Commonwealth Steamship Owners' Association v Waterside Workers' Federation of Australia [1946] HCA 31; (1946) 73 CLR 66 (2 October 1946)

HIGH COURT OF AUSTRALIA

Commonwealth Steamship Owners' Association Applicant; and Waterside Workers' Federation of Australia Respondent.

H C of A

2 October 1946

Latham C.J., Starke, Dixon, McTiernan and Williams JJ.

Reynolds K.C. (with him D. I. Menzies), for the applicant.

Simon Isaacs, for the respondent.

Reynolds K.C., in reply.

The following judgments were delivered:—

Latham C.J.

This is a case stated under s. 31 (2) of the Commonwealth Conciliation and Arbitration Act. An application has been made for the variation of a term in an award applying to the stevedoring industry. An award affecting that industry was made in 1936, and the Commonwealth Steamship Owners' Association has applied for a variation of clause 12 (i), relating to holidays. The point is taken by the Waterside Workers' Federation of Australia that the National Security (Shipping Co-ordination) Regulations, reg. 63, exclude the jurisdiction of the Arbitration Court to vary its award. The contention is that the effect of reg. 63 is, first, to preserve in operation the terms and conditions of the award except so far as varied under the power conferred by reg. 63 (1) on the Stevedoring Commission, and secondly, to exclude any action by the Court of Arbitration by varying the terms and conditions of that award.

In my opinion, the Regulations do not with sufficient clearness produce the second effect for which the respondent contends. It appears to me that the position is this. The application is made under s. 38 (o) of the Arbitration Act for a variation. If the application succeeds, a variation is made. If a variation is inconsistent with an order made by the Commission, it is ineffective. But, except in so far as an order inconsistent with the award is made by the Commission, the award continues in operation and effect. In this way full effect can be given to both reg. 63 (1) and (2) and s. 38 (o) of the Arbitration Act. There is no clear exclusion of the jurisdiction of the court and, in my opinion, the full operation of the Act can stand together with the Regulations. Accordingly, in my opinion, the questions asked in the case should be answered:—(1) Yes. (2) No.

Starke J.

I agree.

Dixon J.

I am not prepared to disagree.

McTiernan J.

I agree.

Williams J.

I agree.

Questions answered:—(1) Yes. (2) No. Case remitted to his Honour Judge Foster. No order as to costs.

Solicitors for the applicant, Malleson, Stewart & Co.

Solicitor for the respondent, J. Lazarus.