R v Hall; Ex parte Commissioner for Railways (NSW) [1958] HCA 35; (1958) 100 CLR 170 (13 August 1958)

HIGH COURT OF AUSTRALIA

THE QUEEN v. HALL; Ex parte COMMISSIONER FOR RAILWAYS (N.S.W.) [1958] HCA 35; (1958) 100 CLR 170

Industrial Law (Cth.)

High Court of Australia
Dixon C.J.(1), McTiernan(1), Taylor(1) and Menzies(1) JJ.

CATCHWORDS

Industrial Law (Cth.) - Conciliation and arbitration - Award - Variation - Conciliation commissioner - Long service leave - Dismissed employees - Payment - Provision in statute and award - Effect - Extension of benefits by statute - Powers - Competence of commissioner - Prohibition - Conciliation and Arbitration Act 1904-1951, ss. 13, 16; 1904-1956, s. 58 - The Constitution (63 & 64 Vict. c. 12) ss. 51 (xxxv.), 109 - Government Railways Act 1912-1950 (N.S.W.), s. 100A - Railways Traffic, Permanent Way and Signalling Wages Staff Award (30th September 1952), cl. 63 (c).

HEARING

Sydney, 1958, August 12, 13. 13:8:1958
ORDER NISI for PROHIBITION.

DECISION

The judgment of the Court was delivered by DIXON C.J.: -
This is an order nisi for prohibition to restrain further proceedings by way and Signalling Wages Staff Award. That award was finally made on 30th September 1952. It had a fixed currency from 30th September 1952 to 30th June 1956 and is now in operation by virtue of s. 58 of the Conciliation and Arbitration Act which provides that after the expiration of that time the award is to continue in force. (at p173)

2. The award was made by Mr. Conciliation Commissioner V. G. Hall, who subsequently retired from that office. His retirement occasioned some difficulty about the direction of the writ, but the order nisi is directed also to Mr. Commissioner Austin to whom the duties of the description formerly performed by Conciliation Commissioner Hall were assigned. But in the view we take we can pass the difficulty by. (at p173)

3. Clause 63 of the award contains four paragraphs, but we are concerned only with the third or a portion of it. That paragraph is as follows: "(c) Payment for any holidays or leave standing to an employee's credit, and long service leave due under the Government Railways Act shall be made in each case where an employee resigns, retires, dies or is dismissed as follows: - (i) In the case of resignation, retirement, or dismissal - to the employee. (ii) In the case of death - to the employee's widow, or if he does not leave a widow, to his legal personal representative." Then follows a proviso that is not material. (at p174)

4. The order nisi was obtained by the Railways Commissioner for New South Wales. His object is to challenge so much of this provision as relates to long service leave. Apparently he might not have challenged the provision had it not been for its operation in the case of employees who were dismissed. It operates so as to give them the monetary equivalent to long service leave pay. It should be noticed that the clause does not profess to confer a right to long service leave. It supposes that long service leave is due under the State Government Railways Act, and then annexes certain further rights to a money equivalent on resignation, retirement, dismissal or death. (at p174)

5. In view of the provisions of s. 13 of the Conciliation and Arbitration Act 1904-1951 (Cth.) - as it then existed - the question at once would strike one as to whether the conciliation commissioner had jurisdiction at all in a matter which was connected with long service leave, and indeed that is referred to as the first ground in the order nisi. Section 13 (1) of the Act as it then stood provided: "13. - (1) A Conciliation Commissioner shall not be empowered to make an order or award . . . (c) providing for, or altering a provision for, annual or other periodical leave with pay, sick leave with pay or long service leave with pay." As at the date when the award was made, Act No. 34 of 1952 of the Commonwealth had come into operation. That Act came into operation on 27th June 1952; the award did not come into operation until 30th September 1952. Act No. 34 of 1952 amended s. 16 of the Act of 1904-1951 and introduced sub-s. (6) and (7). The operation of those provisions was the subject of a decision of this Court in Reg. v. Blackburn; Ex parte Transport Workers' Union of Australia [1952] HCA 45; (1952) 86 CLR 75 . (at p174)

6. The effect of the provisions need not be described in detail, but we thought that they removed the question whether a tribunal had exceeded its jurisdiction as defined by s. 13 from the operation of the principle of invalidity and made the question one of a decision as between two competing authorities. We considered that the effect was to leave the question of the application of this purely statutory division of function to the direction and determination of the Chief Judge and the Arbitration Court as it then stood, leaving s. 13 in effect as a directory provision. The discussion of this interpretation appears in the judgment of the Court (1952) 86 CLR, at p 93 . (at p175)

