Evolution of Conciliation & Arbitration Court in South Africa: Jurisdiction & Powers, Exercises of Law

Download Evolution of Conciliation & Arbitration Court in South Africa: Jurisdiction & Powers and more Exercises Law in PDF only on Docsity! A Note on some aspects of conciliation and arbitration in the Commonwealth, prepared by direction ofthe Minister for Labour and National Service (Rt Hon HE Holt), 4th May 1956. Commonwealth Parliamentary Papers, 1956-57, vol. III, pages 1003­ 1018 (16 pages). Tabled in the House of Representatives by Harold Holt on 8th May 1956, Referred to during the introduction of the Conciliation and Arbitration 8i1l1956, 10th May 1956, p. 1989: "Those honorable members who have examined the explanatory document that f circulated earlier in the week, will hove nated with interest the discussion which went on in pre-federation days before agreement was reached on this particular head of power, " This copy digitised'by Roy Jordan, Law and Bills Digest Section, Commonwealth Parliamentary Library, 14th December 2010. 1003 l"l~{, lIE PARLlAlilENT O.F THE OOmWNWEALTH OF AUSTRALIA, A NOTE ON SOME ASPECTS OF ONCILIATION AND ARBITRATION IN THE COMNIONWEALTH. EPARED BY DIRECTION OF THE MINISTER FOR LABOUR AND ATIONAL SERVICE (RT. HON. H. E. HOLT), 4TH MAY, 1956. Presented by ~ommand, 8th JJ1ay, 1936; ordered to be printed, 5th June, 1956. [C08t (If P"p~r :--·1'rpparatioll, no~ gh'NJ; 1,100Npl~9; ajlptolLimaw. cost of ],rilltlng and 1,l1blli'hlllg. £60.) Printed amI Published for the GOVER:'1"IE"T of the CO"rJ\fONWEAL'l'J{ OF AU8TRAT.TA hy . A. J. ARTHUR, Commonwealtll GovenuuentPrint<lr, Canberra. . 33 [GROUP HJ--F.3330/56.-PmUE Is. -,, 5 1001 It was contended in The King v. KcUy, Ex. parte The State of Victoria (1950) 8:1. C.L.R. 64, that the :d"\Vhybrow's case "had been undermined by Hubscquellt cases and should be overruled. The High t lmanimolls1y held that the (I third \Vhybrow's ca3c" should not be over:ruled, affir~ning·that the parties 'bound m;ust be parties to the dispute and the proceedings. . 'l,'he Arbitration Cou~t, exercising t.he power under paragraph (xxxv.), may ~nly act in cases where is an industrial dispute or the kind there clescribNl. 'rhe question arises-how far does a decision of l'bitration Court preclude the High Court from investigating the facts to determine the existence of a 'te; Section 32 (1.) of the Conciliation and Arbitration Act pti,rpol'ts to make a jUdgment, order or award e Arbitration Court final and conclusive and ni1challengable b~T wa;y- of prohibition, mau~amus 01' ction in any Court on any account whatever. Sl,lb-section (2.) makes a determination or finding of ,~hll't upon any qllestion as to the existence of an industrial dispute conclusive and binding, in all courts for all purposes, on all persons affected by that questioll. The Constitution, on the other hand, by em 75 (v.), gives the High Court original jurisdiction in all11latters in which a writ of mandamus or ibition or an injunction is sought against an officer of the Commonwealth.. The Judges of the ·tration Court ~ave been held to be officers of the Commonwealth within the meaning of this provision ybrow's case (1910) 11 C.L.R. 1'; R. v. COntmonweaUh Court of Conciliati01~ and A1'bitration,' Ex e Jones (1914) 18 C.L.R. 224). The present Chief Justice has considered on more than one oeca,sion the question of how ,far a isioll such as section 32 (1.) of the Arbitration Act call modify the jurisdiction thus conferred on the Court. His Honour sUlUlned up his views in relation to section 32 (1.) in R. v. Meta! Tmdes ->!o- ')loyers' Assoc£at£on; Ex parte Arna1ganwted Engineering ,Union (1951) 82 C.L.R. 208 at pClge 249. He thl'l+ section 32 (1.) operates to prot€ct an order or award of the Arbitration Court from prohibition if, :I1\,itstanding that it was not made in conformity ,vith the Act, a it appears that the order or award is \ably capable of reference to a power belonging tQ the Conrt and relates to the subject-ruatter of the ~'iction and ~mollnts to a bona fide attempt to exercise the anthol"ity possessed by the Cou:rt". His QUI' thought that there W(lS nothing in the Act which showed an intention that no excess of the defil1~d 'ers of the Court should 'in any circumstances haye any effect. ' With regard to section 32 (2.), however, the position is different. Parliament has power to kgis'ate y in respect of disputes which are in fact disput.es of the description set out in &ection 51 (xxxv.) of the nstitutiQn. The High Court, as the guardian of the· Constitution, cannot be deprived of the jurisdiction etermine whether or not such a dispute exists. It is not competent toPadiament, therpfore, to pllrport lace the final dpGlsion as ,to the existence of a di8'Rlte in a tribunal other _than the High Court. A 'ority of .the High Court said, of section 32 (2), in R. v. Fosfef'; Ex parte OOmmonwealth Life' nalna/mated) . Ass'u'rances Lt(l. (1952) 85 O.L.R. 138, at page 1~)4-",There are constitutional difficulties ut t.he 11rovigion. Sect.ion 51 (x..'(xv.) of the Constitution WQuld not enable the Parliament to confer ' 11 the 'Court anfhority to determine itR own juris(liction il1.'lOfar as it dl.'pended 0'1 the limit,at10n.