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High Court of Australia |
THE KING v. METAL TRADES EMPLOYERS' ASSOCIATION; Ex parte AMALGAMATED
ENGINEERING UNION, AUSTRALIAN SECTION [1951] HCA 3; (1951)
82 CLR 208
Industrial Arbitration (Cth.)
High Court of Australia
Latham C.J.(1), Dixon(2), McTiernan(3), Webb(4) and Kitto(5) JJ.
CATCHWORDS
Industrial Arbitration (Cth.) - Award - Validity - Enforcement - Powers of Commonwealth Court of Conciliation and Arbitration - Industrial dispute - Ambit of dispute - Overtime - Award prohibiting union of employees from being "directly or indirectly . . . a party to or concerned in any ban" on overtime - Order of compliance - Validity - Order that union cause or procure its members to work overtime without ban - Power to enjoin union from committing a "contravention of this Act" - Whether applicable to contraventions of awards or orders - Power of court to punish contempt - "Superior court of record" - Writ of prohibition issuing out of High Court - The Constitution (63 & 64 Vict. c. 12), s. 75 (v.) - Commonwealth Conciliation and Arbitration Act 1904- 1949 (No. 13 of 1904 - No. 86 of 1949), ss. 17 (3), 29 (b), (c), 32, 59-62, 119.
HEARING
Melbourne, 1950, October 18-20, 23, 24; 1951, March 5. 5:3:1951DECISION
March 5.2. The employers' organization, the Metal Trades Employers' Association, complained in the Arbitration Court that a substantial number of members of the union in various shops were by concerted action refusing to work overtime in accordance with the award. An application was made that the court should make an order under s. 29 (b) of the Commonwealth Conciliation and Arbitration Act 1904-1949, ordering compliance with the award and an order under s. 29 (c) enjoining the organization from committing or continuing any contravention of the Act. Orders were made as sought by the employers' association. The order made under s. 29 (b) required the union to procure its members to work overtime in accordance with the award without any ban, limitation or restriction. The order made under s. 29 (c) enjoined the union from committing a contravention of the Act, namely from being directly or indirectly a party to or concerned in any ban, limitation or restriction upon the working of overtime in accordance with the requirements of the award at any shop, factory or establishment of the members of the association. The association complained to the court that the orders had not been obeyed and on 10th July 1950 the court made an order fining the union 100 pounds for contempt of court. The proceeding now before this Court is the return of an order nisi for prohibition to restrain the association and the court from further proceeding to enforce the provisions of the award in respect of the union relating to overtime and from further proceeding with the order made under s. 29 (b) for compliance with the award and with the order made under s. 29 (c) enjoining the union from committing or continuing a contravention of the Act. The order fining the union has not yet been drawn up, but prohibition is also sought against any enforcement of that order. (at p233)
3. It is important at the outset to emphasise that the High Court is not a court of appeal from the Arbitration Court in respect of either its arbitral or its judicial functions. From time to time arguments are addressed to this Court in prohibition proceedings which would be relevant in proceedings upon appeal but which are quite irrelevant in prohibition proceedings. In prohibition proceedings directed against the Arbitration Court this Court can consider no matters other than matters affecting the jurisdiction of the Arbitration Court: for example, if a question arises in the Arbitration Court as to whether an award has been broken, it is for that court to determine whether there has been a breach of the award. It is not open to this Court in proceedings in prohibition to consider whether the Arbitration Court has decided rightly or wrongly that there has been such a breach. So also the Arbitration Court may interpret an award - rightly or wrongly. It may determine whether or not there has been a breach of the award so interpreted - again rightly or wrongly. In neither case is the decision of the Arbitration Court subject to prohibition in this Court on the ground that this Court might or would, if it were open to this Court to consider the question, be of opinion that the Arbitration Court had reached a wrong decision. (at p233)
4. The first argument for the union is that the relevant provisions of the award are invalid because they are not within the ambit of the industrial dispute in relation to which the award was made. The second argument is that the order which the court purported to make under s. 29 (b) of the Act is not an order for compliance with the award because it requires the union to undertake responsibilities and perform duties exceeding those contained in the award and beyond the powers of the union to perform. The third ground of the order nisi is that the order made under s. 29 (c) is not an order enjoining the union from committing or continuing any contravention of the Act, though it may be an order relating to a contravention of the award. The last ground of the order nisi is that the order fining the union 100 pounds for contempt of court was beyond the powers of the court because the court has no power to inflict penalties for contempt of court. (at p234)
5. The first ground of the order nisi is that the clauses which have been cited were beyond the ambit of the industrial dispute in respect of which the award was made. The award, which has been varied on several occasions, was made in respect of a dispute which was created in 1949 by the service of logs by both the employees' organization and the employers' organization. In the log served on behalf of the employers s. 12 contained this claim: - "An employee or Union of employees or Union officer shall not by any means whatsoever restrict or attempt to restrict any worker from working any overtime that may be required and allowable under this award." (at p234)
6. This claim was not conceded by the union. Therefore there was a dispute with respect to the responsibilities of the union in relation to the observance of overtime provisions by any workers, including, therefore, the members of the union, and the dispute particularly referred to the relation of the union to any means whereby the working of overtime in accordance with the award might be restricted. Accordingly not only the question of working overtime but also the question of the relation of the union to any obligation which might be imposed by an award upon the members to work overtime was a matter which was in dispute between the parties. The clauses included in the award provided that the employees bound by the award should work reasonable overtime as required by the employer and, further, that the union should not in any way, whether directly or indirectly, be a party to or concerned in any ban, limitation or restriction upon the working of overtime in accordance with the requirements of the award. It is, I think, clear that these provisions relate to matters which were in dispute between the parties. (at p234)
7. It is not contended that the court did not have jurisdiction to include some provisions with respect to overtime in its award and, further, it was expressly conceded that the court might, as a condition of reduction of hours to forty hours per week, impose conditions as to overtime. Indeed, the only attack upon the clause was with respect to the provision that no organization should "indirectly" be a party to or concerned in any ban, limitation or restriction upon the working of overtime in accordance with the award. It was argued that, though the ambit of the dispute might be such as to justify a clause in the award prohibiting an organization being directly a party to or concerned in any ban, &c., it was beyond the jurisdiction of the court to make any provision with respect to a party being indirectly so concerned. I admit that I am unable fully to appreciate some of the arguments produced in support of this proposition. There were general statements to the effect that the clause went too far, but it seems to me obvious that if the object (as was evidently the case) of the clause was to secure an effective observance of the award, the Arbitration Court, unless it were remarkably naive and innocent, would be more concerned with attaching responsibility for indirect action by a union in relation to a breach of an award than for direct action by the union. In the case of direct action the union could not dispute its responsibility. But if the officers of a union were either weak or complacent or defiant, the obvious course would be to avoid all ostensible and active implication in the placing of any restriction upon overtime. The course which would naturally be adopted would be to abstain from preventing what would stoutly be asserted to be independent action of groups of members. It appears, to me therefore, that a prohibition of the union being indirectly concerned in bans upon overtime was a natural and appropriate provision to include in the award. Accordingly I am of opinion that the first ground of the order nisi has not been shown to be well founded. (at p235)
8. The second ground of the order nisi is that the order purporting to be made under s. 29 (b) of the Act was not an order ordering compliance with the award because it required the union "to procure the members to work overtime in accordance with the award without any ban upon overtime". One point made is that the order is not an order for compliance with the award because it does not simply order that some particular provision of the award should be obeyed. In my opinion there is no substance in this objection. Section 29 (b) provides that the court shall have power "to order compliance with an order or award proved to the satisfaction of the court to have been broken or not observed". An award is binding on the parties thereto. The award of its own force binds the parties: see the Act, s. 50. If, therefore, s. 29 (b) means only that the court shall have power to order compliance with an award in the sense that it may direct compliance with some particular term of the award, s. 29 (b) is quite ineffective to produce any result whatever. In R. v. Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett [1945] HCA 50; (1945) 70 CLR 141 , the Court had to consider the provisions of s. 58E, which gave power to the court to give directions "for the performance or observance" of the rules of an organization. An election had been held and there was a dispute as to the persons who were validly elected. Under s. 58E the Arbitration Court made an order that certain individuals should be recognized as officers of the union. The rules of the union said nothing about recognizing people as officers, but it was held that under s. 58E the court had power to give detailed directions for the doing of acts or the observance of forbearances in the recognition of persons held by the court to have been duly elected as officers of the union which acts and forbearances would (in the judgment of the Arbitration Court) constitute performance or observance of the rules: see (1945) 70 CLR, at pp 156, 157, 163, 170, 174 . In my opinion the same principle should be applied in the interpretation of s. 29 (b). That section authorizes the court to order a party bound by an award to do acts or observe forbearances which in the circumstances are in the judgment of the court necessary or desirable in order to bring about observance of the award. As I have already said, unless the section is construed in this manner an order made under the section would merely repeat the contents of an award which already was binding. (at p236)
