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High Court of Australia |
THE QUEEN v. BLACKBURN; Ex parte TRANSPORT WORKERS' UNION OF AUSTRALIA [1952] HCA 45; (1952)
86 CLR 75
Industrial Arbitration (Cth.)
High Court of Australia
Dixon C.J.(1), McTiernan(1), Williams(1), Webb(1) and Kitto(1) JJ.
CATCHWORDS
Industrial Arbitration (Cth.) - Conciliation and arbitration - Award - Variation - Powers of commissioner - Limitation - Reference to Arbitration Court - Discretion of commissioner - Amending statute - Reference by direction of Chief Judge - Pending application - Prohibition directed to commissioner prior to amending statute - Appropriateness of remedy - Conciliation and Arbitration Act 1904-1951 (No. 13 of 1904 - No. 58 of 1951), ss. 13, 16, 25 - Conciliation and Arbitration Act 1952 (No. 34 of 1952), s. 6.
HEARING
Sydney, 1952, July 29-31; August 1, 15. 15:8:1952DECISION
August 15.2. The contention in support of these grounds depended upon the relation, or absence of relation, with standard hours and basic wage which the provisions or proposed provisions possess. The purpose of the two pending applications is to introduce into the award clauses which would enable employers to take certain measures if their industrial operations were affected by interruptions of or restrictions upon the supply of electrical energy or gas or by certain other untoward events. It is not necessary to describe the measures. It is enough to say that the clauses would enable them to require their employees to work at different times, to make deductions from wages for some parts of a day when men could not be usefully employed and to adopt certain other expedients to meet the position. (at p90)
3. The clause in the existing award (clause 4(d)(iii) relates to classifications of transport workers employed by employers whose chief trade or business is not transportation. The clause brings these classifications under provisions of the award fixing or otherwise dealing with rates of pay but, for the remaining industrial conditions, it refers to the provisions contained in Federal or State awards, determinations or industrial agreements binding the employers. The materials before the Court do not make it clear whether, at the time when the clause was adopted, any such instruments existed which contained provisions similar to those sought by the pending applications for variation. It is not certain whether the clause intends to incorporate by reference the provisions to which it refers and to give them a new and independent authority or on the contrary it means no more than that they are to have room to continue in operation of their own force. Nor is it certain whether the clause intends to refer only to instruments of industrial regulation already in existence or to include also those which might come into existence after the commencement of the operation of the clause. If the latter is intended, there cannot but be some question as to the validity of such an intention. (at p90)
4. After the orders nisi were granted the Conciliation and Arbitration Act 1952 (No. 34) was passed and came into operation. A question then arose whether the provisions of this Act did not stand in the way of the prosecutor. For it was at least a tenable view of the provisions that they applied not only to future proceedings before conciliation commissioners but to those already pending and that they provided machinery by which the jurisdiction of a commissioner to deal with such a case might be settled. Accordingly the orders nisi were placed in the list so that the question might be argued whether the amendments made by Act No. 34 of 1952 did apply to the proceedings before the two commissioners and make it proper to discharge the orders nisi. Upon the argument it became plain that the clause in the existing award, clause 4(d)(iii) of the Transport Workers' (General) Award 1950 as varied, stood in an entirely different position from the two pending applications. It was not contended for the respondents that the amendments made by Act No. 34 of 1952 had any bearing upon the validity of that clause. What was contended was something quite different, namely, that, so far as the materials before the Court disclosed, there was no ground for supposing that the clause did or could fall within the ground assigned in the order nisi for impeaching the validity of the clause, that is to say, for denying that it was within the authority of a conciliation commissioner to make. As the argument proceeded it became evident to the parties themselves that it was not only necessary that further materials be laid before the Court but it was desirable that some further consideration be given to the meaning and implications of the clause as a whole and to the consequences of impeaching it as an entirety; and the parties agreed that some course should be taken for deferring this particular issue arising from the presence of the clause in the award. After hearing the parties we formed the conclusion that the better course would be to discharge the order nisi so far as it sought a writ prohibiting further proceedings upon the clause but to do so without prejudice to the question whether the clause or any part of it was a term of the award made without jurisdiction and void. This conclusion we announced at the end of the argument. It is, therefore, necessary now to deal only with the question whether the effect of the amendments made by Act No. 34 of 1952 is to place the authority of the conciliation commissioners over the two pending applications for variations upon a basis which would make it no longer a proper case for prohibition even if the prosecutor were to make it appear to this Court that the variations sought would involve, within the true meaning of s. 13, an alteration of the standard hours of work in an industry or of the basic wage for adult males or of the principles upon which it is computed. (at p91)
5. This question may be logically divided into two parts, of which it is composed. The first part concerns the operation of the provisions as amended in cases to which they apply. The second part concerns what was the real matter in contest during the argument, namely the application of the amended provisions, that is to say, of the amendments, to matters pending before conciliation commissioners at the time of the commencement of the amending enactment, No. 34 of 1952. It is convenient to deal with these component questions in that order. But in order to deal with both of them it is necessary first to state the effect of the relevant statutory provisions. (at p91)
6. The provision which makes the controversy possible is of course s. 13(a) and (b). This says that a conciliation commissioner shall not be empowered to make an order or award (a) altering the standard hours of work in an industry; (b) altering the basic wage for adult males (that is to say, that wage, or that part of a wage, which is just and reasonable for an adult male, without regard to any circumstances pertaining to the work upon which, or the industry in which he is employed) or the principles upon which it is computed. The division of the authority between the commissioners and the Arbitration Court, which s. 13 together with s. 25 accomplishes, has in the past been taken to import that s. 13 is an imperative provision which can be infringed only at the cost of invalidity. Hence orders and awards made in violation of the true meaning of its terms have been treated as exposed to the remedy of prerogative writ of prohibition under s. 75(v.) of the Constitution and, of course, so have proceedings before commissioners for an order or award of that description. (at p92)
7. Section 16(2)-(5) enabled a conciliation commissioner, if he thought fit,
to refer to the Arbitration Court any question of his jurisdiction and,
upon
the question being so determined to make an order or award not inconsistent
with the determination of the Arbitration Court.