~ nthat wry }('_!!islative power.l ' The High Court decic1ed, in R. v. Blakeley: Ex PMte Association of Jdte.cts, .xc. (1950) 82 C.L.R. 54 that a deci'3ion by a Concilil'.Ltion Commig.<:;ioner that no disnut€' existed s not. uuder section 16 of the Aet as it then stood-a provision similar in .effect to section 31 (1.) of the Act _protected from a writ ofmandaml1S under section 750f the Constitution. Itse~ms likplv, in view of the' etum from the majority .iud~mentin R. v. Foster, quoted above, that the decision would be the same in a se where it was the action of the Court, instead of a Commissioner. which Was in question. The dictum of e nrrsrnt Chief Ju,stice in R. v. i1f1wra1/: Ex pa.~te P1'ocfm' (1949) 77 OJJ.R. 387 at page 399, in connpxlon ,,'th a Lo~a1 Reference Board c."1tablished under the 0011 lIUning Industry Employni.ent RegnlR.tions, is in 0';Qint. Hi,'! Honour said-H It is, of course, clear that in a matter whi.ch could not under th" Constitution be ~~acpd by the"legislature under the authority Qf the Board, regulation 17 fa provision similar to Rection 31 (J.)J could haye no effect in protecting the Board's order or determination from prohibition." r Turning now to th,e question of wh~t constitutes a ," dispute '-', Higgins, J. said, in th~ Felt Hllttf>l's' "':ase (1914) 18 C.L.R. 88 at page 10~-" There is no need . . . for the e'm.-ploYe~s tf) strike. or tln'ow the ~'"dustry out of gear, in order to establish the fact of a disDllte ", but the log of demands must. be cc real; ~enuin:e, and intended to be pressed by any appropriate means." ,f, The next qUf',Btion to be considered is whetb8l' a dispute is "indnstrinl". In the Ferlemtr-d Stnte fS~hool Teachers' ASSofliat'i(}wof Aw~tralirt v. Victorirr, amil Ofhe'rs (1928) 41 C.L.R. 569, thp 'High C:ol1rt (jscn.<;,~eil the vnriolls definitions of the U sphere of induRtriJ'lJimn" jn nrf~vioUR C~Ses. vi-;~., 'I in onprl'ltio'1s )1:, which capital and labour are contributed in co-oper'-lt.ion for t11e sati~factlon ofhl.linan wanto: auf!. dp.o:i"e~ 11 <:)1 01' in operations in which the relation OT emuloyel' nnd €1nployee subsist,'!, inclnrlin,g, -perhAps, (i~nul1'cati011 diRl)l1te<; ",_" or in operations which are cflrried on whollv or mainlv hv llTIll1lHll lahollr ,,__ 1,1,01' in 'operations witb a view to the production or diM.rihllt.ion· of wra1th". The CI"l1l'rt cl"ln~ide"f'(l tl1.at thesp Rug~·p}'tions held the most divergent meanings of which tl'c Cf ~mher('; of inr1lT~f;ri~li."lm n if'! rea~(,)l1ably -~-apable. The ffi<Ijoritv in this cMc, Knox. C.J., Gavan Duffy and Starke, JJ. held that the state educational ~.Ystem did n~t satisfy any of these definitiQ_Us. ' (v) (vi) (i) .to prevent lock-outs and ,trikes in relation to indnstrial disputes; (ii) to' constitute a c..,mmonwealthCourt of Coneiliat.ion and -Arbitration having jurisd)e' for the prevention and set.tlement of indust.rial disputes; to provide .for the exercise of ~he- jurisdiction of the Court by conciliation with a .vie·f; amicable agreement between the part.ies; in default of amicable agreement. bet.ween the parti~s, to provide for t.he exercise of' jurisdiction of t.he Court by equitable award; to enable, States to ref~r industrial di,puteg to the Court, and to permit the working of' Court and of State Industrial Authorities in aid of each other; to facilitate and encourage the organization of representative bodi-es of employers,an employees and the submission of industrial disputes to the Court by organizations, to permit represent.ative bodies of employers and employees' to be declared organizati' for the purposes of t.his, Act; , , . to provide for the making,. ~nd enforcement of industrial a~reell1ents b~tween emplo/< and employees in relation to industrial disputes. (iv) (iii) (vii) o Another qU,estion is associated with the meaning of ",~xtcndingbeyond the limits of any Olle S,' " It appears, from the eases that it is not necessary that t.he employers concerned should, them~elves, c ' business in more :than one State; or that the products (if aU)') of an industry should have an i)lt • market; or that the employees concerned' should be in the habit of moving from one to another; or that" a dispute should begin in one State and thence spread to others; or the operations and conditions of the industry in one State should have any direct action or reactio' respect to the operations or conditions in any other State, It is snfficient if the dispute exists, inf more Stat.es than one; th~ industry itself creates a .sufficient. nexu.<:; between employers to link u:' 'Olie single dispute c1isag'l'eements which otherwise might be regarded as a series of identical local d' (see R. v, Commo;,wealth Co,,,,t of Conciliation and A;'bitration and Others, ex ~,arte G. P. Jom!' , Others (1914) 18 C.L.R. 224). However, Calendonian ColMe,.,:es Ltd. and Others v. A"stralasian Co '.SilOle .Employees' Pedemtion (No.2) (1930) 42 C.L.R. 558establisiled that a "sympathy" strike a1' one State; supporting a "genuine ,; stl:il\:€ in another, will not create a disput~ " extending beyond the?, ~.