9. There is a further objection to the order for compliance made under s. 29 (b). It is contended that an order for compliance with an award must be an order which relates to the past, that it must be an order which is directed to making good past breaches and that the power given by s. 29 (b) does not include power to order any acts in the way of observance of the award to be performed in futuro. There is no reason whatever in the words of the section for limiting them in the suggested manner. The most obvious method of ordering compliance with an award is to tell the people concerned that in future they must obey the terms of the award. (at p236)
10. It is sought to support the argument by an analysis of the history of the Act. It is pointed out that s. 29 (b), providing for orders for compliance with awards, has been in the Act in one section or another from the first enactment of the Act in 1904: see e.g., Commonwealth Conciliation and Arbitration Act 1904-1934, s. 38 (da). So also the provision contained in s. 29 (c) with reference to enjoining organizations or persons from committing or continuing any contravention of the Act has been contained in the Act since 1904: see the 1904 Act, s. 38 (e). For many years, namely from 1904 to the enactment of Act No. 43 of 1930, s. 48 also was included in the Act. That section in its various forms provided for the making of orders by various courts in the nature of a mandamus or injunction to compel compliance with an award or to restrain its breach or to enjoin a person (or, after Act No. 31 of 1920, an organization) from committing any contravention of an award or, in the later forms of the section, of the Act. If after notice of such order, any person was guilty of any contravention of an award or of the Act he was subject to a penalty of 100 pounds or three months' imprisonment. This section was amended from time to time. It disappeared in 1930. An argument was presented to the Court to the effect that the coexistence of s. 48 and the provision now contained in s. 29 (b) of the present Act showed that s. 48 referred to the future only and that s. 29 (b) or its former equivalents referred only to the past, with the result that no order could be made under s. 29 (b) for compliance with an award except in order to remedy past defaults. The consequence would be that where a clause of an award was (as in the present case) negative in its terms, no order could be made under s. 29 (b) for compliance with that term of the award in the future. (at p237)
11. Where provisions in a statute are ambiguous reference may be made to the history of the statute in an endeavour to ascertain its meaning. There is, however, no ambiguity in s. 29 (b). The words "to order compliance with an . . . award" plainly cover the giving of a direction that the award shall be observed in the future as well as a direction that past defaults as, e.g., by the failure to pay the award rate of wages, should be remedied by appropriate action. But even if the complicated history of the legislation is considered, all that it can show, when the maximum effect is given to the argument presented, is that when s. 48 appeared in the former Acts concurrently with provisions corresponding to s. 29 (b) it might have been necessary, in order to afford separate fields of operation for the two provisions, to interpret the equivalents of s. 29 (b) in the limited sense proposed. This argument assumes and, in my opinion, without any justification, that there can never be any overlapping or duplication between provisions of a statute. Further, the restricted interpretation which, it is suggested, should properly be attached to s. 29 (b) depended in the past upon the contemporaneous presence in the Act of s. 48. Section 48 has now disappeared and therefore the ground of the argument for the restricted interpretation has also disappeared. (at p238)
12. It is further argued that an order that the union do procure the members of the union to work overtime without any ban is not an order requiring the union to comply with the term of the award that the union shall not directly or indirectly be a party to or concerned in any ban &c. upon the working of overtime. It is in my opinion a matter for the Arbitration Court to determine whether or not a particular course of action is a course of action which will procure compliance with an award. That court is in a position to know, much better than the High Court, what officers of a union can get their members to do if the officers really want them to do it. It is for the Arbitration Court to determine whether efforts of the union officers to get the men to cease their defiance of the award should be taken at their face value, and whether they can and should do more than they have done to give effect to the responsibility of the union under the award. It is not for this Court to review the discretion which the Arbitration Court exercises in relation to a particular means of securing compliance with an award. The particular form of order which the Arbitration Court adopts for the purpose of securing compliance with an award cannot raise any question of jurisdiction unless indeed it could be shown that the alleged order for compliance was so entirely unconnected with any of the terms of the award that the making of the order could not possibly be regarded as a real exercise of the powers conferred by s. 29 (b). There is no foundation for such an argument in the present case. (at p238)
13. The third ground of the order nisi relates to the order made under s. 29 (c). That was an order enjoining the organization "from committing a contravention of the said Act" namely from "directly or indirectly being a party to or concerned in any ban, limitation or restriction upon the working of overtime in accordance with" the award. (at p238)
14. The point made in support of this ground is that a breach of an award is not itself a "contravention of the Act". Section 62 of the Act provides that no person shall wilfully make default in compliance with any order or award. Such wilful default is therefore an offence against the Act, but a breach or non-observance of an award which is not wilful is not made an offence by any provision of the Act. Section 59 provides that where any organization or person bound by an order or award has committed any breach or non-observance of any term of an order or award certain penalties may be imposed by the court or by certain other courts. Section 59 (c) provides that any such penalty may be sued for an recovered by the Registrar and certain other persons. This section does not create an offence. It provides for an action for penalties. It was not argued that, as far as the breach of the award was concerned, there had been a wilful breach of the award - though it would in my opinion be entirely a matter for the Arbitration Court, and not for this Court, to determine whether particular facts showed a wilful breach of the award. The case before this Court was argued upon the basis that the only breach of the award by the union which was alleged was not charged as a breach which was wilful. It was, therefore, said that the non-wilful breach of the award was not "a contravention of this Act" and therefore could not be the subject matter of an injunction under s. 29 (c). (at p239)
15. Section 29 (c) refers to a contravention of the Act. It is pointed out that in several sections separate references are made to breaches of the Act and breaches of an award: see, e.g., ss. 33, 61, 64. This is true, but in my opinion the words "contravention of this Act" were chosen in order to include failures to observe provisions of the Act which did not amount to offences, as well as actual offences against the Act. The term "contravention" is plainly used in this sense in s. 27, which relates to State authorities dealing with industrial disputes which are within the sphere of action of the Commonwealth Court. Section 27 (2) provides that an order, award, &c. of a State Industrial Authority made "in contravention of an order" made by the Commonwealth Court under the section shall "to the extent of the contravention" be void. A State Industrial Authority would not commit an offence by making an order dealing with the industrial matter in question but nevertheless an award made by such an authority could be an award in "contravention" of an order by the Commonwealth Court, that is to say, it could be inconsistent with the terms of such an order. "Contravention" should be interpreted in the same sense in s. 29 (c). (at p239)
16. Section 59 of the Act provides for the imposition of penalties in the case of a breach or non-observance of an award. A breach of an award which subjects a person to an action for penalties may fairly be described as something done in contravention of the Act. There is another and independent argument which supports this conclusion. Section 50 provides that an award shall be binding upon certain persons. A breach of an award which the Act declares to be binding upon a person is therefore a contravention of the Act - of s. 50 thereof. Accordingly, in my opinion, though a non-wilful breach of an award is not an offence against the Act, it is nevertheless a contravention of the Act. Thus in my opinion the third ground of the order nisi fails. (at p240)
17. The final ground of the order nisi refers to the order fining the union 100 pounds for contempt of court. It is contended that the court now has no power to deal with contempt of court. In the Commonwealth Conciliation and Arbitration Act 1904-1934, s. 83 made it an offence for a person "wilfully to insult or disturb the court, or interrupt the proceedings of the court, or use any insulting language towards the court, or by writing or speech use words calculated to improperly influence the court . . . or to bring the court into disrepute or be guilty in any manner of wilful contempt of the court". Section 83 (2) in that Act provided as follows: - "The court shall have the power of a superior Court of Record to punish by attachment and committal any person whom it finds to have been guilty of contempt of the Court." (at p240)
18. Section 83A made it an offence to create a disturbance in or near the court. Section 112 reproduces s. 83A in relation to both the court and conciliation commissioners. In the present Act (1904-1949) there is no repetition of s. 83. That section was repealed. It is therefore argued that the powers of the court to punish for contempt have been abolished. (at p240)
19. It will be observed that s. 83 (2) in the former Act expressly conferred upon a court a specific power to punish by attachment and committal for contempt of court and that it did so by reference only to "the power of a superior Court of Record". It was that power which the Arbitration Court was to have though it was not then a superior court, though it was a court of record. (at p240)
20. The 1947 Act repealed s. 83 and introduced s. 17 (3). This section provides that "The Court shall be a superior Court of Record". In the earlier forms of the Act (e.g., 1904-1934 Act, s. 11) it was provided simply that the court should be a court of record. Under the new Act it is to be a superior court of record. What did Parliament intend when it made this express amendment of the law? (at p240)
21. I approach this question by stating the ordinary characteristics of a superior court and considering the Arbitration Court in relation to each of them. (at p240)
