from proceeding upon an order of the Arbitration Court imposing a fine upon the appellant for a breach of an award of that Court. That award contains a clause to the effect that all shops of the class to which that kept by the appellant belonged should be closed at 1 p.m. on Wednesdays, 9 p.m. on Saturdays, and 5 p.m. on other days. It was objected by the respondent union that no prohibition lay from the Supreme Court to the Arbitration Court. This objection was founded upon sec. 32 of the Industrial Arbitration Act 1901, which provides that—"Proceedings in the Court shall not be removable to any other Court by certiorari or otherwise, and no award, order, or proceeding of the Court shall be vitiated by reason only of any informality or want of form or be liable to be challenged, appealed against, reviewed, quashed, or called in question by any Court of judicature on any account whatsoever." It is said that this section altogether excludes the jurisdiction of the Supreme Court to interfere with the proceedings of the Arbitration Court in any way.

There are two answers to this contention, one being that similar sections taking away the right to certiorari and other remedies have always been construed as not extending to cases in which a Court with limited jusisdiction has exceeded its jurisdiction. It has often been held that when the legislature uses words in this well-known form they must always be taken to have intended the enactment to be subject to the rule I have mentioned. The other answer is that where different parts of a Statute are apparently contradictory, such a construction must, if possible, be put upon them as will render them all consistent with one another. In this case it will be found that the legislature has carefully defined and limited the jurisdiction of the Arbitration Court. Sec. 16 provides for the appointment of the Court in these words:—"There shall be a Court of Arbitration for the hearing and determining of industrial disputes and of references and applications under this Act. The Court shall be a Court of record and shall have a seal which shall be judicially noticed. The Court shall consist of a President and two members." Sec. 26 provides that—"The Court shall have jurisdiction and power" as to several matters, all of which are carefully defined. Then, the jurisdiction of the Court having been so defined, sec. 28 says:—"No matter within the jurisdiction of the Court" (words which recognize the existence of a limit to the jurisdiction) "may be referred to the Court, nor may any application be made to the Court except by an industrial union or by any person affected or aggrieved by an order of the Court," and then proceeds to prescribe the manner in which such persons and unions may bring such matters before the Court. Thus not only is the jurisdiction of the Court itself restricted, but even the persons entitled to invoke its aid are limited and enumerated in detail. To hold in the face of these provisions that sec. 32 prevents the Supreme Court from checking any excess of jurisdiction would be in effect to give the inferior Court unlimited jurisdiction. For these reasons I have no doubt that the Supreme Court had jurisdiction to grant a prohibition.

The question for consideration now is whether the Arbitration Court in making the order against the appellant has exceeded its jurisdiction, and in considering that point it is necessary to examine closely what the actual proceeding was, because there seems to have been some misunderstanding on the point, and different views have been expressed at different stages of the case. It appears that at some time before 3rd February, 1903, an industrial dispute arose between the Butchers' Shop Employés Union and the Master Butchers Association, and on 3rd February an order or award was made by the Arbitration Court which states:—"The Court of Arbitration having taken into consideration the matter of the above-named dispute ... and the industrial agreement entered into between the claimants and respondents herein on 28th January, 1903, &c., doth order and direct that ... the terms and conditions set out in the aforesaid agreement ... shall be a common rule" binding upon all persons engaged in the butcher's business within a certain area, "and doth hereby further order and declare that any breach of the terms, conditions, and provisions set out in the said agreement ... by the said Union or any member thereof, or by the said Association or any member thereof, or by any any person not a member of the said Association carrying on business within the aforesaid area shall constitute a breach of this award."