£' anyone State". The employees in each State must be pressing genuine demands against empL in each State. The power under paragraph (xxxv.).is exercised in the Conciliation and Arbitration, Coal In Navigation, Snowy J\1:onntains Hjrclro-Electric Pmver arid Stevedoring Industry Acts. . Mention should be made of paragraph, (=xix) of section 51 of the Constitution-" the incid power "-which confers power on Parliament to legislate with respect to "matters· incidental. { execution. of any po,ver vested by this Oonstitution in the ·Parliament or in the Governrrl~ the C01~lmonwealth, 01' ill the Federal Judicature, or in any department or officer of the Commonwea It is under this paragraph, together with paragraph (xxxv.) read in light of the common law rule;'. everything which is incidental to the main purpose of a legislative power is contained in the grant b$: power itself, that much of the Ccnciliation and Arbitration Act has been enacted. The High Court " in Ped-emteel lJ-onUJorke?'S' Association of A"stral.ia v.Commonwealth (1951) 84 C.L.R. 265, that.' provisioll..'i in Part VI., Division -3 of the Act, inserted in 1949 with a view to ensuring that tlie eleetic' officers. of industrial organizations is duly carried out, were validly enacted unde~ the" incidental pow and in the same judgm-ent pointed out that simila.r considerations were r€sponsible for the High 01:) upholding the provisions contained in Part V. of the Act. of 1904 (now contained in Part VI.) fOr registrat.ion of organizations of employers and employees (J"",b"nna Coaliliine v. Victorian Coal ffli'i', Association (1908) 6 C,L.R. 309). Because t.he'legislative power conferred by paragraph (xxxv.) reI.: to disputes to which large and changing bodie.s: of men were or might be parties, arid appointed arbitra·­ as the means of settling such disputes, it was consi c1ered to· be incidental to the main purposeo£ power to provide for the registration of associations of employers and employees and for the incorpori of the bodies so registered. By t.hat means the double purpose was thought to be served of enabling representatiou of pot.ential disputants before the 'Court and of providing a met.hod of working out, scope and operation of awards. The Court now decided that the incidental power also includes leg'isla authority to take measureS directed to ensuring tha t the officers of an organization so registered' incorporated shall he elected in a manner calcnlated to ascertain the authentic will of the members. Under the, incidental power, moreover, Parliament has enact.ed the enforcement or "sanctio provisions of the Act. It will be seen, therefore, that the power to legislate on matters incident.al t.o the execution of COnciliation and arbitrat.ion power is of .far'reaching cffect. 3. AN HISTORICAL SURVEY OF SOME MAIN FEATURES OF THE LEGISLATION RELEV TO THE 1956 BILL, (a) ODJECTS OF THE LEGISLATION. The chief objects 0> t.he original Act were: ." object which was given pride of place in 1930 was placed second (( to promote goodwill in industry. and to encourage the continned and amicable operation of orders and awards made ·in set~lement of industrial disputes". Alone, the object of encouragement of asso~iation.sof employers and employees to organize and make of th~ Qourt·has remainedc:hrough the·years. (b) CONCILIATION' AS DISTINCT, JrROM ARBITRATION. .',.', The pow-er of Parliament, under section 51 (xxxv.) of the Con.stitution, is to legislate with respect to t:",'conciliation· and arbitration for the .prevention and· settlement of industrial diRputcs extending beyond ~4e limits. of anyone St,ate". Both ·conciiiation and a:rbitration import the notion of a. third party mediating :between opposing parties. in dispute. In ,the case of conciliation the mediator's ·function, :~~ying .heard both ·the disputants, is to bring· them to ~n agreement, .In the absence of any agreement ~;His the functIon of an arbitrator to determine, having heard the disputants, what their respective right,:; $4a11 be.. '-'_Conciliation" do-es not apply only to the" prevention" of disputes, nor" arbitration" only ~i; the "settleinent'" of existIng disputes. Both terms-" conciliation and arbitration "-refer to both ~_~rms-"preventionand settlement" (Merchant Service Guild of AustralaSia v. Newcastle ,and Hunter ,,:'v8r Steamship Co. Ltd. ·(No.l) (1913) 16 C.L.R. 591). It was beeause of the absenee of ",ny element of ~t-hearing of a dispute between two actual disputants by a third·party mediator that the," conciliation ~:hmmittee.~" provided for by the Act as it stood in 1930 were held to be unconstitutional by the High Court ~~;, th-e AustJ;aJian R~Hways Union Case-see below. ,,,, Conciliation, as distinct from arbitration, has always been given a special place in the legislation. :;_;ote paragraphs (iii) and (iv) of the 1904 Act's objects referred to above. The original c~lllception was that the Court would be a b~c1y· promoting a frie~dly atmosphere in ~.ilich mutual di~erences could be settled with the assistance of an impartial chah-man. The first Act not 4iliy einpowered the. President to appoint deputies who could exercise sncp-ofhis· powers and functions as '\~'sa"'i\Tfit to ·assign, but it also provided, in section 34) that the Court could temporarily refer any matters ~£ore it to a conciliation committee consisting of an equal n'\.1mber of representatives of employers and ~w,ployee-s who .were to endeavour to reconcile the parties. In furtherance of the conciliation process the ·~t als·o empowered