267:. The first issue in contention was whether there was an industrial dispute that extended beyond the limits of one state. One of the arguments advanced was that the businesses were distinct and were not acting in concert, an argument that passed without any apparent reference to almost all employers being represented by the same lawyers. The second issue was whether there was a genuine dispute, as the union sought to establish the dispute by reference to the service by it of written claims and the non-acceptance by the employers. A third issue concerned the extent to which the Arbitration Court could make an award that was inconsistent with a state wages board determination or a state award. In the High Court NSW intervened, represented by
31:
173:. While Griffith CJ and O'Connor J approached the arbitral function as an exercise of judicial power, this would also be subsequently rejected by the High Court resolving that arbitration was the exercise of a legislative function. The decision of Griffiths CJ and Higgins J approached the conflict of laws issue on the narrow test of whether it was possible to obey both laws, an approach that was considerably expanded from 1926 by the adoption of the "cover the field test". The paper dispute, doubted by Griffith CJ and O'Connor J in this case, would become an enduring feature of Australian industrial relations.
384:, where the majority, Barton, Isaacs, Powers and Rich JJ held that a judge of a federal court was required to be appointed for life. Because the President of the Arbitration Court was appointed for seven years, the Arbitration Court could not exercise federal judicial power. This raised the issue as to whether the invalidity extended to awards that had been made under the arbitration power. A different majority, Isaacs, Higgins, Powers and Rich JJ held that the making of an award was not the exercise of a judicial function, these portions of the Act could be severed and that the rest of the Act was valid.
289:
allow the submission of hypothetical or abstract questions of law which may never arise for actual decision. Any opinions expressed by the Court on such questions can only be obiter dicta of more or less weight, but having no binding authority". Higgins J agreed with the principle, but having formulated the questions stated for consideration, disagreed that the questions were abstract or hypothetical. Higgins J did accept that some of the questions could not be categorically answered as the involved cinsideration of facts that had not been determined.
293:
of the domestic concerns of the States appertaining to trade and commerce is forbidden except so far as the invasion is authorized by some power conferred in express terms or by necessary implication". O'Connor J similarly held that the States had exclusive control over industry operating solely within a State. Isaacs and
Higgins JJ had rejected the reserved powers doctrine from the moment of their appointment in 1906, a position they maintained in their judgments.
425:. There was no relevant change way in which the legislation approached the potential conflict between federal awards and state laws, continuing to expressly provide that federal awards should operate to the exclusion of state laws and awards, and instead what had changed was the interpretation of those words by the High Court from 1926. A subsequent High Court explained the approach as follows:
430:
award purporting to make an exhaustive regulation shall be treated as the exclusive determination of the industrial relations which it affects. "The award itself is, of course, not law, it is a factum merely. But once it is completely made, its provisions are by the terms of the Act itself brought into force as part of the law of the
Commonwealth"
205:. By reference to this history, O'Connor J characterised an industrial dispute as being characterised as unable to be resolved by ordinary tribunals as it was not about the breach or observance of existing contracts, but rather grievances that had developed under the existing contracts and for securing a new agreement.
439:
The High Court held in
Whybrow's case held that the ambit of an interstate industrial dispute could be established by way of a paper dispute, provided the court was satisfied as a question of fact that the dispute was real and genuine. In the Whybrow case Higgins J had held that of the 23 matters in
323:
Isaacs J saw the conflict of laws as the central question to be determined, holding in emphatic terms that "The moment we depart from the clear terms of sec. 109 of the
Constitution, there is nothing but chaos. That clause and covering clause V. form the keystone of the federal structure, and if they
429:
The basis of the application of s 109 to a State law affecting industrial relations regulated by an award is not that the award is a law of the
Commonwealth within the meaning of s 109 but that the Conciliation and Arbitration Act constitutes the inconsistent Federal law inasmuch as it means that an
288:
One aspect of the decision on which all judges agreed was that the High Court would not determine hypothetical or abstract question with
Griffith stating "The questions submitted in the case are to a great extent of an abstract character. In my judgment the provisions of sec. 31 were not intended to
292:
Fundamental to the judgment of
Griffith CJ was the doctrine of reserved powers, stating "pl. xxxv. is to be construed having regard to the rest of the Constitution, and particularly with reference to the doctrine repeatedly laid down by this Court that any invasion by the Commonwealth of the sphere
387:
From 1926 the
Arbitration Court was constituted by judges who were appointed for life and the Court exercised byoth judicial and arbitral functions. In 1956 the High Court held that no federal court could exercise both judicial and arbitral powers. Following this decision the judicial and arbitral
339:
Similarly O'Ocnnor J held that "the
Convention and the British Parliament were dealing with the subject practically, that they had in mind actual differences between employers and employees, differences of the kind which the public interests demanded should be submitted to a federal tribunal. They
152:
could make an award that was inconsistent with a State wages board determination. The High Court was divided 2:2 and thus the decision of the Chief
Justice prevailed, in what is sometimes described as a statutory majority. Griffith CJ, O'Connor J agreeing, held that the Arbitration Court could not
185:
had been a contentious issue in those debates, in which the three inaugural 'federalist' judges, Griffith CJ, Barton & O'Connor JJ had all opposed the industrial dispute power, while the two 'nationalist' judges, Isaacs & Higgins JJ had supported the power. The case is properly seen as a
335:
Griffith CJ and O'Connor J rejected the attempt to establish jurisdiction to make an award by way of a "paper dispute". Griffith CJ held that the term "industrial dispute" connotes a real and substantial difference having some element of persistency, and likely, if not adjusted, to endanger the
301:
The view expressed by Griffith CJ, and O'Connor J, was that arbitration was a judicial function, decided in accordance with the law, including state laws. The opposing view was described by Griffiths CJ as akin to a legislative power, was that the ability to settle an industrial dispute was not
364:. Because an employer could agree to pay more than the State minimum wage, the Arbitration Court could order the employer to pay more than the minimum. The reserved powers doctrine on which the decision of the majority was based was unambiguously rejected by the High Court in the 1920
440:
the log of claims there were only two matters that were genuinely in dispute. In this way the establishment of a paper dispute by serving a log of claims and its counterpoint argument as to whether the dispute was real and genuine were a feature of Australian industrial relations.