Another clause of the award was to the effect that if any member of the association or the union should commit a breach of the award he should be liable to a penalty not exceeding £5 for every breach thereof, and that any person, not a member of those bodies, who should commit a breach thereof should be liable to a penalty not exceeding £5, such penalty to be payable to the union or the association as the case might be, or to the secretary or registered officer. The agreement in question appears to have been made on 28th January, 1903, between the parties pending litigation, as a basis of settlement, and it was adopted by the Arbitration Court and embodied in its award, as was often done in such cases. The award having been made, on 3rd June, 1903, a summons was taken out—there were in fact three summonses—against the appellant, calling upon him to show cause why he should not pay the respondent, James John News, the registered officer of the respondent union, the sum of £5, being a penalty for a breach committed by him of the order of the Court of Arbitration of February 3rd, 1903. An affidavit of James John News, filed in support of the summons, alleged that one of the terms of the agreement embodied in the above-mentioned award was to the effect that all shops kept by members of the Association, of whom the appellant was one, should close at 5 p.m. on Monday, Tuesday, Thursday and Friday, 1 p.m. on Wednesday, and 9 p.m. on Saturday, and that a breach of the award had been committed by the appellant in that he did on Saturday, May 30th, keep his shop open till 9.30 p.m. There can be no doubt that the summons was for a breach of the award, and if the award was invalid, that is, if it was not within the jurisdiction of the Court to make an award upon the point in question, the summons disclosed no offence, and the Court had no jurisdiction to punish the appellant for doing that which was not a breach of any valid award. The summons was heard before the Arbitration Court, and the learned President appears, in his judgment (1903 A.R., 388), to have treated the matter not as the question of a breach of an award binding upon all persons as a common rule, but as a breach of an industrial agreement by a party to it. In his judgment, after pointing out the powers of the Court, he said "In my opinion, however, the case is altogether different when an employer by agreement gives up a right or privilege that the law has conferred upon him;" and he added later on—"Seeing that the industrial union, of which the respondent is a member, was a party to the industrial agreement, the breach of which is complained of, he must be bound by it as strongly as if it had been his own personal agreement." He evidently treated the matter as if it were a breach of the agreement already mentioned. Owen, J., also appears to have been impressed to some extent with the same view, though he did not altogether base his judgment upon it. The learned President, when asked, in another case that came before the Court, to enforce an award upon a similar matter (In re Sylvester), refused to do so, on the ground that in his opinion the award could not have any effect except as an agreement, and therefore could not bind persons who were not parties. It is desirable to point out that proceedings for the breach of an agreement are very different from proceedings for breach of an award. An award is an order of the Court. It is true that sec. 15 provides that—"An industrial agreement as between the parties bound by the same shall have the same effect, and may be enforced in the same way as an award of the Court of Arbitration, and the Court shall have full and exclusive jurisdiction in respect thereof." But the proceedings would have to be taken for penalties due as a matter of contract, not as consequent upon a breach of an order of the Court. Further, upon an application to the Court to enforce an agreement against any person, he would be entitled to show that he was not a party to it. Before he could be bound by it it would have to be shown either that he was a party to the agreement, or that it had been made on his behalf by someone who had authority to bind him, and the question then would always be whether the matter to which the agreement referred was one upon which the agent had authority to bind the members of the union, his principals; and that would depend on the question whether the matter was an "industrial matter" within the meaning of the Act. If the matter did not come within the words of the Act the union would have no power to bind its members, and the agreement would be altogether inoperative. The question, therefore, is always the same, whether the matter of the agreement was or was not an industrial matter within the meaning of the Act, and in the case of an industrial agreement there is this additional question, whether the particular person against whom the agreement is sought to be enforced was a party to it. In this case the proceeding was for the breach of an award, and the question is whether the Court had jurisdiction to make the order complained of. The answer to this depends upon sec. 16, which empowers the Court to "hear and determine industrial disputes and references and applications under this Act," taken in connection with the definition of and in sec. 2. An "industrial dispute" is defined as a dispute in relation to industrial matters between an employer or industrial union of employers on the one part, and an industrial union of employés or trade-union or branch on the other part, and includes any dispute arising out of an industrial agreement. "Industrial matters" are defined to mean matters or things affecting or relating to work done or to be done, or the privileges, rights, or duties of employers or employés in any industry, with certain limitations not necessary to mention. "Industry" is defined to mean business, trade, manufacture, undertaking, calling or