the. Court to refer any dispute befor-e it or any matter adsing ther-efrom, to a Lo~al :~dus:trial Board for inv-estigation and report. To this Board the Conrt was empo,vered to delegate such .'Awers in relation to conciliation as it deemed desirable.. nplifying this, the third and fourth objects of the 1947 Act were stated- "to provide for the appointment of Conciliation Commls·sioners having power to prevent and settle industrial disputes by conciliation and arbitration ,; i H to provide means whereby a Conciliation Commissioner may promptl~y and effectively, whether of his own motion or otherwise, prevent and settle threatened, impending, probable or {':xis~ing industrial dwpute'3". . . rrhe 1947 Act in fact constituted·a major departure from. the previons nUH:hinery in that provision ~Vas made for Conciliation CO:mpl.issi.oners with powers of conciliation and arbitration which were exclusive 1£ the ·oowers.of, th.-e Court and only fOllr classe.'":> of· industrial (lisputes were t.hr.ll rcs·erved to the Court.. The lllakingand enfor~elllen't,)ofindustl;ial agreelllents~th-e seventh provision of the chief objects of the original Act---'is no longer specifically'. mentioned among the legislation's object,>. It is nevel;theless ltc,8Jt '\"it.h a~ length in Part VII. of the existing ~ct. Ohall/?€.'> in the nature of the Arbiti'atioll Court's pO'wers sinGe 1904; partitnlarlJ" in re.<;pect of the ~"'i:erClse ·of jndicial pO"'ivers, questions of enfOrC€lllent of ilwards and orders and ~nterpretatiollof award.::;·, are referred to elsewhere in this paper. 'rhe experience of these clianges'provide,~ reasons for the· inclusion the current Act of two, 'objects' provisions n~t mentioned 'in the original Act, llamely- "to provide for the observance and enforcement of such orders and awards"; and "to constitute a Commonwealth CbUi't of Conciliation and Arbitration having exclusive appellat-e jurisdiction in matters of law ari~ing'underthis Act and limitt"d jurisdiction in relation to industrial disputes". The. (( goodwill in industry 'l;i 1947 ~s- ,\' In the course of the 29 amendments of the Acfthe objects· have been altered from time to time. They Jho,\y conveniently the conceptual changes that ·the Act has from ti~le to time e.xpre.ssed. For example, the ·tovisions relating to lock-outs and strikes were repeal~din 1930 and the first provisi.on then became" to ·~romote goodwill in industry by conciliation and arbitration". The fifth object of the Act was repealed in 1947 when other major changes ,vere made in·the legislation. . u . .. rrhe 1947 Act's attempt to streamline the machinery led to the first object becoming- (, to establish an expeditious system for preventing and settling industrial disputes by the method of cone-iliation and arbitration '? 1; lOla 10 that the minimum amount which it was fair and reasonable tQ pay to an unskilled labourer was 7s. per da He then adopted the principle of applying this minimum standard in other cases with which he dealt,} settling industria~ ~isprtte.s. . " In 1913 the concept of adjusting the basic wage in accordance with variations in the Commonwealf Statistician's i'etai! price index numbers emerged. rrhen ·the Court took coO'nizance of the index uumbe covel'iug fMC!- and groceries and rent of all houses (Ie A n· series) for the 30°more important towns of' COllllllonwealth, which had been .published by the CommOlllveaIth Statistician for the first time in pre,ceding year. (Adjustments were subsequentl;y based on the I( All-Items" index number-the U series, on which the Co-urt bases it':; cc Court" series index number.) At. first the Court used Stat1sticia:p.'s figures for ,the calendar year prior to the date of the aWal,~d. In 1918, however, . , figlll'es ,for .the Ilearest ~welve months available prior to the making of the award used (Gas ·.Employees' case 13 C.A.R. 437). In 1920 private arrangements were being m ".. betwe;n employers and employees to adjust wage, rates automatically at intervals in accordance ' price level changes. In 1921 the Court made provision in an award, for the automatic adjustment of w according to the rise or fall in. tl;Le cost of living as ShO'Yll by the Statistician's index numbers. Previo . :l.l1y adjustment of wages to meet changes in the cost of living had to be by variation of the award by::,' Conrt. Now it became a term of the award that wages ,,,ere to be adjust-ed quarterly, on the basis of' Statistician's figures for the preceding twelve months prior to each quarterl;y adjustment. (Engine-driy and Firemen's Case (1921) 15 C.A.R. 883 at p. 913; JPed-erated Gas Employees Case (1922) 16 C.A.R.3.