22. In the first place, the orders of a superior court are assumed to be valid until the contrary is shown, but this does not mean that a court cannot be a superior court unless it has unlimited jurisdiction: see, for example, Ex parte Fernandez (1861) 10 CB (NS), at pp 42, 43 (142 ER, at p 365) . The Court of Arbitration is not a court of general unlimited jurisdiction and therefore, notwithstanding s. 17 (3), does not possess this characteristic of a superior court: see R. v. Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust.) Ltd. [1949] HCA 33; (1949) 78 CLR 389, at p 399 . Secondly, the officers of a superior court are protected in relation to executions effected by them, even though the orders under which they act are void. The officers of the Arbitration Court however, do not act in the execution of judgments or orders and this ordinary characteristic of a superior court has no practical significance in relation to the Arbitration Court. Thirdly, certiorari does not go to a superior court. But it was not necessary to enact s. 17 (3) in order to bring about this result in the case of the Arbitration Court because s. 32 of the Act provides that a judgment, order or award of the court shall not be challenged, appealed against, reviewed, quashed or called in question in any court on any ground whatever. Thus s. 32 had already taken away certiorari in relation to the court and s. 17 (3) was not necessary for that purpose. Fourthly, in general, prohibition and mandamus do not go to a superior court. In the case of the Arbitration Court, however, prohibition and mandamus do go in appropriate cases under s. 75 (v.) of the Constitution, as has been decided many times. See the cases cited in Australian Coal and Shale Employees' Federation v. Aberfield Coal Mining Co. Ltd. [1942] HCA 23; (1942) 66 CLR 161, at p 176 . (at p241)
23. Thus, so far as the four attributes of the superior court which have been mentioned are concerned, s. 17 (3) of the Act produces little, if any, effect. (at p241)
24. But, fifthly, a further and most important attribute of a superior court is that it has power to punish for contempt of court. The power to punish for contempt has for many years been the distinguishing characteristic of a superior court: see Halsbury's Laws of England, 2nd ed., vol. 7, p. 2 - "The superior courts have an inherent jurisdiction to punish criminal contempt by the summary process of attachment or committal in cases where indictment or information is not calculated to serve the ends of justice." In Ex parte Fernandez [1861] EngR 556; (1861) 10 CB (NS) 3 (142 ER 349) the question was whether a court of assize had power to imprison and fine for contempt of court. All the learned judges held, as Erle C.J. said in arguendo (1861) 10 CB (NS), at p 6 (142 ER, at p 351) , that "It is the undoubted right of a superior court to commit for contempt" The question which was considered to arise was whether the court of assize was a superior court. If that were the case then it followed as of course that it had power to commit for contempt. (The other question in the case was whether the warrant of commitment was sufficiently specific, a question which does not arise in the present case.) Byles J. said (1861) 10 CB (NS), at pp 57, 58 (142 ER, at p 371) : "It is plain, upon the authorities and is admitted, that a superior court may commit for contempt of court in terms much more general than the language of this warrant. That power has been decided to belong not only to the High Court of Parliament, that is, to the House of Lords and to the House of Commons, but also to the Courts of Queen's Bench, Common Pleas and Exchequer and to all superior courts of record. The main question, therefore, is whether a court of assize be one of the superior courts of record." (at p242)
25. In R. v. Lefroy (1873) LR 8 QB 134 there was an examination of the distinction between a superior and an inferior court in relation to the power to fine and imprison for contempts committed out of court. It was said that "the superior courts have exercised this power from time immemorial". Quain J. (1873) LR 8 QB, at p 140 , quoting from Blackstone's Commentaries, (1841), vol. 4, p. 232, said that a power to commit for contempt so as to secure the administration of justice by the courts from disobedience and contempt "must be an inseparable attendant upon any superior tribunal. Accordingly we find it actually exercised as early as the annals of our laws extend". See also Ex parte Goldsbrough Mort & Co. Ltd.; Re Magrath (1932) 32 SR (NSW) 338, at p 341; 49 WN 137, at p 138 . There have been discussions as to whether the power to commit for contempt has been exercised from time immemorial in the case of libels upon the court or a judge. But ever since the case of R. v. Almon [1765] EngR 25; (1765) Wilm 243 (97 ER 94) it has been held that superior courts undoubtedly possess this power. Holdsworth, History of English Law 2nd ed., vol. 3, p. 394, after referring to the criticisms of R. v. Almon [1765] EngR 25; (1765) Wilm 243 (97 ER 94) , contained in articles in the Law Quarterly Review by C. J. Fox, says that, in spite of the absence of prior authority for some of the propositions laid down in R. v. Almon [1765] EngR 25; (1765) Wilm 243 (97 ER 94) "it was accepted as correct and it forms the basis of the modern law on this subject". (at p242)
26. Under s. 83 of the 1904-1934 Act, to disturb the court was made an offence (sub-s. (1)) and the court was given part of the power of a superior court to punish for contempt (sub-s. (2)). It was a power to punish by attachment and committal. In 1945 in John Fairfax & Sons Pty. Ltd. v. Morrison (1945) ALR 297 , this Court held that sub-s. (2) of s. 83 did not purport to confer upon the Arbitration Court the common-law power of punishing for contempt which was possessed by superior courts of record, but only the power of a superior court of record to punish by attachment and committal any person whom it found to have been guilty of contempt of the court. It was held, therefore, that the court had no power to fine a person found guilty of contempt of court. In 1947 the Act was amended by the repeal of s. 83 and the introduction of s. 17 (3). Section 17 (3) deals with the position as disclosed by the decision in John Fairfax & Sons Pty. Ltd. v. Morrison (1945) ALR 297 . The section, in my opinion means (unless it is almost meaningless) that the Arbitration Court has all the powers of a superior court of record except and in so far as there are specific provisions (to some of which reference has already been made) which have the effect of limiting those powers. The one power of a superior court of record as to which the Act contains no limitation is the power to punish for contempt of court. In my opinion the object and the effect of s. 17 (3) is to confer upon the Arbitration Court the full power of superior courts of record to punish for contempt which the common law has attributed to them for very many years. (at p243)
27. Wilful disobedience to an order of the court is contempt of a criminal nature. It is not merely a means of enforcing a civil right of a litigant. This distinction is made clear in In re Freston (1883) 11 QBD 545 . Brett M.R. (1883) 11 QBD, at p 553 , referring to Re M'Williams (1803) 1 Sch & Lef 174 , says that if the ground of a proceeding is not a debt but is a contempt "as for instance, disobedience of some order of the Court, where the object was not to recover a debt by means of the process, the consequences of such a process are in some degree of a criminal nature." See also per Lindley L.J. (1883) 11 QBD, at p 556 . (at p243)
28. In the present case the charge against the union was that it had wilfully disobeyed the orders of the court directing compliance with the award by causing or procuring overtime to be worked and restraining further contraventions of the Act. It was for the Arbitration Court to determine whether there had been disobedience of the orders and whether that disobedience was wilful. Those are not questions which can be considered by this court upon proceedings by way of prohibition. If the Arbitration Court has jurisdiction to punish for contempt, as, in my opinion, it has, the exercise of that jurisdiction is for the reasons which I have stated, a matter for that court. There is no appeal from its decision to this Court. (at p244)
29. Accordingly I am of opinion that the order nisi in the Amalgamated Engineering Union's case should be discharged. (at p244)
DIXON J. The prosecutor seeks a writ of prohibition in respect of four orders of the Court of Conciliation and Arbitration: first an order made on 8th September 1947 varying an award, second an order made on 5th June 1950 in purported pursuance of s. 29 (b) of the Commonwealth Conciliation and Arbitration Act 1904-1949 ordering compliance with certain provisions introduced into the award by the order of variation, third an order also made on 5th June 1950 but in purported pursuance of s. 29 (c) of the Act restraining breaches of such provisions, and fourth an order not yet drawn up made on 10th July 1950 fining the prosecutor for contempt of court. (at p244)
2. The first of these orders, that varying the award, dealt with the Arbitration Court's determination that the standard hours of work should be forty hours a week. The award varied is the Metal Trades Award 1941 as consolidated by an order of 13th September 1946. The prosecutor is an organization of employees bound by that award. The variation applied the principle of the determination concerning standard hours to the award and introduced into the award some clauses containing accompanying conditions or incidental provisions. These included the terms in relation to the working of overtime. The same terms were inserted in two different places in the award, in one place as clause 11 (hh) governing shift workers and in the other place as clause 13 (k) governing day workers. In each case there are three paragraphs to the clause. Paragraph (1) provides that an employer may require any employee to work reasonable overtime at overtime rates and that such employees shall work overtime in accordance with such requirement. Paragraph (2) provides that no organization party to the award shall in any way directly or indirectly be a party to or concerned in any ban, limitation or restriction upon the working of overtime in accordance with the requirements of the sub-clause. Paragraph (3) provides that the sub-clause shall remain in operation unless otherwise determined by an authority competent to do so under the Act. The writ of prohibition sought with reference to the order of variation is confined to a portion only of the purported operation of par. (2) of the sub-clause. The prosecutor desires to prohibit the Arbitration Court from proceeding upon so much of that paragraph as provides that no organization party to the award shall in any way indirectly be concerned in any ban, limitation or restriction upon the working of overtime in accordance with the requirement of the sub-clause. As to the rest of the operation of par. (2) no objection is made. (at p245)