employment in which persons are employed for hire or reward, including the management of certain public concerns, but not including employment in domestic service. The question, therefore, is whether the particular term in the agreement, as to which the dispute arose, relating to the closing of shops, referred to a matter that comes within that definition, for if the dispute does not relate to an industrial matter it is not an industrial dispute and the Court has no jurisdiction to deal with it. In construing the Act it should be borne in mind that it is an Act in restriction of the common law rights of the subject, and, though that is no reason why the fullest effect should not be given to its provisions, it is a reason why the meaning should not be strained as against the liberty of the subject. It was contended very forcibly that the definition of "industrial matters" in the Act was large enough to cover this case. Certainly if there were no definition in the Act the words might be taken in one sense to include all matters or things affecting or relating in any way to an industry. The respondents' contention went as far as that, but those are not the words of the Act. There are intervening words in the Act which were intended to be words of limitation, so that "industrial matters" should not include all matters affecting or relating to any industry, but only certain classes of those matters. The words "privileges, rights or duties of employers or employés in any industry," clearly refer to matters of mutual obligation. They imply ex vi termini that there are two parties, one of whom owes a duty or possesses a right as against the other. The argument was pressed on behalf of the respondents that the matters in question fell within the meaning of the words "affecting or relating to work done or to be done in an industry," and that view seems to have been adopted by Owen, J., in the Supreme Court. He seems to have thought that the agreement should be treated as a whole, and that the parties, by assenting to the inclusion of the term in question in the agreement, had treated it as an "industrial matter," in the sense of being a matter that related to the industry; and he gave instances of the way in which the time of closing shops might affect "work done or to be done." In his judgment (p. 597), he says: "Suppose, for instance, that a butcher engaged his employés to cut up joints and meat till 9 p.m., and then dismissed them, but kept his shop open after that hour to deliver the meat either personally or with the assistance of his children, or his wife, or himself cut up the meat for customers without any assistance. His employés might consider that such conduct diminished the quantum of work of the shop assistants and their wages, and, therefore, ought to be regulated by specific agreement." It does not follow, however, that it would on that account be an industrial matter. He then goes on to say: "I therefore see that the agreement for all shops to close at the same hour may have been insisted on by the employés as affecting them in relation to the employers in the way I have indicated, and may have formed an integral part of the agreement into which both unions entered in order to settle the dispute. If that be so, then the term in question became as much an industrial matter as any of the terms in the agreement." I turn then to the section to see whether the words of the definition go as far as that. In one sense this case may fall within the words of the section, but if that view is adopted I do not see how any matter affecting an iudustry could be excluded, because every matter affecting or relating to an industry must directly or indirectly relate to the "work done or to be done" in that industry—that is, to the work which would ultimately have to be done by the employés in that industry. Evidently some limitation of the meaning is necessary. In what sense, then, is the word "work" used in the Act? In the same section "employer" is defined as meaning "a person, firm, company, or corporation employing persons working in any industry." Under the definition of "lock-out," I find the words "the closing of a place of employment or the suspension of work by an employer," i.e., the employer in that case takes away from the employé the opportunity of doing work in the industry. In the definition of "strike" are the words "the cessation of work by a body of employés acting in combination." The word "work" in the Act always means work done by an employé; and I am clearly of opinion that the words "work done or to be done" mean work actually done by the employé or actually provided by the employer to be done, that is, such as he thinks fit to provide, but that they do not in any way refer to the quantity of work which the employer is to provide for the employés. If it were so, the Arbitration Court would have a new power not suggested by any words of the Act, a power to regulate the carrying on of an industry at large, that is, to require the employer to employ a particular number of employés, and to provide a sufficient quantity of work for them, and enable them to earn a maximum or minimum wage, conditions which it would be impossible for the employer to fulfil unless he had sufficient capital. I think therefore that the expression "work done or to be done" means actual and not hypothetical work, such work as shall be provided; and that they have nothing to do with prescribing what work shall be provided by an employer. There is nothing in this provision to give the Arbitration Court jurisdiction to interfere with the employer during his own spare time; but after the relationship of employer and employé has ended the employer is free to do as he pleases. He retains his common law right to dispose of his own time as he thinks fit without reference to anyone else, and the Arbitration Court has no power under the Act to interfere with the exercise of this right.