< p. 16): The principle of automatic adjustment of the basic wage was abandoned by the Court as a res, of its.Basic Wage and Standard Hours Inquiry, 1952-1953 (77 C.A.R. 477). In 1931 the first separate hearing oJ; inquiry to determine the basic wage was held. the Court dealt with ,the basic wage through. its power to fix minimum rates of pay. In 1947, the Act was amended to prescribe, amongst other things, that the Court might, for purpose of permittin,g 'or settling an industrial dispute,. make an order or award altering the basicw' or the, principles upon which it was computed. It also provided that the Court might' make an ord award altering the minimum rate of remuneration for adult females in an industry. , In 1949, the present provisions" which include a definition of the basic w.age, were insert{ follows:- ' "The Court may, for the purpose of preventing 01' settling an industrial dispute, make an' or award- (a) altering the basi~ wage for adult males (that is to say, that wage, or that part wage, which is just and rea~onable for an adult male, w~thout regard to circumstances pertaining to the work upon which, or the industry ih which," employed) or the principles upon which it is computed; (b) determining or altering the basic wage for adult females (that is to say, 'that Via that part of ~ wage, which is just and reasonable for an adult female, wi' regard to any circumstance pertaining to the work upon which, or the in'dust' which, she is employed) or the principles up~m which it is computed." Basic wage fixation has thus been developed by' the Court rather than by the legislature; . ·amendments of the Act from time to time have merely given recognition to the Conrt's practice. (g) PROOEDURE AND LEGAL REPRESENTATION. The 1904 Act provided that the Court could, subject to the approval of the Governor-General,: rules regulating the practice and procedure of the Court. All rules made were to he laid bef(jr~' Houses of Parliament which could disallow them. . . Amending legislation in 1909 invested the President with power, sub'ject to th~ approval', .Governor-General, to m;lke rules riot inconsistent with the Act or the reg.ulations. In 1926, when the of Chief Judge was created, this 'power was vested in that office. _ ; The 1947 Act enipo,,:"ered the Governor-(}eneral to make regulations for regulating the practi pro~ednre of the Court and. the Conciliation Commissioners. It also provided that­ . 'I In the hearing and determination of an industrial dispute­ (a) ~he procedure of the Court or- Conciliation Commi$sioner. shall, subject to this the regulations, be within the cliscretion of the Court or Commissioner; (b) the Court or Commissioner shall not 11e bound to act in a formal manner and sha, bound by any rules of evidence .but may hifoi-m its or his mind on any matter. manner as it or he thinks just; and (c) the Court or Conciliation Qommis'sioner shall act according to equity, good cO and the substantial merits of the case, without regard to technicalities forms."· Paragraphs (b) and (c) were not new in substance. In changing form they had appeared in the.A' 1904. u The 1904 .Act provided ·for legal representation before the Oonrt onlJ by consent of all the parties 01' . ave of the President. In 1910 the power of the President to grant leave was deleted and, until the Act amended in 1928 the parties could be legally represented b37 consent of all parties only. Amending ation of 1928 l~eturned to the 1904 position. In 1930 for the first time, the consent of all the parties the leave of the Court were required. With thr. "dichotomy]l of the 1947 legislation, the 1930 iremcnts were continued as t9 proceedings before the Conrt b11t legal representation was not permitted 11 in procee::1ings before Conciliation Comm'issio·ners. T,Jlcse restrictions did not apply, however, to 'cial proceedings before the Court. In 1951 the Act was again amended to provide that, in proceedings before the Court or a Conciliation miss{01l01',.legal representation of.a party was permissible by leave of the Court or a Conciliation missioner. The Court has indicated that leave ,"auld, as a matter of prima facie right, be granted. Waterside Workers' Award (1936) (1953) 77 C.A.R. 74.) . (h) SANCTIONS. The history of s·anetions can be divided into tlnee phases. 'fhe first, that or the direct prohibition of strikes and lockouts by the Ac~ itself, ran from 1904 until O. The second phase, from 1930 to 1947, might qe broadly de."icribed as one of no sanctions, for the contained no provisions against strikes as such. Provisions for the enforcement of awards, however, retained-for example, section 49 prohibited wilful default in compliance with an award. So also retained the Court's powers to ordcl' compliance ,,,itll an award (inserted in 1904) and to enjoin ches of the Act. The third period, rrom 1947 to the pre:-;ent, has seen the use of the Court's contempt isdiction founded on its exercise of its long 3tanding power to order compliance and enjoin. The current Act continues, of course, provisions which date. back to 1904 directed to the observance' wards, e.g., powers to fix penalties and to impos9 penalties for breach of non-observance of awards. e are, in additioll, penalties for breaches of pro cec1nre and for breat.hes of provisions relating to ret ballots. A chronologica! account of the major sanctions provisions in the Act follows:- Phase 1. Part II. prohibited lockouts and strikes in relation to industrial disputes under heavy penalty. 'f: Section 7 provided that a refusal to offer Or accept employment upon the terms of an, industrial agfeement should be tmitamount to a lockout Or strike. Section 8 'provided tnat any organization which, for the purpose of enforcing compliance ";'"ith the ~.n,land8 of any employers or employees, ordered its members to' refuse to offer or accept employment .9lr1d be deemed to be guilty of a lockout Or strike, ~, cfs No.6 of 1911 and No. 18 of 1914. The foregoing provisions were amended in minor a$pe·cts. it No. 31 of 1920. 