3. But it is contended that in forbidding an organization to be indirectly concerned in a ban &c., the paragraph goes too far and exceeds the jurisdiction of the Arbitration Court. It is said that the words set a vague criterion of liability capable of what may be called an extensible application and that in the ambit or nature of the industrial dispute settled by the award no warrant can be found for such a provision as they make. The dispute arose out of a log of demands on behalf of the employees and another log of demands on behalf of the employers. The former contained claims with respect to standard hours and the latter a claim with respect to the obligation to work overtime. I find it unnecessary to consider the scope, or the effect upon this question, of the employers' claim with respect to the working of overtime, because, in my opinion, it was competent to the court independently of that claim to adopt in full the paragraph portion of the operation of which is impugned. The ground upon which I think that it was open to the Arbitration Court to introduce the paragraph into the award is that it is a relevant and appropriate condition, relevant and appropriate to the relief awarded to the organization and its members in the determination of standard hours. That relief was awarded by the order of variation in consequence of a demand made by the organization for shorter standard working hours which resulted in a dispute on the subject. It is evident that when a reduction of standard hours of work at ordinary rates of pay is under consideration, the effect on output must be regarded and that involves the question whether longer hours will be worked if work at overtime rates is called for. It would be open to the Arbitration Court to treat the two matters as inseparable. It would thus be competent for that court to insist on overtime work as a compensatory condition of granting a reduction in the standard hours of work fixed for ordinary rates of wages. (at p245)
4. As an incident of providing for the performance of such overtime work, I think the Arbitration Court might lawfully bind the organization making the demand to have no part in any restriction upon overtime work which might be practised in disobedience of the principal provision. How far the Arbitration Court should go in framing the prohibition against the organization having any complicity in a ban or limitation or restriction on working overtime as required by the compensatory condition imposed appears to me to be a matter for the judgment and discretion of that court. No doubt the prohibition must be fairly incidental to the principal provision requiring the working of overtime. But it is difficult to see why it is not fairly incidental to such a requirement to insist that the organization shall not be concerned in a restriction calculated to defeat the obligation of the principal provision whether the concern in the restriction is direct or indirect. In my opinion the objection to the order of variation fails and no writ of prohibition should go in respect of any part of par. (2) of the sub-clauses relating to compulsory overtime which the order inserts in the award. (at p246)
5. The second order which it is sought to prohibit is founded upon s. 29 (b) of the Act. Section 29 (b) empowers the Arbitration Court to order compliance with an order or award proved to the satisfaction of the court to have been broken or not observed. The operative part of the order mentions the second paragraphs of the two sub-clauses inserted in the award and orders that certain organizations, including the prosecutor, do comply with such paragraph by causing or procuring that within seven days from the date of the order overtime should be worked in accordance with the clauses (scil. sub-clauses) by the members of the respective organizations employed by certain named employers without any ban limitation or restriction. In support of the contention that this order was outside the scope of s. 29 (b) counsel for the prosecutor adopted an argument as to the meaning of the provision which was advanced with some elaboration in R. v. Commonwealth Court of Conciliation and Arbitration; Ex parte Federated Gas Employees Industrial Union Post, p. 267. , a case argued with this case. The argument was in effect that s. 29 (b) is confined to orders for the purpose of ensuring that past breaches or non-observances of an order or award are set right. I do not accept the argument and, in dealing with that case, I shall say why I reject it. But, in any event, it is doubtful whether it helps the prosecutor in this case. (at p246)
6. The more serious objection to the order made as under s. 29 (b) is that it goes beyond the tenor of the obligation with which it requires the organizations to comply. The tenor of the obligation is that no organization shall in any way, whether directly or indirectly, be party to or concerned in any ban &c. upon the working of overtime in accordance with the requirements of the sub-clause. How, it may be asked, is a duty to cause or procure members to work overtime without any ban &c. contained in that obligation? To comply with the obligation is it not enough if the organization ceases and desists from any part or concern direct or indirect in any ban &c.? The order requires the organization at its peril to see that its members resume the working of overtime without ban restriction or limitation. That imports an absolute obligation on the part of the organization for the failure of the members or any of them to resume the fulfilment of the duty laid upon them to work reasonable overtime, and, says the prosecutor, it is an obligation different in kind as well as in degree from the negative duty expressed in par. (2) to have no part or concern in a ban, restriction or limitation. Therefore, so the prosecutor contends, the order is not one of compliance with the term of the award. The contention distinguishes, of course, between, on the one hand, the organization acting as a corporate or collective body in the manner appointed by its rules or through its officers, servants or agents and, on the other hand, members or groups of members acting independently and neither exercising nor possessing the authority of the body. (at p247)
7. The answer made by the respondents to this attack upon the order made as under s. 29 (b) may, I think, be divided into three steps. Summarily stated, what they amount to is as follows: - (1) An assertion that, if, as must be assumed, the organization had been party to or concerned in the imposition of a ban, restriction or limitation, the wrongful act could be undone only by the organization causing the men to work overtime; (2) an insistence that the interpretation of the award and the ascertainment of the facts fall within the competence of the Arbitration Court; (3) a reliance upon the principles governing the use of the writ of prohibition; that is to say, the impossibility on prohibition of examining more than the existence of the jurisdiction which the order purports to exercise. If it were not for s. 32 of the Act I think that this answer would not suffice. For, after all, what s. 29 (b) authorizes is an order to comply with an award and that postulates an award and an ascertainable duty arising thereunder. Interpretation may justify the adoption of a particular meaning and the assignment of a particular operation of which the award is capable where it is capable of more than one meaning and operation, but it cannot go further. Given so much, the order must be confined to compliance with the instrument according to its true meaning or some interpretation of which it is capable. But I think the validity of the order is saved by the presence of s. 32 in the Act. It must be borne in mind that we are here concerned only with an alleged excess of the jurisdiction conferred upon the Arbitration Court by the Act. The case does not touch the limitations which the Constitution imposes upon the power of the legislature to confer jurisdiction. The legislature might have conferred power upon the court in terms which would have justified the order. The prosecutor's complaint is simply that the order goes beyond the power which the statute has actually conferred. Now it cannot be denied that the order impugned was made by the Arbitration Court in purported pursuance of s. 29 (b), that it is an attempt to exercise that power and that upon its face the order appears to be an exercise of the power. It is only when you look behind it at the terms of the award that any ground is disclosed for denying that the order falls within s. 29 (b). (at p248)
8. In my opinion in such a case s. 32 operates to give validity to the order. The general policy of the Act is to give efficacy to the completed proceedings of the Arbitration Court and no doubt also of the conciliation commissioners. This can be seen from the provisions contained in s. 32 and in s. 16. No doubt there are instances in the Act where imperative duties or inviolable limitations or restraints are imposed by the Act on the Arbitration Court or the commissioners. When that is the case invalidity affects any transgression of the limitation or restraint and a mistaken decision that the duty is less extensive than it is does not relieve the court or the commissioner from its imperative obligation. In such cases prerogative writs will issue for the enforcement of the duty or restraint. An example may be seen in the mutual operation of ss. 13 and 25 of the Act. For it is plain that the boundary between the power of the Arbitration Court and the power of the conciliation commissioners must be maintained absolutely and that the encroachment of one tribunal upon the province of the other must mean invalidity pro tanto. Otherwise there might be conflicting orders or awards of equal authority upon the same subject. Conversely an erroneous decision by one of the tribunals that a matter lies outside its authority and is within the authority of the other can have no effect. The duty of a tribunal to exercise the jurisdiction thus erroneously declined remains imperative and may be enforced by mandamus. Otherwise the matter submitted to the jurisdiction would remain without a valid determination. But these are considerations which go to the interpretation of the particular provisions of the statute and the reason why prohibition and mandamus lie is because, upon the interpretation to which they point, the division of power is absolute and the two jurisdictions are at once mutually exclusive and complementary. There can be no encroachment which is valid and no intermediate field of power allowed to remain mistakenly uncovered or unexercised. The general policy of the Act of conferring validity on determinations once they have been actually made and completed can have no application to such a situation: see R. v. Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust.) Ltd. [1949] HCA 33; (1949) 78 CLR 389, at pp 400, 401 and R. v. Galvin; Ex parte Metal Trades Employers' Association (1949) 77 CLR 432 . (at p249)