I should advert to another argument used on behalf of the appellants, viz., that the agreement and award were in conflict with the Early Closing Act. I do not think so at all. The fact that the duration of the business hours was limited by some other Act was not at all inconsistent with an arrangement that work should cease and shops be closed before the hour fixed by that Act. But I think that the stipulation dealing with the matter in question was not one relating to an "industrial matter" within the meaning of the Arbitration Act, even upon the most liberal interpretation of its provisions, and that the Arbitration Court had therefore no jurisdiction to embody that stipulation in its award, and that the Supreme Court ought, consequently, to have granted the prohibition restraining the respondents from proceeding upon the order made by the Arbitration Court in respect of a breach by the appellant of that term of the award.

Barton, J.

I am of the same opinion. It is quite unnecessary for me to traverse in detail the ground which the Chief Justice has so fully dealt with. In its essence the question hinges upon the interpretation of the definition of in sec. 2 of the Act, and I do not think that this was a matter affecting the "work done or to be done" within the meaning of that definition. I think that the words in the section refer only to actual work done or to be done by the employé.

O'Connor, J.

I entirely concur with the opinions expressed by the other members of the Court. With regard to the question of jurisdiction, I think that it is particularly important in applying an Act which gives new and very extensive rights and remedies, and, in a sense, creates relations altogether new to the law, that the power of the Supreme Court to see that all inferior Courts keep within the jurisdiction which the law has allotted to them should be preserved, unless the legislature has given clear indication of a contrary intention. It is within the power of the legislature, if it thinks fit, to make the Arbitration Court the sole judge of the extent of its own jurisdiction, but for the reasons given by the Chief Justice it is perfectly clear, on reading the Act, that the legislature has indicated no intention to give the Court such unlimited power. There is another view which makes it impossible to say that the jurisdiction of the Supreme Court to prohibit was taken away. The rule is clearly expressed by Sir G. Jessel, M.R., in Jacobs v. Brett, L.R. 20 Eq., at p. 6, in these words: "In the next place, I think nothing is better settled than that an Act of Parliament which takes away the jurisdiction of a superior Court of law must be expressed in clear terms. I do not mean to say that it may not be done by necessary implication as well as by express words, but, at all events, it must be done clearly. It is not to be assumed that the legislature intends to destroy the jurisdiction of a superior Court. You must find the intention not merely implied, but necessarily implied. There is another principle, which is that the general rights of the Queen's subjects are not hastily to be assumed to be interfered with and taken away by Acts of Parliament." He then refers to a case on the same subject, and proceeds: "Now here the subject has a right, and it is a valuable right, of having the question of the jurisdiction of a local Court determined in the superior Court, and is it to be assumed that that right was to be taken away, and that he was to be compelled to submit the question of jurisdiction to the inferior Court itself? I think that is very unlikely." I do not know of any legislation in which the community generally are more concerned than this, and it is the right of every person to call attention to the fact that any Court is exceeding its jurisdiction. It would be entirely contrary to these well established rules of interpretation to hold that this Act has taken away the right of the Supreme Court to interfere by prohibition. I am clearly of opinion that this right has not been taken away. I do not think that the respondents' argument is strengthened by the words of sec. 32 referred to by Mr. Piddington, simply because that section uses words that are not found in other Acts. All such words must be read as applying only to matters which are within the jurisdiction of the Court. In the case of the Caterers' Association (1903), 3 S.R. (N.S.W.), 19, the law was laid down correctly.