Of the amendments made by Act
No. 34 of 1952 in the Conciliation and Arbitration Act 1904-1951 those most
closely touching the present
question are the amendments in s. 16 effected by
s. 6 of Act No. 34. For sub-s. (2) of s. 16 a new sub-section is substituted.
The
difference between this and the old provision is that the discretion of
the commissioner to refer the question is no longer unqualified;
the Chief
Judge may direct him to refer it. The crucial amendments, however, consist in
two new sub-sections that are added, sub-ss.
(6) and (7). They are as
follows:-
"(6.) Where a question referred to the Court under this section is whether
the Conciliation Commissioner is, having regard to the
provisions of section
thirteen of this Act, empowered to exercise jurisdiction in relation to a
matter - (a) if the opinion of the
Court is that the Conciliation Commissioner
is so empowered, then, notwithstanding anything contained in this Act, the
Conciliation
Commissioner is empowered to exercise jurisdiction in relation to
that matter; or (b) if the opinion of the Court is that the Conciliation
Commissioner is not so empowered, then, notwithstanding anything contained in
this Act, the Conciliation Commissioner is not empowered
to exercise
jurisdiction in relation to that matter but the Court is empowered to exercise
jurisdiction in relation to the matter.
(7.) If, in relation to a matter before a Conciliation Commissioner, the
question whether he is, having regard to the provisions
of section thirteen of
this Act, empowered to exercise jurisdiction in relation to that matter has
not been referred for the opinion
of the Court, then, notwithstanding anything
contained in this Act, the Conciliation Commissioner is empowered to exercise
jurisdiction
in relation to the matter." (at p93)
8. It will be seen that, upon a question whether the restrictions imposed by s. 13 on a commissioner's jurisdiction do or do not take a given matter outside his authority, the criterion of his power to exercise jurisdiction is no longer the true meaning and application of s. 13 but the determination of the Arbitration Court, when the question is referred to it. Until the question is referred to that court, it is to be taken provisionally that s. 13 does not exclude the matter from his authority. Once he has referred the question, either of his own choice or under the direction of the Chief Judge, the commissioner, by an amendment of sub-s. (4), ceases to have power to decide it himself. (at p93)
9. It may be that sub-ss. (6) and (7) of s. 16 as now amended are not necessarily confined to questions arising with reference to s. 13. For the words "having regard to the provisions of section thirteen" are somewhat vague and might possibly be considered not to restrict the provisions to questions concerning the operation of s. 13 on the authority of an arbitrator. But, even if this be so, the sub-section would not be interpreted as covering questions arising upon the Constitution which could not be concluded under such provisions. But statutory limitations upon the power of an industrial arbitrator may be made to depend on any criterion the legislature chooses, so long as it is relevant to the subject matter of legislative power. There is no reason why the restrictions imposed by statute should not be against doing what, to give one example, the Arbitration Court regards as altering standard hours of work in an industry rather than against what, in fact and in law, constitutes such an alteration. Nor is there any reason why the restriction should not be made inoperative by the legislature pending a decision of the Arbitration Court, and that is so even if the possibility of the question ever coming before the Arbitration Court is made to depend upon successive exercises of discretion reposed in the commissioner and the Chief Judge. For the restrictions imposed by s. 13 are entirely the work of the legislature. The result is that where s. 16, as amended by Act No. 34 of 1952, applies s. 13 ceases to be an imperative limitation upon the power of a conciliation commissioner to proceed with a matter which a party alleges falls outside his authority. He may proceed according to the course laid down by the amended s. 16. (at p94)
10. Then do the amendments apply to the two applications pending before the commissioners at the time when the amending Act came into operation? There is nothing in Act No. 34 of 1952 or in the language of the amendments or of the provisions as amended to confine the operation of the provisions to cases first arising before a commissioner after the commencement of Act No. 34 of 1952. But it is said that the amendments are of a kind that should be understood, subject to any express indications to the contrary, as meaning to leave any pending matter unaffected. Reliance was placed, in support of this contention, upon s. 8(c) and (e) of the Acts Interpretation Act 1901-1950. What is relied upon is so much of the provision as says that, unless a contrary intention appears, a repeal shall not affect any right privilege or liability acquired accrued or incurred under the Act so repealed or any investigation legal proceeding or remedy in respect of any such right privilege or liability as aforesaid and that such investigation legal proceeding or remedy may be continued as if the repealing Act had not been passed. It was contended that upon the applications for a variation being instituted the parties, or at all events the prosecutor as a respondent to the applications, had a right, or if you like a privilege, in respect of the applications as being incompetent because, on the hypothesis accepted for the purposes of the argument, they infringed s. 13 in fact and in law. Perhaps an alternative suggestion may be that the prosecutor was "liable" to the consequences of the action of the Arbitration Court as competent to make the variation and the other party, being the applicant for the variation, was "liable" to the consequences of the want of competence to make it in a commissioner. Such a conception of the "right" or "privilege" or "liability" to which s. 8(c) and (e) relates goes outside the meaning of the provision. (at p94)