9. But, unless from the nature of some particular provision defining or limiting the power of the tribunal it appears to be the true intention that no excess of the power should have any effect, s. 32 (1) (c) and (d) operate to give validity to an order or award notwithstanding that it goes outside the definition of the power as expressed or beyond the limitations by which it is restricted if the order or award does not upon its face exceed the expressed authority of the Arbitration Court and if it relates to the subject matter of the Court's authority and amounts to a bona-fide attempt to exercise a power or powers which the court possesses. In R. v. Hickman; Ex parte Fox and Clinton [1945] HCA 53; (1945) 70 CLR 598, at pp 614-617 , a case concerned with a protective regulation of the same general character as s. 32 (1) (c) and (d), I stated what in my opinion is the relation of such a provision to the jurisdiction of this Court under s. 75 (v.) of the Constitution to grant writs of prohibition and mandamus against officers of the Commonwealth, what is the interpretation placed upon such provisions and what effect should be given to them where the validity of an order or award is challenged upon grounds arising from an Act of Parliament whether immediately or mediately and not because the order or award goes beyond what the Constitution allows. I shall not discuss again the significance or operation of such provisions nor cite the authorities I there mention, but I desire the passage to which I have referred to be read, mutatis mutandis, as part of this judgment. It is enough to say that I am of opinion that s. 32 (1) operates to protect an order or award of the Arbitration Court from invalidation on the ground that the court has not fulfilled the requirements prescribed by the Act for its proceedings or for the exercise of its powers or upon the ground that the limits of the relevant power of the court as expressed in the definition of the power or in some restriction upon it have been exceeded if it appears that the order or award is reasonably capable of reference to a power belonging to the court and relates to the subject matter of the jurisdiction and amounts to a bona-fide attempt to exercise an authority possessed by the court. (at p249)
10. It is perhaps desirable to mention some subsequent cases where the application of provisions of the character of s. 32 (1) have been in question. They are R. v. Commonwealth Rent Controller; Ex parte National Mutual Life Association of Australia Ltd. [1947] HCA 32; (1947) 75 CLR 361, at pp 368, 369 ; R. v. Central Reference Board; Ex parte Thiess (Repairs) Pty. Ltd. [1948] HCA 9; (1948) 77 CLR 123 ; R. v. Murray; Ex parte Proctor [1949] HCA 10; (1949) 77 CLR 387, at pp 398, 399 ; and R. v. Dunphy; Ex parte Grant [1950] HCA 8; (1950) 81 CLR 27 . These cases or some of them relate to limitations considered to be absolute and outside the protection of provisions like s. 32 (1), but they do not detract from the principle and, on the contrary, support it. (at p250)
11. The order of 5th June 1950 made in purported pursuance of s. 29 (b) is in my opinion protected from invalidity by the operation of s. 32 (1) (c) and (d). The order is based on s. 29 (b) and is expressed as an order of compliance. It is only when the award behind the order is examined that the question arises whether it does not go beyond compliance with the provisions of the award. It is obviously an attempt to exercise power conferred by the Act and the order deals with a matter which is a subject of the legislative enactment. The constitutional power of the Parliament extends to authorizing such an order and the attach upon the order is on the ground that it goes beyond the definition of the authority actually conferred as expressed in the specific provision by which it is given, viz., s. 29 (b). Such a case comes within the principle upon which s. 32 proceeds and the order is saved by its operation. (at p250)
12. I am therefore of opinion that no writ of prohibition should go in respect of the order of 5th June 1950 made as under s. 29 (b). (at p250)
13. The third order which it is sought to prohibit was made on the same day in the purported exercise of the authority conferred by s. 29 (c). It is expressed to enjoin certain organizations, including the prosecutor, from committing a contravention of the Act, namely from being directly or indirectly a party to or concerned in any ban, limitation or restriction upon the working of overtime in accordance with the requirement of par. (2) of the sub-clauses at any factory or establishment carried on by any member of the respondent employees' organization in New South Wales. (at p250)
14. It will be seen that what this order does is to enjoin future breaches in New South Wales of par. (2) of the sub-clauses as contraventions of the Act. The objection which is made to it on the part of the prosecutors is that s. 29 (c) empowers the court to enjoin contraventions of the Act as distinguished from breaches, contraventions or non-observances of awards and orders and that the order under colour of enjoining against a contravention of the Act restrains breaches of an award. In answer to this it is said first that a breach or non-observance of an award is a contravention of the Act and second that, even if s. 29 (c) failed as an authority for making the order, the power conferred upon the Arbitration Court by s. 29 (b) is wide enough to support an order expressed in the negative form of an injunction as well as one in the positive form of command; the former is as much an order for compliance with an award as the latter. (at p251)
15. The first answer, in spite of its plausible appearance, ought not, I think, to be accepted. There is a question whether the Act formally does make breach or non-observance of an award a contravention of the Act, but I pass it by. The reason why the answer is not a good one is that, as I read it, the Conciliation and Arbitration Act maintains a distinction between infringements of the Act and infringements of awards and when it speaks of contraventions of the Act it is not referring to breaches of or failures to observe awards, even if such breaches or non-observances are contrary to the statute and expose the persons offending against the awards to penal consequences. The distinction is made in the terms in which the following provisions are expressed, viz. : - ss. 31 (1) (a) and (b), 33 (1) (a), 61, 64 (1) and (6) and 80 (1) (c). Indeed it is indicated by s. 29 (b) and (c) when they are considered together. The form of s. 65, which treats proceedings for an offence against the Act as not including the recovery of a penalty under s. 59 for breach or non-observance of an award, follows the distinction and appears to me to confirm the inference that an infringement of an award is not to be treated as included under the expression contravention of the Act. When s. 40 (c) empowers the Arbitration Court in relation to an industrial dispute to fix maximum penalties for any breach or non-observance of a term of an award it marks the difference in the manner in which the statute regards non-compliance with the Act and non-compliance with awards under the Act. The provisions relating to State industrial regulation observe the same distinction when they speak of a "State law dealing with an industrial matter" and "an order, award, decision or determination of a State Industrial Authority": s. 28 (1) and s. 51. Finally the importance attached by the framers of the Act to the enforcement of orders and awards and its treatment of their enforcement as a separate legislative subject tends to make it unlikely that the power to grant an injunction against contraventions of the Act was intended to comprise injunctions against breaches and non-observances of awards: see s. 2 (e) and the heading to Part V. (at p252)
16. The second answer means in effect that an order made under s. 29 (b) for compliance with a term of an order or award imposing a duty to refrain from some act or course of conduct may take the form of an injunction and that there is no reason why the order should not be justified under s. 29 (b), notwithstanding that it is expressed as made upon an order nisi for an injuction pursuant to s. 29 (c). I have come to the conclusion that this contention ought not to be sustained. One reason is that the order contains an express statement enjoining the prosecutor and other organizations from committing a contravention of the Act. It is true that it is followed by a videlicet which defines the contravention and shows that it is limited to par. (2) in the sub-clauses of the award. But I do not think that it can be treated as superfluous. The order is not an injunction against acts amounting to breaches of par. (2) simpliciter. It is against contravening the Act by such conduct and the expression in the context must have the same meaning as contravening the Act has in s. 29 (c). That produces on the face of the order what may be called a legal self-contradiction, once s. 29 (c) is given the meaning I have placed upon it. (at p252)
17. Another reason for rejecting the view that the order may be supported under s. 29 (b) is that s. 29 (b) requires proof that the award has been broken. The order shows on its face that the court took as the foundation for making the order what s. 29 (c) says, not what s. 29 (b) requires, and that means that the necessity of proof of breach of the award did not enter into the question of making the order. This may seem an artificial reason from the standpoint of the actual view taken by the court of the total situation forming the occasion of the two orders of 5th June 1950. But we are here dealing with a question which is independent of the facts behind the orders. The question is whether the attempted exercise of a power thought to be conferred by s. 29 (c) of necessity amounts to an exercise of the power actually conferred by s. 29 (b). The answer is that it does not of necessity amount to the same thing, because the grounds on which the exercise of the two powers proceeds are not entirely the same. Moreover, it must be remembered that the reasons of the Arbitration Court for making two orders instead of one may have included this very consideration. (at p252)
18. A third reason for the conclusion that s. 29 (b) cannot be used to support the order is that in making two orders, one under s. 29 (b) and another under s. 29 (c), the Arbitration Court exercised a discretion based on the supposition that two applicable powers existed which were not identical, whether in scope, purpose or the conditions governing their exercise. Non constat that a second order would have been made, if the Arbitration Court had addressed its discretion to one power only, taking the view that I have adopted, namely that s. 29 (c) is inapplicable. (at p253)
19. Section 32 will not save the validity of the order now under discussion because on its face that order is bad. The videlicet shows that it is outside the power of the Arbitration Court in the sense that it professes to do what the court has no power at all to do, namely to grant an injunction against a breach of the Act constituted by failure to comply with an award and that it is not an attempt to exercise the court's actual jurisdiction. (at p253)
20. For these reasons I am of opinion that the order of 5th June 1950 made in purported pursuance of s. 29 (c) is invalid and a writ of prohibition should issue to restrain further proceedings upon that order. (at p253)