5f~, Definitions of " strike" and "lockout" were widened. A new section, 6A, included in those bound oY;"the prohibition of strikes and lockout'l, persons or organizations bound by an award of the Court or e~~itled to the benefit of an award of the Court. ~~: , Section 8 of the original Act was also widened to provide that an organization which" encouraged, ~ised or incited:' its members to refuse to offer or accept employment should be deemed t6 be guilty of 2:trike or lockout as well as one which fl ordered" its members to do so. Also a new sub-section (2) waS '·~ed which. provided that an organiiati?ll would be deemBd to have ordered" &c. its memb.ers if the Co~mittee of management or an officer or officers of the committee of management did so. ciNo. 18 Of 1928. '.'", ..A. new section, 6BJ instructed the Court in fixing a penalty to take into account any bona fide efforts ~ae by an organization to prevent the committing of an. offence. A llew section was also inserted ,~~tling persons or organizations entitled to the hellefit of an award to apply to ·the Court for an order 'aring that a strike or lockout existed. This pro vision was ins'erted to meet the case of .sectional strikes. ~:le Court did make an order declaring that a ntl'ike existed in an industry or section Or industry, m'~~oyers could. uIlder the new prov1"iion, Toek out other :;;ections of workers not on strike without ~tting an offence: ~" Section 8 was also amended, 'Principally to provide ror penalties where an organization ordered, n:C~~uragedJ advised or incited its members to refuse to offer or accept employment. I UI:) . Wilt 811b~section (2) of section 8 was also strengthened. !rhis sub·section had been fOtmd to be proc1cic"j] useless because of the .difficulty of proving that a cornmittee;.of managelilent approved of a lockout Ol' !fhe neW sub·sectioll provided that an organization wa., deemed to have ol:del~ed, encouraged or advised member;:;, to refuse to offer or accept employment if- (a) the commit~e of management of the organization 01: of. a branch of the organization, (b) a member of the- committee of management, (c) any body of persons controlling tIw organization or a branch of the organization, Qr (d) an officer of the organization or of a hranch of the organization advised, &c., members to refuse to offer or accept employment. Paragraph (c) was aimed at the ostensible con trol of an organization by a shadow' committee wIt c8nied on 111 a troublesome period whiI~t the official committee sank into the backgronnd. Phase 2. Act No. 43 Of 1930. / 'fhis Act effected a radical change by abolishing the provisions in the previous Acts prohibiting 3t£: and lockouts. A new section was ins'crted which provided that no officer of an organization Or membe any committee or servant or agent thereof, should, chlring the currency of an a,,,a1,"(l in the inch~~ concerned, advise, encoura.ge or incite all~Y memb~r or the organization to refrain fl'om"--"" (a) entering iilto a 'written 'agreement, or (b) accepting the employ~neRt, or . (c) offering for work or working in accordance' with the a,vard~ This sectioll became section 78 in the ~947 Act. ~ Phase 3. The 1947 Act made the Conrt a SujeriOJ: Court of Record.. Previously it') powers to plmish conte':" had reiated to 'contempt in the face of the Oourt. The changed provision. made much more significant;' Rowers/which the' Court had possessed for many yeats to order compli~mcc 'with its· awards and enj ·breaches cf. the Act. The history. of these provisions follows:....--. 1904 Act. Section 38 gave the Court power to fix' maximum pem,llties not exceediug £1,000 for breach l1on~observance of award.~ in the case of an organization or employer, or £10 in the case of au indivi . member. It also had power to impo.'Se pemilties not exceeding the maximum penalties .fixed for any hI' or non-observan·ce of an award proved to ·its satisfaction to have been committed, and further, to e I1n' organization or p"erson from committing 01; continuing any contravention of the Act. Under section' 48 the Court could ~ake an'drdel' ill the nature of a mandamus or iuj1,l.ll: compelling compliance with the awal'd 01" restraining its breach- under pain of fine 01' imp1'isQu - Penalties of £100 or three month."')" imprisonment .were provided. In addition to the penalty, any p found guilty of any contravention of the sB9ti0l?- in relation t.o lockouts and strikes or of wilful d ili compliance with an award,. was subject to disabilities which took away any right.~, privileges! bene~ advantages under the Act and caused him to cease to be a member or officer of -any organiiati(j .ass"Ociation and tobk away hil::l existing·' or accruing rjgh'l"l ·to any payment out of the fund.s 0 'organization. ., Ul1der section 78, penaltie5; of £500 in the .case of an organization, £250 in the case of an emp.l__ and £10 in the case of ari' eniployec, ,,,ere fixed for brr<1che.