11. The variation of an award depends upon s. 49. As to the matters referred to by s. 25 and s. 13 respectively, the court in the one case, and a conciliation commissioner in the other, has power to vary an award for any reason the court or the commissioner thinks proper. The fact that an award is made cannot give any party bound by it a "right or privilege" or subject him to a "liability" that the demarcation of the power to amend it shall be settled in any particular way and the fact that an application for the exercise of the power is commenced cannot do so. There is nothing in the nature of a right or privilege or liability acquired accrued or incurred by an applicant or a respondent in respect to the test or criterion of the definition of the material relations of the two authorities, court and commissioners. It is all a question of the limits of the legal powers of the two authorities inter se. There is no better foundation for the appeal made on behalf of the prosecutor to a supposed presumption that an amendment of such provisions as s. 16 of the Conciliation and Arbitration Act 1904-1951 contained is not intended to apply to pending applications. The Arbitration Court and the conciliation commissioners are authorities set up for the exercise, where conciliation has failed, of arbitral powers of industrial regulation and control, for the purpose of settling industrial disputes. These powers are exercisable primarily in the public interest. Section 16 and the amendments of s. 16 are concerned with the mutual relations of the two authorities and the settlement of questions about the application of the definition of their spheres. There is no prima-facie reason why provisions on this subject should not extend to every relevant exercise of authority to be made by the tribunals from the time when such provisions become law. There is no reason why a distinction should be drawn between matters in which steps to invoke the power of a commissioner had already been taken and those in which it had not. (at p95)
12. In matters of ordinary legal rights and duties the distinction is familiar between the operation on existing cases of provisions going to substantive right and of provisions going to procedure. It is true that some rights arising out of the law adjective have been treated as too important to fall under the application of the principle that new procedural provisions apply to existing proceedings. See for example Newell v. The King [1936] HCA 50; (1936) 55 CLR 707 (the right of a prisoner upon his trial on indictment to the unanimous verdict of twelve men), Colonial Sugar Refining Co. Ltd. v. Irving (1905) AC 369, at p 372 (a right of appeal to the Privy Council): cf. T. Conway Ltd. v. Henwood (1934) 50 TLR 474 , where a limitation on a right of appeal was held to apply to proceedings already commenced, and Rathbone v. Munn (1868) 18 LT 856; 9 B & S 708 , where a new right of appeal was held to apply to pending proceedings. In the present case the analogy is much closer to an alteration in the procedural powers of a court, a thing which would be taken prima facie to apply to all occasions afterwards arising where the exercise of the power was appropriate and not to be restricted to occasions arising in actions or other proceedings commenced after the provisions came into force. But, while this may be said to be a closer analogy in principle, the fact is that we are not here dealing with judicial proceedings or the enforcement of rights and liabilities. We are in the field of arbitral powers in relation to industrial disputes and these are concerned with industrial control and regulation and the adoption of provisions to operate de futuro and prescribe and govern the relations of the parties. In such a field it is hard to see why new machinery should not be applicable to existing cases. (at p96)
13. In our opinion the amendments in s. 16 apply to the pending applications and a writ of prohibition would no longer be an appropriate remedy, that is, even on the assumption made that on the true application of s. 13 to the variations sought there is a proposed infringement of its terms. (at p96)
14. Having regard to the foregoing considerations the orders nisi should be discharged but without prejudice to the question whether clause 4(d)(iii) of the Transport Workers' (General) Award 1950 as amended or any part of that clause is a term of the award made without jurisdiction and void. (at p96)
15. The discharge of the orders nisi is in part due to subsequent legislation and in part to the desirability of dealing with any questions relating to clause 4(d)(iii), should it be ever necessary, in other proceedings. Having regard to this consideration we think that, in a matter of this kind, there should be no order as to costs. (at p96)
ORDER
Reg. v. Blackburn and Another; Ex parte Transport Workers' Union of Australia.Order nisi discharged without prejudice to the question whether clause 4(d)(iii) of the Transport Workers' (General) Award as amended or any part of that clause is a term of the award made without jurisdiction and void.
No order as to costs.
Reg. v. Galvin and Another; Ex parte Transport Workers' Union of Australia.
Order nisi discharged. No order as to costs.
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