21. The fourth order in respect of which the prosecutor seeks the issue of a writ of prohibition is an order fining the organization 100 pounds for contempt of court. The order, though not drawn up, clearly enough was made by way of punishment for a contempt in not fulfilling or observing the order made on 5th June 1950 in purported pursuance of s. 29 (b) for compliance with par. (2) of the sub-clauses, that is to say the order which, according to the opinion I have expressed, is protected from invalidity by s. 32 (1) (c) and (d). The summons upon which the order was made calls upon the prosecutor and other organizations to answer a charge that they had been guilty of contempt of the Arbitration Court and to show cause why they should not be punished for that they did commit contempt of the Arbitration Court by wilfully disobeying an order of such court. The summons goes on to identify the order so wilfully disobeyed. It will be seen that proceedings, although commenced by a party entitled to the benefit of the order of 5th June 1950, amount to much more than a recourse to civil process to enforce the execution of the order. The contempt charged is treated as a special or criminal contempt and not as a contempt in procedure. The distinction between civil and criminal contempts is well recognized, although when orders restraining or commanding the doing of specific things are defied or disobeyed the remedy by contempt may have a double aspect. This is not an occasion calling for a discussion of the two classes of contempt and of the middle ground upon which they overlap or of the purposes for which the distinction is important. The manner in which it has been treated may be seen from the following cases, though some of them, those relating to the right of appeal, are concerned rather with the nature of the cause or matter in which the contempt order was made than with the character of the contempt: Re Freston (1883) 11 QBD 545, at pp 552, 553, 556, 557 ; Harvey v. Harvey (1884) 26 Ch D 644, at pp 650-653 ; R. v. Barnado (1889) 23 QBD 305, at pp 308, 309 ; O'Shea v. O'Shea and Parnell (1890) 15 PD, at pp 62, 63, 65 ; Re Evans; Evans v. Noton (1893) 1 Ch 252, at p 266 ; Seaward v. Paterson (1897) 1 Ch 545, at pp 555, 556, 559, 560 ; Seldon v. Wilde (1911) 1 KB 701 ; Scott v. Scott (1912) P 241, at pp 249, 268, 269; (1913) AC 417, at pp 440, 455 et seq; Gower v. Gower (1938) P 106. (at p254)
22. It is enough for present purposes to say that the imposition of a fine, as well as the nature of the summons, shows that the order is of a punitive or disciplinary nature. The learned judges of the Arbitration Court in making the order acted in the purported exercise of a jurisdiction to deal summarily with contempts of that court. The jurisdiction asserted depends on s. 17 (3) of the Act, which provides that the Arbitration Court shall be a superior court of record. One of the powers which a superior court of record possesses at common law is to punish summarily for contempts of its judicial authority. The power is not confined to contempts in the face of the court but extends to contempts of the superior court inside and outside the court. It is in virtue of this power belonging to a superior court at common law that the Arbitration Court has made the order now brought into question. (at p254)
23. To my mind the difficulty in sustaining the order as an exercise of a power arising by the common law from the status of the Arbitration Court as a superior court arises from the presence in the Act of specific provisions dealing with the very subject of penalizing the disobedience of orders. Section 59 (1) provides specifically for the imposition by the Arbitration Court, among other courts, of a penalty upon any organization or person bound by an order or award who has committed any breach or non-observance of any term of the order or award. The amount of the penalty is limited to the maximum fixed under s. 40 (c), or if none is fixed the maximum which might be fixed under that provision. The maximum which might be fixed for an organization is 100 pounds. The same maximum is fixed for an employer not a member of an organization. For members of organizations the maximum is 10 pounds. Section 59 (2) names the persons or classes of person who may sue for and recover the penalties incurred under s. 59 (1). They are the Registrar, an Inspector, an organization, if it or its members are affected by the breach or non-observance, a member of any organization, if he is so affected, a party to the order or award and an officer of an organization if it or its members are so affected and if he is authorized by the rules to sue on behalf of the organization. Section 59 (3) gives a court before which proceedings under sub-s. (1) come power to order payment to an employee of an amount due to him under an award which during the preceding twelve months he has been underpaid. Section 60 then authorizes the court to order that the penalty be paid either to Consolidated Revenue or to such organization or person as is specified in the order. Section 61 provides machinery for enforcing payment of the penalty. Section 62 enacts that no person shall wilfully make default in compliance with an order or award: penalty 20 pounds. Section 119 provides that a person who has committed an offence against the Act may be charged before the Arbitration Court and the court may impose the penalty provided by the Act in respect of that offence. As s. 59 (1) expressly gives the Arbitration Court jurisdiction it is unnecessary to consider whether s. 119 would otherwise cover proceedings under s. 59; but it does cover proceedings for an offence under s. 62. A question was raised as to the scope of s. 62 and doubt was thrown on its application to organizations. It is perhaps a little remarkable that the maximum penalty for wilful default in compliance with an order or award should be fixed at so low an amount, but the section has not been altered since it was introduced as s. 49 of the Act of 1904, and in any case the amount of the penalty is no reason for excluding organizations from its operation. They are "persons" as much as other corporate bodies. Sections 59, 60 and 61 contain a carefully considered set of provisions for the enforcement of orders and awards by penal sanctions. Under them the Arbitration Court takes a specifically regulated power. Maximum penalties are fixed by reference to a standard involving a discrimination among three possible objects of the sanctions, viz., an organization, an employer not a member of an organization bound by the order or award and members of an organization. The persons who may proceed for the penalties are carefully defined, the destination of the penalties is dealt with and the mode of enforcing orders for the recovery of penalties is prescribed. None of these conditions or limitations belong to the summary power of punishing contempts which at common law belongs to a superior court and, if in virtue of its being a superior court it may punish for contempt for disobedience of its orders, the Arbitration Court possesses a power which, for the enforcement at all events of judicial orders, enables it to impose fines subject to no limitation of amount, to imprison natural persons and to sequestrate the property of organizations and to do so in proceedings commenced by persons not falling within the enumeration in s. 59 (2) and perhaps to do so even ex mero motu. Section 59 stands in Part V. of the Act, which is headed "Enforcement of orders and awards". There is no ground for saying that it is confined to arbitral as distinguished from judicial orders. It is of course penned in the affirmative, but the carefully framed conditions and limitations it expresses appear to me clearly to imply a negative, namely an intention that the same thing shall not be done without regard to these conditions and limitations. (at p256)
24. The whole question of the enforcement of orders as well as awards having received the particular attention of the legislature and specific statutory provisions having been made for the purpose giving a guarded summary remedy, it must be taken to exclude recourse to the summary jurisdiction belonging at common law to a superior court of record to enforce its orders by fine, imprisonment or sequestration for contempt of its authority. I am therefore of opinion that the order of 10th July 1950 fining the prosecutor organization 100 pounds cannot be supported as an exercise of a power to punish for contempt. The amount of the fine does not exceed the maximum penalty recoverable under s. 59 and it may be asked why cannot the order for the fine be supported under s. 59. The answer is that the jurisdiction given by s. 59 was not exercised. The organization was pronounced guilty of contempt. No consideration was given to the disposition of the penalty. The Arbitration Court, in dealing with the summons, disclaimed resort to the provision, and before this Court counsel for the respondent organization declined to attempt to refer the order to s. 59. The order, if drawn up, would doubtless show upon its face that it was outside s. 59, but it has not been drawn up and I do not think s. 32 is applicable to it. In my opinion the writ of prohibition should go in respect of the order pronounced on 10th July 1950. (at p256)
25. I think that the order nisi should be made absolute for a writ of prohibition prohibiting further proceedings in respect of the order made on 5th June 1950 purporting to enjoin the organizations mentioned in the schedule thereto from committing a contravention of the Act and in respect of the order pronounced on 10th July purporting to fine the prosecutor 100 pounds for contempt of the Arbitration Court. (at p257)
McTIERNAN J. The first question is whether the Commonwealth Court of Conciliation and Arbitration exceeded its jurisdiction in prescribing the prohibition, which is in the Metal Trades Award, against bans on the working of overtime. (at p257)
2. The provision containing this prohibition is attacked on the ground that it is too wide because it extends to any indirect concern in a ban, limitation or restriction. (at p257)
3. It is necessary that the prohibition should be justified by reference to the subject matter of the industrial dispute as defined by the respective logs of the employers and employees. The employers demanded that no union of employees should place restrictions on the working of overtime. The refusal of that demand could have made an industrial dispute if the subject of the demand was an industrial matter within the meaning of the statute. In order to determine that question it would be necessary to consider how far the principle in Seamen's Union of Australasia v. Commonwealth Steamship Owners' Association [1936] HCA 8; (1936) 54 CLR 626 goes. Further, the employers' demand is that unions of employees only should not interfere with the working of overtime, whereas the prohibition in the award may apply to organizations of employers as well as of employees. In my opinion it is not necessary to justify the prohibition relating to bans on overtime by the employers' demand. The hours of work and the related question of overtime were subjects of the industrial dispute, and there could be no doubt that these were industrial matters which came within the industrial dispute determined by the award. The Arbitration Court determined the dispute in relation to those matters by prescribing the right of employers on the one hand and the duty of employees on the other hand in respect of the working of overtime. The prohibition against bans on the working of overtime is ancillary to the prescription of this right and duty. The court has put any conduct involving complicity either as a principal or accessory in banning, limiting or restricting the working of overtime, within the prohibition. In prescribing the prohibition the court has substantially adopted the language of s. 5 of the Crimes Act to describe the nature and extent of the prohibition. It is attacked only on account of its width, because it extends even to any action or inaction by an organization which exhibits only an indirect concern inimical to the fulfilment by employees of their duty to work overtime in accordance with the award. The prohibition is within power because it is ancillary to the provision of the award making the working of overtime a condition of the employment. It cannot be fatal to the prohibition that it is as thorough and detailed as the court considered necessary to make it in order to prevent the frustration of the conditions of the award relating to overtime by the action of any organization which is a party to the award. In my opinion the provision which the court inserted in the award relating to bans on the working of overtime is within the jurisdiction of the court and is valid. (at p258)