~ 01' non-observance of any term of all: inau~ agreement. Section 87 provided that a person or orga.nization dire~tly or indirectl.y eoncerned .i~ commission of ~ny offence. against the Act or co.unsellillg, taking part in or encol~raging the commiss"i:', any' offenCe, should be deemed to have committed the offence. Act No. 18 of 1914. Section 38 of the 1904 Act was mn.ended to give the Court power to order compliance with allY; of an order'or award proved to its satisfaction to ~a~'e been broken or not observed. .'. In 1918 1 in Alexander's eas~ (25 C.hR. 434), the High Oourt held, as mentioned above, that: President of the Court w.as appointed for sevel.! years only, and not for life as provided B ; Constitution, the Court was incompet.ent to excrci..ie any jndicial pOwer. rrhe result was that th could not impose penalties £01' breach or 110I).-ob~ervauce of its o~'der£l or awards, Act No. 39 of 1918. To llle~t this problem section 48 wa.S amended: to p1'ovi(le fo1.' the enforcement of awards by district ai, local Court. . . Ion IS judicial po,~er could validly co~exist in the Al'bitl'atioll Ooui·t with its arbitral functions was not in ue in Roach's case-in other words, the question of validity which the High Court had to decide in the :oilermakers' case was not· raised. Roach's case .did, ho\vever ;raise squarely the fact that the Arbitration a"ourt exercised two distinct kinds of power-one- being said to be part of the judicial power of the -'ornmonwealth and the other derived under an ex:ercise of the power conferred by section 51 (xxxv) of the (!tonstitution. The writ of prohibition was sought upon the ground that the jurisdiction of the Arbitration "burt did not extend to punishing as contempts attacks made upon the members of the Court in respect of e exercise of :the arbitral powers as distinguished fr~m their judicial powers. The High Court saicl- H • • although the occasion of the attack arises ,-out of the exercise by the judge of his industrial functions, the attack is associated with an intended exercise by 4im of the jurisdiction forming part 'of the judicial power of the Commonwealth, namely, the jurisdiction to entertain an application to commit for contempt in breach of an undertaking.. Conceding the validity of the distinction which it is sought to make on behalf of the prosecutor between what is a contempt . of the judicial power .and what concerns other kinds of power, the case is nevertheless one in which it was competent for the Arbitration Oourt to :find in the publications a contempt against the adininisti'ation of justice, that is to say, the exercise of the judicial power of the Arbitration , C~)Urt". .' t ,va,:; left for the' High Court in the Boilermakers' case to decide that the Arbitration Coutt could not '(Ifact validly exercise pa"rt of the judicial power of the' Commonwealth. In a decision o.n an application by Commonwealth Steel Co. Ltd. for an order under section 29 aga'inst tbe Federated Ironworkers' Association of AU3:tralia reported in 74 C.A.R., p. 91, the Arbitration q?ur~ held that U an organization is responsible for the actions not only of its branches but also of any e.ction or group of its members ", and that "knowledge of any such action"if in breach of the legislation .-der which the organization is registered or of some award or ordei' made in accordance 'with powers Ii,ereby graAted, is sufficient to involve the organization itself". (i) APPEALS. The first provIsIOns .for appeals against awards, Or orders were inserted in the amending act of ~9'30, which provided that an appeal 'lay to the Court constituted by the Chief Judge and not less than WO other judges against any provision in an award or order 'of a Conciliation Commissioner or a ~;?nciI1ation Committee affecting wages, hours or any condition of employment which in the opinion of ilie Court was likely to affect the public interest No appeal-lay fro111 the award of a ,Judge though the 1920 amendments had authorized a single ~~dg'e (earlier a Presidential member) to invite two of his colleagues to sit with him in relation to a ispute.. The 1947 Act providing for Conciliation Commissioners independent of the Court left their a\vards ~i~liallengeable. However, a Commissioner was enabled to .refer to the Court any question of law arising lit of a matter before him or any question as to whether he had jurisdiction under the Act in relation ~jthe matter. The 1952 legislation. provided for appeals from the uecisions of Conciliation Commissioners and efel'-e-nces to the C~:mrt where, in 'the opiniQll of the Ohief Judge, the matter was of such importance Itat in the public interest it should be dealt with by the l~ull Court. rrhe requirement of securing the ~llve of the Chief Judge was inserted with the object of limit.ing appeals and references e~cept in really ~portant cases. : 4. IMPLICATIONS OF THE HIGH COURT JUDGMEN'l' IN THE BOILERMAKERS' CASE. On March 2, 1956, the High Court delivered judgment in what is commonly lUlOwn as the ollermakers' case. By majority, Dixon, C.J., IVIcTiernan, Fullagar and Kitto, ,JJ. (Williams, Webb and '~ylor .J,J. dissenting), the Court made absolute an order nisi for a writ of prohibition which called in ."',estion or·ders made by the Arbitration Court on May 31 and June 28, 1955. The purpose of the first 'Wer was to require the Boilermakers' Society to observe a provision in an a\vard which prohibits bano:::, '~itations 01' restri~tions on the performance of work in accornance