R v Commonwealth Court of Conciliation & Arbitration & the Australian Tramway Employees' Association [1920] HCA 82; (1920) 29 CLR 106 (9 December 1920)

The King against The Commonwealth Court of Conciliation and Arbitration and the Australian Tramway Employees' Association.

By memorandum of agreement dated 18th October 1919 made between the Australian Tramway Employees' Association, an organization registered under the Commonwealth Conciliation and Arbitration Act, of the one part and the North Melbourne Electric Tramways and Lighting Co. Ltd. of the other part, certain rates of pay and conditions of employment were agreed on for members of the Association employed by the Company. It was an express term of the agreement that it should continue in force till 1st May 1920. This agreement was made in settlement of a dispute which was duly before the Commonwealth Court of Conciliation and Arbitration and was certified on 31st October 1919 under sec. 24 of the Commonwealth Conciliation and Arbitration Act 1904-1918, and filed in the office of the Registrar.

On 17th February 1920 a summons was issued out of the Commonwealth Arbitration Court on behalf of the Association calling on the Company to show cause why the agreement referred to above should not be varied by inserting therein increased rates of pay for certain classes of employees. It was not disputed that the increased rates sought in this proceeding were within the ambit of the original dispute. On 18th May 1920 the President of the Arbitration Court made an order on this summons that the agreement should be varied by substituting higher rates of wages for various classes of employees as from 1st January 1920. The Company obtained an order nisi for prohibition against further proceedings in respect of so much of the said order as prescribed higher rates of wages from 1st January to 31st March 1920 and from 1st April 1920 to the date of the order.

The question for decision is whether the President had jurisdiction to vary the provisions of the agreement as from a date antecedent to the making of the order to vary. Sec. 24 of the Act provides that an agreement when certified and filed shall, "as between the parties to the agreement, have the same effect as, and be deemed to be, an award." Sec. 38 (o) provides that the Court shall as regards every industrial dispute of which it has cognizance have power to vary its orders and awards and to reopen any question.

In support of the application Mr. Dixon put two main arguments, viz.: firstly, that under sec. 38 (o) there is no power to vary an award retrospectively—i.e., to alter its provisions as from a date antecedent to the making of the order; and, secondly, that if such a power exists in relation to an award it does not extend to an agreement filed under sec. 24.

In our opinion neither contention can be sustained. As to the first, the power to vary is given by sec. 38 (o) in terms not restricted by any qualification or condition, and we can see nothing to justify the insertion, by way of construction, of a limitation to the effect that no such variation shall have any effect before the date of the order by which it is made. The Gas Employees' Case[1] and the Waterside Workers' Case[2] support, to some extent, the conclusion at which we have arrived. As to the second, we see no escape from the conclusion that the effect of the provision of sec. 24 that the agreement "shall have the same effect as, and be deemed to be, an award" is to attract to agreements filed under that section the power to vary awards contained in sec. 38 (o). The whole scheme of the Act is based on a disregard of agreements, and we can find in its provisions no indication that the Legislature intended to give an agreement filed under sec. 24 an effect in excess of that given to an award made by the Court.

On the whole, we are of opinion that the words of the Act construed in their natural meaning authorize the Court of Arbitration to vary as from an antecedent date an agreement filed under sec. 24, so long as the variation is within the ambit of the original dispute. The rule nisi for prohibition must therefore be discharged.

The question we have to determine is whether under the Commonwealth Conciliation and Arbitration Act there is power to vary retrospectively an agreement made and filed as an award in pursuance of sec. 24 of the Act.

1. The Power to so vary an Award.—Sec. 38 provides that "the Court shall, as regards every industrial dispute of which it has cognizance, have power ... (o) to vary its orders and awards and to reopen any question." Having regard to prior decisions and to the wide terms of this sub-section, the proper construction is that the power contended for does exist in the case of an ordinary "award," that is, where the Court arrives at the terms of the award upon its own view of the facts after contest between the parties. The Court may well consider at the time it makes the award that the provisions it makes are just and proper for the whole period fixed by it for the duration of the award. But the Act reserves by sub-sec. (o) of sec. 38, only conditionally, however, upon an application being made by a proper party under sec. 39, the power to the Court to correct any error that may appear, within the limits of the dispute; and as justice is the main consideration and the period of duration is fixed by the arbitrator, there appears to be no reason why the revision, if it takes place, upon the necessary application, may not extend to the full correction of a proved error.

2. Does an Agreement stand in the same position as an Award?—The agreements referred to in secs. 23 and 24 are agreements for the purpose of arriving at the just terms of an award. They are intended merely as a consensus with regard to what the arbitrator should award, and the process described by sec. 24 is in effect one by which the arbitrator adopts the view of the parties who have reached that stage of the dispute. He has some control over the terms, and the section says it shall have the same effect as, and "be deemed to be, an award." There is nothing in sec. 38 or in any other part of the Act to cut down the comprehensiveness of this provision, and there is nothing in the nature of the thing to call for different treatment. When the parties agree for the purpose of sec. 24, they know they do so for all the purposes of an award. And consequently they know that they agree subject to the powers of variation which attach to an award.

[1] [1919] HCA 24; 27 C.L.R., 72.

[2] [1920] HCA 20; 28 C.L.R., 209.

High Court of Australia

R v Commonwealth Court of Conciliation & Arbitration & the Australian Tramway Employees' Association [1920] HCA 82; (1920) 29 CLR 106 (9 December 1920)

HIGH COURT OF AUSTRALIA