4. The second question is whether the order made under s. 29 (b) of the Act is within the jurisdiction of the court. The court ordered the prosecutor to comply with the award by causing or procuring that within seven days from the date of the order overtime should be worked by its members employed by certain employers without any ban, limitation or restriction. This order compels action, presumed to be in accordance with the award, in the future. It is argued that s. 29 (b) gives power to the court only to order that a breach of an award should be repaired. Taking the ordinary meaning of the word "compliance", it is a power to order a person or organization to act in accordance with an award. The words of s. 29 (b) make it plain that its intent is that the court should have this power. The inferences which it was sought to draw from the history of the legislation are too uncertain to justify a construction of s. 29 (b) which would give the court less power than the words of this provision clearly grant to the court. (at p258)
5. It was within the jurisdiction of the court to order the prosecutor to act in accordance with the provision in the award relating to bans on the working of overtime. The order made by the court is not invalid on the ground that it purports to compel future action in accordance with the award. But the action ordered by the court raises the question whether the court has exceeded its power to order compliance with the award. The grant of this power gives the court power to make an effective order. But it is clear that whatever its terms the order must be of the description which the court is given power to make. It was beyond the power of the court to order the prosecutor to do anything which the award did not bind it to do. In my opinion the award does not bind the prosecutor to cause or procure that any of its members should work overtime. The order imposes upon the prosecutor an obligation which is different from and more onerous than any obligation which the award imposes upon it. The order makes the prosecutor an instrument for compelling its members to work overtime in accordance with the award. The provision of the award relating to bans on the working of overtime does not according to its true meaning bind the prosecutor to undertake that responsibility. The order made under s. 29 (b) is not capable of being regarded as an order to comply with the award and is upon its face beyond any jurisdiction which the Act confers on the court. (at p259)
6. If the provision of the award contains the obligation which the order of the court imposes upon the prosecutor, it would be necessary, in my opinion, to consider the question whether the court has jurisdiction under the Act to bind an organization of employees or employers in that way. (at p259)
7. The third question is whether the order made under s. 29 (c) is beyond the jurisdiction of the court. The word "Act" in this provision cannot be read to include the word "award". Upon an examination of the whole Act it does not show that the contravention of an award is to be treated as a contravention of the Act. (at p259)
8. In the view which I take that the orders made respectively under clauses (b) and (c) of s. 29 are beyond the power of the court it is not necessary for me to decide the point under s. 17 (3) as to the powers of the court to punish for contempt. The order imposing a fine upon the prosecutor is invalid because it does not appear that the prosecutor was guilty of a breach of any valid order. (at p259)
9. The order nisi should, in my opinion, be made absolute as to the three orders of the court and discharged so far as it relates to the award itself. (at p259)
WEBB J. I would make absolute the order nisi for prohibition, for the reasons given by Dixon J., except his Honour's reasons for supporting the order of 5th June 1950 purporting to be made under s. 29 (b) of the Act. In my opinion that order is invalid on its face, as the award does not impose a duty on the organization to cause or procure its members to work even reasonable overtime. The award requires no more than that the organization should not be directly or indirectly a party to or concerned in any ban, limitation or restriction on the working of overtime. That does not impose on the organization the active duty of taking steps to have overtime worked by its members. (at p259)
2. I think, then, that the order nisi for prohibition should also be made absolute in respect of the order of the Arbitration Court of 5th June 1950 purporting to be made under s. 29 (b) of the Act. (at p259)
KITTO J. This is the return of an order nisi for prohibition, by which the validity of four orders of the Commonwealth Court of Conciliation and Arbitration is called into question. (at p259)
2. The first order was made on 8th September 1947, on the hearing of a summons issued by the prosecutor and others by which variations were sought in the Metal Trades Award 1941 as consolidated on 9th July 1943 in respect of standard hours. The order made a number of variations in the terms of the award, directed in the main to establishing forty hours instead of forty-four as the ordinary hours of work per week. It also inserted two new sub-clauses, the first (hh) being added to clause 11 dealing with shift-workers, and the second (k) being added to clause 13 dealing with other workers. These two sub-clauses were in identical terms, providing, so far as material, (1) that an employer may require any employee to work reasonable overtime at overtime rates and that the employee shall work overtime in accordance with such requirement, and (2) that no organization party to the award shall in any way either directly or indirectly be a party to or concerned in any ban, limitation or restriction upon the working of overtime in accordance with the requirements of the sub-clauses. (at p260)
3. The prosecutor does not deny that the order was within the jurisdiction of the court to settle the dispute in respect of which the award was made, insofar as it altered the standard hours and made the first of the provisions contained in sub-clauses (hh) and (k) and so much of the second of those provisions as stipulates that no organization party to the award shall in any way either directly or indirectly be a party to, or directly concerned in any ban, limitation or restriction upon the working of overtime. What is challenged is the jurisdiction to provide by the order that no such organization shall be indirectly concerned in any such ban, limitation or restriction. It is said that to impose upon organizations prohibitions in terms as far-reaching as these was to exceed anything that could properly be regarded as relevant to the settlement of the dispute to which the award related. (at p260)
4. In my opinion the contention is groundless. Once it is conceded, as it is and I think must be, that it was within jurisdiction to make, as an integral part of the scheme adopted for the reduction of ordinary working hours, a provision for the working of overtime, including a prohibition against the direct concern of organizations bound by the award in any ban on overtime, it becomes, in my opinion, impossible logically to refuse a similar concession in respect of a provision against the indirect concern of those organizations in such a ban. A union may be none the less really concerned in a ban because its concern is indirect. To provide against its being directly or indirectly concerned is thus to make a single effective provision against its being concerned at all. If the words "directly or indirectly" had been omitted, the provision, in my opinion, would not have been open to any possible attack, for the words "concerned in any ban" &c. must be construed in a limited sense dictated by the nature of the document in which they appear: cf. William Cory & Son, Ltd. v. Harrison (1906) AC 274, at p 276 ; T. W. Cronin Shoe Pty. Ltd. v. Cronin (1929) VLR 244, at p 248 . So construed, they do not refer, in my opinion, to anything more than having such a real connection with a ban as involves some degree of responsibility for it. The inclusion of the words "directly or indirectly" serves to make plain the completeness of the prohibition, but makes no difference to its operation: cf. Todd v. Robinson (1884) 14 QBD 739, at p 746 . I am therefore of opinion that the challenge to the validity of the order of 8th September 1947 must fail. (at p261)
5. The second order, made on 5th June 1950, recited a rule nisi whereby the prosecutor and certain other unions had been called upon to show cause why orders should not be made, under s. 29 (b) of the Commonwealth Conciliation and Arbitration Act 1904-1949, that they should each comply with the above-mentioned sub-clauses of the Metal Trades Award by ceasing to be directly or indirectly a party to or concerned in certain bans, limitations or restrictions upon the working of overtime in accordance with the requirements of those sub-clauses; and it ordered each of the unions to comply with those sub-clauses by causing or procuring that, within seven days from the date of the order, overtime should be worked in accordance therewith by its respective members employed by eleven named employers without any ban, limitation or restriction. (at p261)
6. This order was based upon a finding that the named unions had been proved to the satisfaction of the court to have broken the relevant sub-clauses of the award. The court, having made that finding, had power under s. 29 (b) "to order compliance with" the award on the part of the unions concerned. This power was not confined, as I read s. 29 (b), to ordering the unions in general terms to comply with the award or with the sub-clauses proved to have been broken. It extended, in my opinion, to ordering any acts or forbearances on the part of the unions which were necessary for compliance with the award in the existing situation. It was within the jurisdiction of the Arbitration Court to decide what acts or forbearances were necessary in the circumstances in order that the award should be complied with. Against its decision on that point no appeal or challenge can be entertained (s. 32), except insofar as s. 75 (v.) of the Constitution subjects it to supervision by the High Court on an application for a writ of mandamus or prohibition. It may be true to say, and I am prepared to assume for the purposes of this case, that an order purporting to be made under s. 29 (b) and directing particular acts or forbearances should be held valid if those acts or forbearances were reasonably capable of being considered to be necessary for compliance with the award: cf. Morgan and Australian Workers' Union v. Rylands Bros. (Aust.) Ltd. [1927] HCA 33; (1927) 39 CLR 517, at p 524 ; but to go further than this would be to superadd to s. 29 (b) a new and essentially different power, not a power to make specific a duty which the court, acting within its jurisdiction, considers to be obligatory under the award, but a power to create a new duty independent of the obligation of the award. The power which s. 29 (b) confers may, perhaps, be regarded as purposive, in the sense that it enables orders to be made for the purpose of producing compliance with an award; but even on this view it does not authorize an order whose obligation extends beyond anything that could reasonable be regarded as necessary for such compliance. (at p262)
