Merchant Service Guild of Australasia v Commonwealth Steamship Owners' Association [1920] HCA 39; (1920) 27 CLR 560 (15 June 1920)

HIGH COURT OF AUSTRALIA

The Merchant Service Guild of Australasia Claimant; and The Commonwealth Steamship Owners' Association and Others Respondents.

H C of A

15 June 1920

Isaacs, Higgins, Gavan Duffy and Starke JJ.

R. G. Menzies, for the claimant.

Ham and Owen Dixon, for the Commonwealth Steamship Owners' Association and several other respondents.

Latham, for the Melbourne Harbour Trust.

Braham, for the Colonial Treasurer, the Minister of Public Works and the Chief Secretary, for New South Wales, and the Sydney Harbour Trust.

The following judgments were read:—

June 15

Isaacs and Starke JJ.

This is a case stated under sec. 18 of the Judiciary Act by our brother Higgins, sitting as a Justice of this Court under sec. 21AA of the Commonwealth Conciliation and Arbitration Act 1904-1918. The material facts appearing in this case are as follow:—On 17th April 1920 the learned President of the Commonwealth Court of Conciliation and Arbitration, in pursuance of sec. 19 (d) of the Act referred what appeared to him to be an industrial dispute into that Court. Subsequently an application was made to him as a Justice of the High Court under sec. 21AA to decide as to whether the dispute existed. On that application certain objections were taken to an affirmative answer, and those objections are set out in the case. Subject to the answers of this Court to certain questions, the case states that the learned Justice is prepared to find on the evidence that an industrial dispute as aforesaid exists as between the claimant and its members and most of the respondents named in the first schedule of the order of reference.

Five questions are submitted for the consideration of the Full Court. They are as follow:—(1) Has the Court of Conciliation and Arbitration power to prescribe or award wages other than minimum rates of wages? (2) Is the claim set out in the order of reference on its true construction a claim for minimum rates? (3) If an industrial dispute be found to exist as to the said claim, would the said Court be at liberty to prescribe or award minimum rates thereunder? (4) If a claim is for a fixed rate and the claim were granted simpliciter (in whole or in part), would the employer be prohibited from paying more than the wage prescribed, and would the employee be prevented from receiving more? (5) What is the proper decision for me as a Justice of the High Court to give under sec. 21AA as to claim 1?

Before categorically answering those questions it is desirable to refer to the terms of the claim and to state generally the result of the argument. The claim, which is printed, includes wages, hours, overtime, annual leave and other matters. As to wages, the claim is in these terms:—"1. The wages of a shipmaster or other officer covered by this claim shall be based upon the gross registered tonnage of the vessel upon which such master or other officer is employed (or was last employed upon), and such wages shall be paid in accordance with the rates and grading hereunder written, that is to say:—Upon a vessel of 1,000 tons or under—master, £720 per annum," &c. "And for each and every 1,000 tons (or fraction thereof) over 1,000 tons the additional sums hereunder shall be paid: master, £60 per annum," &c. There is a clause of the claim (No. 10) which provides:—"The employer shall enter into a written contract embodying the terms of these presents with each master and officer in his service... All ships' articles shall be deemed to incorporate these presents," &c. In the course of the argument it very clearly appeared that, though both sides were fully represented, no learned counsel contended that the sums claimed could be construed as a maximum. One thing must be steadily borne in mind: the claim is by employees on employers, and is not addressed to the Court. If the employers had acceded, the Court would never have been concerned. The Court is only concerned when the dispute stage is reached, if it is reached. So we have merely to consider how the claim is to be read as a demand for better conditions.

Now, the sum (say) of £720 per annum must be claimed as a sum which is to be (1) inalterable by increase only, or (2) inalterable either by diminution or increase, or (3) inalterable by diminution only. "Inalterable" means by the party addressed—any subsequent power of the Court must for this purpose be disregarded. The first possibility may be dismissed at once as outside all contemplation. The second possibility is not supported by any party at the Bar. The words of the claim do not say "£720 and neither more nor less." Nor is there anything to imply that rigidity. If, for instance, the employers had replied "We agree to pay £720 at least, and also insist that we are at liberty to pay £1,000 to a master if we consider him worth it," could it have been said there was a refusal to accede to the terms of the claim? Clearly not. Suppose that there had been a simple consent and that in pursuance of clause 10 a contract had been made in the same terms, would the contract not have meant that, provided the stipulated sum, £720, was paid, the bargain was kept even though more was paid to another? Consequently the second possibility may be put aside, for without some very clear provision—either express or by way of necessary implication—it cannot be assumed that a demand that there "shall be paid" £720 includes a prohibition against paying more in any particular case if both employer and employee agree. The third possibility is the only one reasonably to be arrived at, namely, that the claim means £720, for example, and not less than £720, nothing being expressed or implied as to whether or not that sum may be increased. As to increase the claim is silent. The second question should be answered accordingly.