7. We think it is clear, on the facts of this particular case, that the question was not one, as it then stood, of jurisdiction. No reference was in fact made to the Arbitration Court - under s. 16 - of the question whether the commissioner should go on, and accordingly under sub-s. (7) of s. 16 of the Act as it then stood it was competent for the conciliation commissioner to proceed. He went on without objection and made this particular provision in his award. (at p175)

8. At the time when he adopted cl. 63 of his award long service leave was the subject of a provision in the Government Railways Act to which, as appears from what I have read, cl. 63 refers. The provision was inserted in the Government Railways Act by Act No. 40 of 1941, s. 2. The provisions with which we are concerned particularly are those of sub-ss. (2) and (3). At the date of the award it had been amended by s. 2 (1) (e) of Act No. 19 of 1950 of New South Wales, but the amendment was not material to the present question. (at p175)

9. Those were the provisions which obtained when the award was actually pronounced. Subsequently the benefits conferred by s. 100A were extended by four other Acts of Parliament of New South Wales, viz., s. 2 of Act No. 31 of 1953, s. 5 of Act No. 27 of 1955, s. 5 of Act No. 21 of 1957 and s. 5 (1) of Act No. 5 of 1958. (at p175)

10. The attack made on behalf of the commissioner upon cl. 63 (c) is not based on any deficiency in the ambit of the industrial dispute which gave rise to the award. In fact, the log of claims is not brought before us, but we are told that the provision in cl. 63 (c) is in the same form as in previous awards and in fact follows the claim made in the log. So that we do not begin with any doubt as to the intended ambit of the dispute. The attack is made upon the sub-clause upon the ground that it works some interference with the State power of legislation and that it goes beyond the scope of the authority of the commissioner, considered as a person exercising power pursuant to par. (xxxv.) of s. 51 of the Constitution. It will be noticed from what I have said that the paragraph does affect the consequences of a legislative grant of long service leave. It does not affect the grant itself, it does not affect the operation of the provision conferring rights to long service leave. What it does is, in the case of a person who has become entitled to long service leave, to confer upon him, his widow or his personal representative as the case may be a further right, a right to a money sum. The right conferred by the clause is that when his title has accrued, so to speak, under the Government Railways Act he becomes entitled to a monetary equivalent should he resign, retire, die or be dismissed. (at p175)

11. It was pointed out by Mr. Jenkins that the effect is that, taking one's stand in 1952 when the award was made, it operates to add those rights not only to the right to long service leave as it then had been defined but also to that right as it might be altered improved or enlarged by any enactment which might afterwards amend the Government Railways Act. (at p176)

12. During the argument it was pointed out that there may be some question of interpretation of sub-cl. (c), as to whether that is its meaning, but it is the interpretation that hitherto has been accepted in its day-to-day operation. (at p176)

13. We do not think that the argument is correct. It does not in truth go to the power of the commissioner to adopt cl. 63 (c). (at p176)

14. What cl. 63 (c) does in effect is to express a principle which shall be applicable to resignation, retirement or dismissal or death of an employee to whom long service leave has accrued. The legislature of New South Wales remains at liberty to exercise its powers to the full in repealing the Government Railways Act, in amending it and so forth. All the award says is that when rights are given they shall enure, in the manner described, to the man who resigns or is dismissed or retires, and in the case of his death, to his widow or his personal representative. Those rights are to be expressed in a money sum which is to be calculated according to his long service leave. (at p176)

15. Any effect which such a provision may have on State legislative power is entirely the consequence of s. 109 of the Constitution and of the manner in which s. 109 has been interpreted and applied in relation to the industrial power in decisions of this Court, which may be taken to be summarised in Ex parte McLean [1930] HCA 12; (1930) 43 CLR 472 . (at p176)

16. There can be no question in our view of the competence of the conciliation commissioner, provided the ambit of the industrial dispute suffices, to make such a provision as it contained in cl. 63 (c) (i) and (ii) and we do not think that there is any sound ground upon which the order nisi for prohibition can be supported. (at p176)

17. For those reasons we think that the order nisi should be discharged. (at p176)

18. The order nisi will be discharged with costs. (at p176)

ORDER

Order nisi discharged with costs.