7. The situation in which the Arbitration Court came to make the order now in question was that a ban upon the working of overtime was being observed by members of the unions concerned, and the unions had been proved to have been parties to or concerned in that ban. It may be said that the court was justified in taking into account the probability that the fact of the unions' past support of the ban would or might influence their members to continue the ban, even though the unions should cease to have any part in or connection with the ban, so that nothing short of disciplinary action by the unions to compel a resumption of overtime working would suffice to counteract the effects of what the unions had done in breach of the award. The answer, in my opinion, is that s. 29 (b) confers only a power to order future compliance with an award, and not to order steps to be taken, exceeding compliance with the award, for the purpose of overcoming the effects of past non-compliance. An illustration will make the distinction clear. If a breach of an award were proved, which consisted of non-payment of a sum of money, no doubt s. 29 (b) would authorize an order for the payment of that sum in the future in order that non-compliance with the award might be terminated; but it would not authorize an order for the payment of interest on the overdue sum, for such an order would create a new duty not referable to the award at all. (at p262)
8. In the situation which existed on 5th June 1950 the Arbitration Court, I assume, had power under s. 29 (b) to order the unions to do anything which might reasonably be considered capable of ending their connection with the existing ban, and to order them to refrain from anything which might reasonably be considered to amount to participation or concern in any fresh ban. But what the court in fact ordered was something which went much further, and was directed to the excessive purpose of causing the unions (1) to bring about the ending, not of their connection with the ban, but of the ban itself, whatever organizations or persons might be parties to or concerned in any effort to continue it, and (2) to prevent the imposition within seven days of any other ban on overtime affecting their members whether the unions should be parties to or concerned in it or not. Thus the order purported to create an obligation more extensive and more onerous than compliance with the award could reasonably be considered to require, and its manifest purpose was not merely to bring about compliance with the award on the part of the unions, but to compel the unions to bring about compliance with the award on the part of their individual members. Such an order, in my opinion, cannot be regarded as within the Arbitration Court's power by reason either of the terms of s. 29 (b) itself or of any elasticity of jurisdiction which it may be proper to imply from other provisions of the Act. To uphold the order would be tantamount to writing into the Act a new power of such importance that it ought not to be rested upon other than clear words. In my opinion the order should be held to have been made without jurisdiction. (at p263)
9. I have not discussed, because I think it irrelevant, an argument based upon an examination of the legislative history of various sections of the Act, from which the conclusion was attempted to be drawn that s. 29 (b) is limited to authorizing orders for the making good of past breaches of orders or awards. Not only was the argument inconclusive, but in my opinion it was inadmissible; for it appealed to earlier enactments, not for the purpose of removing any uncertainty in s. 29 (b), either patent or latent, but for the purpose, first of introducing uncertainty into plain words, and then of resolving the difficulty thus illegitimately created. This method of dealing with a statute is not permissible: Aristide Ouellette v. Canadian Pacific Railway Co. (1925) AC 569, at pp 575, 576 . (at p263)
10. The third order, which also was made on 5th June 1950, recited a rule nisi whereby the prosecutor, along with other unions, was called upon to show cause why it should not be enjoined pursuant to s. 29 (c) of the Act from committing or continuing a contravention of the Act, namely the breach by it of the provisions above referred to by being directly or indirectly a party to or concerned in any bans, limitations or restrictions upon the working of overtime in accordance with the requirements of those provisions; and it ordered that each of the unions be enjoined from committing a contravention of the Act, namely from being directly or indirectly a party to or concerned in any ban, limitation or restriction upon the working of overtime in accordance with the requirements of sub-clause (hh) of clause 11 and sub-clause (k) of clause 13 of the Metal Trades Award, 1941, as consolidated and varied, at any shop, factory or establishment carried on by any member of the Metal Trades Employers' Association in the State of New South Wales. (at p264)
11. The jurisdiction of the court to make this order was challenged on the ground that par. (c) of s. 29 refers to any contravention of "the Act", and not to any contravention of the Act or of an order or award, and that a breach of an order or award is not a contravention of the Act within the meaning of the paragraph. In my opinion the construction sought to be placed upon s. 29 (c) is correct. It is true, I think, that a breach of an order or award may be described as a contravention of the Act in one sense of that expression; for, while the Act nowhere imposes in express terms an obligation upon persons or organizations bound by an order or award to comply with it, ss. 50 and 59 together do, in a real sense, create such an obligation. But the Act in a number of its provisions preserves a distinction between a breach or non-observance of the Act and a breach or non-observance of an order or award; see e.g. ss. 29 (a), 33 (1) (a), 40 (c), 59 (1) (a), 61, 64 (1) (b). These provisions use the expression "breach or non-observance" and not the word "contravention", but I am unable to perceive any difference between a contravention on the one hand and a breach or non-observance on the other. Since the draftsmanship of the Act treats contraventions of the Act as topics distinct from contraventions of orders or awards, it seems to me necessary to observe that distinction in construing s. 29 (c); and for that reason I am of opinion that s. 29 (c) did not authorize the order. (at p264)
12. But there remains the question whether the order can be upheld under s. 29 (b). The obligation it purported to create did not go beyond compliance with the award, and the award had been proved to the satisfaction of the court to have been broken or not observed. Proof of that fact had been given upon the applications, which were heard together, for the two orders made on 5th June 1950, and the court delivered the one set of reasons for making the two orders. The rule nisi, upon which the order now in question was made, referred to s. 29 (c) alone, but this defect could have been dealt with under s. 40 (l) or (m) without any injustice to the unions, and it has no more than procedural significance. The court described itself as acting under s. 29 (c) in making this particular order, but in my opinion the order does not fall outside jurisdiction merely because it recites an inappropriate head of power. The fact that two separate orders were made does not appear to me to warrant an inference that the order purporting to be made under s. 29 (c) was or may have been made without regard to the conditions of jurisdiction under s. 29 (b), seeing that the court made both orders for the reason that it found the unions to be in breach of their obligations under the award. Reliance was placed upon the fact that the order now in question in terms enjoined the union, not simply from conduct amounting to non-compliance with the award, but "from committing a contravention of the said Act". These words, however, had no operative effect at all, for the sum total of the obligation created by the order was immediately explained and delimited by words defining the specific conduct enjoined. The words referring to contravention of the Act served no other purpose than that of a description of the legal result of the conduct in which the unions were forbidden to engage, and I have stated my reasons for regarding it as a misdescription of that result. In my opinion, to allow these words to invalidate the order would be to treat as vital to the order a part of it which is inessential to its full operation. Section 29 (b) empowered the court, in the circumstances which it found to exist, to make this order, and in my opinion the objections urged against it afford no ground for prohibition. (at p265)
13. The fourth order called into question in these proceedings was made on 10th July 1950. By it the Arbitration Court imposed upon the prosecutor a fine of 100 pounds for contempt of court consisting in a breach of the first of the two orders above mentioned made on 5th June 1950. Jurisdiction to impose a fine for contempt of court by way of punishment for a breach of an order of the court was rested upon s. 17 (3) of the Act, which makes the court a superior court of record. That provision, in my opinion, would suffice to confer the jurisdiction claimed if there were no implication to the contrary arising from other provisions of the Act; but the Act confers express powers to deal with breaches and non-observances of orders of the court, and in my opinion it should not be taken that, by describing the court as a superior court, the Parliament intended to make available by implication an additional power to deal with the same matters: cf. Anthony Horden & Sons Ltd. v. Amalgamated Clothing and Allied Trades Union of Australia [1932] HCA 9; (1932) 47 CLR 1, at pp 7, 20 ; R. v. Wallis; Ex parte Employers' Association of Wool Selling Brokers (1949) 78 CLR 529, at pp 543, 550 . The reasons for this conclusion which have been stated by my brother Dixon appear to me to be conclusive. A similar problem arose many years ago in New South Wales, and it was similarly answered: Ex parte Brennan (1915) 15 SR (NSW) 173; 32 WN 51 . Speaking of the then Court of Industrial Arbitration, Cullen C.J. said (1915) 15 SR (NSW), at p 178; 32 WN, at p 52 : "a claim that any particular power can be implied from the fact that it is declared to be a superior court must be tested by the special provisions of the Act of 1912. Expressum facit cessare tacitum and where any particular exercise of the power of the Court of Industrial Arbitration is expressly provided for in other parts of the Act, these must be looked at in order to see whether they do not exclude the power sought to be implied from the use of the word 'superior'"; and he proceeded to hold, with the concurrence of Pring and Sly JJ., that since the Act made a breach of the court's injunction an indictable offence there was no jurisdiction to deal with it in summary proceedings for contempt. On this point the case is not affected by the decision of this Court in Minister for Labour and Industry (N.S.W.) v. Mutual Life and Citizens' Assurance Co. Ltd. (1922) 30 CLR 488 . (at p266)
14. In the result I am of opinion that the order nisi should be made absolute for a writ of prohibition in respect only of the order of 5th June 1950 purporting to be made under s. 29 (b) and the order of 10th July 1950. (at p266)
ORDER
Order nisi discharged in relation to award made on 8th September 1947, otherwise order absolute. Respondent association to pay costs of prosecutor.
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