That question being so answered, we can better deal with the first question. Though placed first, it is really contingent on the second. If the claim is, on its true construction, a claim for minimum rates, and not for a maximum, or a rate inalterable up or down—that is, both minimum and maximum—it is plain the first question is mainly hypothetical in any case. Learned counsel stated that up to the present no request to fix a maximum rate has been made except on the basis that the claim was to be construed as implying a maximum. True, learned counsel reserved the right, if ever so advised, to make such a request, but up to the present none has been made. Even supposing a request had been made to fix a maximum where a minimum claim had been made, the first question goes beyond that and is hypothetical. So far as it is general, it is of such importance that the fullest Bench possible should hear it. Events have prevented the whole Court from sitting at this moment, and the great general importance of the point is one additional reason for not departing from the rule of the Court to refrain from giving answers to hypothetical questions.

The third question is obviously beyond the facts of the case. According to par. 3 (a) of the case, the objection was that the Court has no power to prescribe wages other than minimum rates of wages; the only objection to minimum rates in this case being (par. 3 (b)) that the minimum rates were not claimed. As we are clear that minimum rates are claimed, the third question does not arise, and, if it does, it was, in the event now determined by our view of the claim, impliedly conceded. The fourth question clearly is beyond the scope of the present proceedings under sec. 21AA, and therefore ought not to be answered.

The fifth question is to be understood as asked on the supposition that the learned Justice finds all the facts necessary to constitute the dispute. On that supposition, his proper decision is that there is an industrial dispute as to claim 1. That decision, in whatever terms framed, will of course be governed as to the nature of the dispute by the answer we give to the second question.

The categorical answers to the several questions so far as they are proper to answer, and to be understood by the light of the foregoing reasons are as follows: (1) No answer—the question being hypothetical; (2) Yes; (3) and (4) No answer—the question being hypothetical; (5) The proper decision is that an industrial dispute exists between the parties as to claim 1.

Higgins J.

I regret that no answer is to be given to question 1, either by this Full Court or by the Full Bench, as to the power of the Court of Conciliation to prescribe wages other than minimum rates of wages.

As appears by par. 3 of the case stated, objection was taken by many respondents to any finding that a dispute extending beyond one State existed on one ground, comprising three steps in argument: that the Court of Conciliation has no power to prescribe wages other than minimum rates; that on its true construction the claim is for a fixed rate (that is, applicable invariably to the men covered by the description); that it is therefore the duty of the Justice to decide that there is no dispute extending (for the purposes of the Act).

The points raised constitute one ground, put almost into the form of a syllogism; and the first question relates to the first proposition of the syllogism: Has the Court of Conciliation a power to prescribe wages other than minimum rates of wages? The doubt is caused by the words of sec. 40 (1) (b); and it would be of great help to the Court of Conciliation as well as to any Justice sitting in Chambers if the doubt were removed. How is the question "hypothetical"? Unless we are to treat every question as hypothetical if we think that some other answer of law ought to be sufficient for present purposes and that the question is difficult, I cannot understand the use of the term here. The question is certainly not hypothetical, taken by itself; and it is a question of pure law. The fact that the answer of the Full Court would be a guide not only in the present case, but in other cases where the question has arisen and will arise, is not a reason for refusing to answer; it is an additional reason for giving an answer. The question is asked of this Court under sec. 18 of the Judiciary Act, which allows a Justice when sitting alone, to "state any case or reserve any question for the consideration of a Full Court." There is no limitation expressed; but probably it is implied that the question must be one arising, directly or incidentally, in the course of the proceedings before the Justice. What the Justice has to decide is whether there is a dispute extending beyond one State: and the Full Court cannot decide that matter at all. The Justice, in my opinion, can put before the Full Court a difficulty of law which arises in the proceeding, with the view of getting assistance which may help him towards his decision. Seeing that the decision of the Justice under sec. 21AA of the Conciliation Act is to be "final and conclusive," and not subject to any appeal, prohibition, &c., it is, in my opinion, extremely desirable that the Justice concerned, the parties and the public should have the benefit of the judgment of the Full Court in a difficulty so formidable; but I suppose that the Justice will, unwillingly, have to rely hereafter on his own conclusions.

The second question is: Is the claim set out in the order of reference on its true construction a claim for minimum rates? The claim is set out in the judgment of my brother Isaacs. Substantially it is, e.g., for masters upon vessels of 1,000 tons or under, that their wages "shall be paid" at the rate of £720 per annum. This is not a claim for a minimum rate; the idea of minimum is not before the mind. They want the salary of £720. I do not use the fact that claimant's counsel, when before me in Chambers, disclaimed the idea of asking for a minimum; I look solely at the words used in the log. Claim 10 of the log, that "the employer shall enter into a written contract embodying the terms of these presents," confirms the view that this claim is not for a minimum.

In my opinion, question 3 should be answered in the affirmative: If an industrial dispute be found to exist as to the said claim, would the said Court be at liberty to prescribe or award minimum rates thereunder? When a claim for uniform wages is made for a defined class, it is, in my opinion, competent for the Court of Conciliation to prescribe wages with the condition that they shall be minimum wages only.

The fourth question must be admitted to be a question more fitted for the Court of Conciliation to put than for the Justice sitting under sec. 21AA; but I thought it better to try to save the parties the expense of a second case stated.

I concur in the answer to the fifth question.

Gavan Duffy J.

concurred in the answers to the questions proposed by Isaacs and Starke JJ.

Questions answered accordingly.

Solicitors for the claimant, Loughrey & Douglas.

Solicitors for the respondents, Malleson, Stewart, Stawell & Nankivell; Braham & Pirani.