As regards the main matter I am of opinion that the jurisdiction of the Arbitration Court cannot be invoked to enforce an agreement unless that agreement comes within the meaning of sec. 13. These industrial Unions are under sec. 7 made corporations, and they have as large powers of agreement as other corporations. It is not necessary for me to say how far these powers are affected by the Act. It is clear that if they seek the help of the Arbitration Court they must bring themselves within the provisions of the Act. Whether it is sought to enforce an agreement or an award of the Court the same considerations arise. The whole question is narrowed down to this, is the matter in dispute an "industrial matter" or not? The section defining "industrial agreements" must be read in the sense that every stipulation in the agreement must refer only to "industrial matters." It was contended by Mr. Holman for the respondents that so long as part of the subject matter of an agreement dealt with industrial matters, the agreement was an industrial agreement, even if other parts of it dealt with matters that were not industrial. I do not think that that is a correct interpretation of the Act. To hold that it was would be to hand over to the parties themselves power to give jurisdiction to the Court over matters that were not intended by the Act to come under its operation. The requirement that it is an industrial matter must extend to every stipulation in the agreement. When you seek to enforce it the question arises—is it an agreement in writing relating to an industrial matter, as defined by sec. 13? The consideration of that question brings us back to the definition of in sec. 2. It is contended that the words "matters or things relating to work done or to be done" must be taken in connection with the words "in any industry," and it is pointed out that "industry" means "business, &c., calling or employment in which persons of either sex are employed for hire or reward." It is then urged that, taking these words together, it must be inferred that the legislature intended to give power to the Arbitration Court to deal with an industry generally altogether apart from the relations of employer and employé, that after work for the day was over, although the employés had left for the day, the employer had no right to work in the shop for himself, and that all that scope outside the relations of employer and employé was included in the term "industry." It seems to me impossible to construe the Act in that way. I shall only give one instance in illustration of the result of such a construction. Under the head "industry" in sec. 2, after the words I have read, follow these words:—"And includes the management and working of the Government Railways and Tramways, the Sydney Harbour Trust, the Metropolitan Board of Water Supply and Sewerage, and the Hunter River and District Board of Water Supply and Sewerage." Now if the argument is good in regard to a butcher's business, it is good in regard to the carrying on and management of the Government Railways. It is well known that new kinds of labour-saving apparatus are continually being invented and adopted, for instance the automatic fuel feeder. The Railway Commissioners might think it right, in order to reduce expenses in the working of their furnaces, to introduce apparatus of that kind, and it is quite clear that its introduction would very largely affect the amount of work to be done by employés. Could it be contended for one moment that there was jurisdiction in the Arbitration Court to prohibit the use of such apparatus on the ground that it affected the work to be done by the employés, or that it had power to direct what kinds of machinery should be used by the Railway Commissioners in the working of the railways, or in any other of those large businesses that are included in this section. The consideration of such a case brings us to this point, that it is impossible to construe the words of the section in such a way as to include within the "industrial matters" there defined everything that is in any way "relating to an industry." The construction of the section must be controlled by the subject-matter, and the general intention of the Act. The subject-matter is to regulate the relations between employers and employés. Every section of the Act deals with this. If we confine the effect of the sections to matters directly affecting industries, its scope and intention can be carried out. But once we begin to introduce and include in its scope matters indirectly affecting work in the industry, it becomes very difficult to draw any line so as to prevent the power of the Arbitration Court from being extended to the regulation and control of businesses and industries in every part. I am of opinion that the proper interpretation of the words "industrial matters" excludes the matter dealt with in clause 4 of the agreement, which was embodied in the award, that there is no power to enforce it by the steps taken in the Court below, and, as that Court clearly went beyond its jurisdiction, it should be restrained by prohibition.

Appeal allowed. Order of the Supreme Court discharging the Rule Nisi for prohibition discharged. Rule Nisi made absolute with costs. The respondent union to pay the appellant's costs of the appeal. Deposit to be repaid.

Attorneys, for the appellant, Perkins & Fosbery.

Attorneys, for the respondents, Brown & Beeby.