with the award j while the second ~!:ler, \vhich found the Boilermakers' Society guilty of contempt of the Arbitration Court by wilfully ·~.obeying the order of May 31, imposed a fine of. £500 npon the Society and order-ed it t.o pay the co.'3ts o~,:the pr~ceedings. rrhe High Court in so doing- upheld a challenge to the validity of sections 29 (1) (b) ~d (c) and 29A of the ConcU-iation. a1~d- .Arb·itration Act 1904-1952, the section.'S under which the ord-ers '~re made. . The· following states shortly the implications of this decision;- It is beyond the competence of the Parliament to invest with any part of the judicial power any QJly or persons whose primary function is not the exercise of judicial power. The Constitution does not allow the use of Courts established by 01' under Chapter rII. for the ~~harge of functions which are not in themselyes, p~p·t Qf th~ judicial power and are not auxiliary 01' c,i~lental thereto. . 10115 Printed and Published for the GOVERNMENT of the COM~~)NWEALTTt OJ!' AUSTRAUA b;o.' A. J. ARTHUR, Commonwealth Government I;'rlllu~r. Callb~rra. s. 16 (6) seS3A (5) se 29A s: 119 s. S6 s. 59 s. 96H 1.'he function of an industrial arbitrator is .~ompletelY outSide the realm of jUdicial powei' and is of a different order. Th~ Al'bitratioll' C~U1·t is not a cr federal Court 'J within the meaning of section 71 of the Constitution. It was created and exists as and for an authority entrnsted with the work -of' industrial conciliation and arbitration and it is not possible to combine in one body the arbitral powers and functions and any part of the jUdicial power of the Conlllonwealth. ' The provisions which either ate or lllay be thought to be capable of reference only to the judicial power ,of the Commonwealth and 'which therefore involve functions which cannot be discharged or may llO~, be capable of being dis'charged by the Arbitration Oourt appear to be- s. 29 (1) (a) which authorizes the Court to impose peuaIti., :fixed under sec. 40 (0) £01' hreach or non~observance of ano:rdei' or award proved to the satisfaction of the Court to have been committed. s. 29 ~1) (b) and (c) which e.ll1;powet"the"Court.to order compliance' "with. an order "Or award proved to the satisfaction of the Court to have been broken or not ob~""erved or to enjoin the committing or continuation of a contrayentioll of the Act or a breach OJ: non-observance of an -order or award. which gives the Court power to punish contempt of its power and authority. which allows persons who have committed offences against the .Act to be char"ed before the Court. which gives the Court (and 0 ther Courts) jUl'isdictioll to impose penalties breach or non-observance or fin -order or award. which protects organizations and members from being sued ror pe6uniary nenallt" <.:,il except in the -Court for acts and omission~ in respect of which the Court ha"'<''''.:Il jurisdiction. s. 96G (3) (a) and (b) which authorize the Court, where an election irregularity has been faun to declare an election void or a person pUi'porting to..J1ave been elected not to hav been and to declare another person to have been ele'trted. ", which authorizes the Court to enforce orders made under the dispnted electio provisions. which validates certain aet~ done by the Court under the disputed provisions. s. 16 (2) and (3) which authorize it Conciliation Commissioner to refer a question of law the Court and the latt€r to determine it. which seeks to overcome jurisdictional Pl'o_blems, of the dichotomy between Court and Commissioners by making the jurisdiction of each depend 011 the op' i of the Court. "" . " , which authorizes the Court to .he,a1' and determine questions illV~ving "claims member~hip of an organizatIOn."; The observations in the majority decision ~bou t these sections, other than from .sections 29A 29 (1) (b) and (c), are obiter diCta only. The majority decision Commended that the purpose sough be achieved hy sections 90G (3) (a) and (b) " 96H and 96J might be achieved hy provisions differ conceived j that sections 16 "(2) and (3) might not be open to at~ack as' involving an advisory and n judicial fnnction; and that section 16 (6) might be sound as it is. In additionJ there could be doubt about t~e validity -of section 29 P) (d) and (e) authorizing Court to give an interpretation of an award or order and to hear appeals from the Registrar. There is no reason why the Parliament should not clothe the arbitral authority }vith the designa and character of a Court and provide a t1tatus and tenure for the arbitrators of the same descriptip. that required for judges. It cannot, consistently with the Oonstitution, exercise' the pOwer conferI' section 71 of the Oonstitutimi for the creation of a Court for the fulfilment of the functions and ob forming the subject of the legisIatiye power confer red by section 51 (x.'{xv.). It needs to be emphasized that the High Court's decision doe.'S not mean that what these;}" referred to above sought to do cannot be done at all-lllel'ely that it cannot be done t.hrough the instrn which is the Arbitration Court as known at. pr"c.s~nt. ' The implications of the High Court jl1dgm~lltJ·how€ver, extend far beyond the 'Arbitration Act and other Commonwealth legislation in the industrial field. ---_._---