167:, that the powers of the Australian Parliament were limited to preserve the powers that were intended to be left to the States. The reserved powers doctrine was challenged by Isaacs and Higgins JJ and ultimately abandoned by the High Court in 1920 in the
519:
357:
302:
limited by the effect of state laws, although neither Isaacs J, nor Higgins J, ascribed to the categorisation of the arbitral power as judicial or legislative, instead holding that the state laws did not limit the arbitral power or its exercise.
318:
30. When a State law or an award order or determination of a State Industrial Authority is inconsistent with an award or order lawfully made by the Court, the latter shall prevail, and the former shall, to the extent of the inconsistency, be
340:
were thinking of real industrial disputes, not of industrial disputes that existed only on paper, or were got up for the attainment of some other and ulterior object than the settlement of differences between employers and employees."
248:
and applied for an award to be made, seeking to establish the existence of an inter-state dispute by evidence they had served written claims on employers in various states. The majority of employers were represented by
416:
as taking a pedantic construction drawn from a verbal formalism. The proposition that the Arbitration Court could not make an award that was inconsistent with a State law had been reversed in the 1926 case of
336:
industrial peace of the community. It must be a real and genuine dispute, not fictitious or illusory. Such a dispute is not created by a mere formal demand and formal refusal without more".
926:
380:
52:
The Federated Saw Mill, Timber Yard, and General Woodworkers Employees' Association of Australasia Claimants v James Moore and Sons Proprietary Limited and Others Respondents.
630:
366:
181:
All five High Court judges in 1909 had been leading participants in the Constitutional Conventions and all are properly seen as among the framers of the Constitution. The
169:
1071:
327:
Both Griffiths CJ, and Higgins J, were more circumspect, limiting their consideration on the question of inconsistency to whether it was possible to obey both commands.
361:
656:
208:
Prior to 1900 there had been various attempts to legislate with respect to industrial disputes, including South Australia, NSW, New Zealand, and the United Kingdom.
773:
324:
are once loosened, Australian union is but a name, and will reside chiefly in the pious aspirations for unity contained in the preamble to the Constitution."
231:, including Isaacs and Higgins, supported the amendments and helped bring down the government, with Labour forming a minority government under Prime Minister
397:
754:
739:
724:
237:
149:
156:
The case dealt with three issues, (1) whether arbitration was a judicial or legislative function, (2) the position of federal awards in relation to a
182:
157:
244:
The Federated Sawmill, Timber Yard, and General Woodworkers' Union was one of the first unions registered. It was represented by
1046:
1041:
744:
H Higgins at p. 782, vote at p. 793, 12 in favour, including Higgins & Isaacs, 22 opposed, including Barton & O'Connor.
259:
1066:
702:
193:
The conciliation and arbitration power had arisen following the bitter and protracted strikes of the 1890s, particularly the
187:
1061:
245:
202:
198:
546:
418:
784:
1022:
194:
95:
1056:
871:
952:
692:
249 at pp. 267–268 per Mason CJ, Deane & Gaudron JJ, at p. 286 ff per Toohey J and at p. 305 per McHugh J.
610:
608:
606:
389:
228:
603:
310:
The way in which the Australian Parliament sought to deal with State laws was set out in section 30 of the
759:
vote at p. 212, 22 in favour, including Higgins & Isaacs, 19 opposed, including Barton & O'Connor.
421:, with the majority adopting the "cover the field" test for inconsistency first propounded by Isaacs J in
227:. The Labour Party sought to amend the Bill to cover State railway employees, and a number of radicals in
122:
The Arbitration Cort could not make an award that was inconsistent with a State wages board determination.
863:
808:
597:
393:
91:
975:
895:
1051:
836:
153:
make an award that was inconsistent with the minimum wages fixed by a Wages Board under a State law.
904:
1008:
995:
755:"Official Record of the Debates of the Australasian Federal Convention, Melbourne, 27 January 1898"
711:
689:
665:
590:
250:
164:
729:
Mr Kingston at p. 780-1 vote at p. 785, 12 in favour, 25 opposed, including Barton & Griffith.
573:
provided that if the High Court was equally divided, the decision of the Chief Justice prevailed.
145:
41:
822:
740:"Official Record of the Debates of the Australasian Federal Convention, Adelaide, 17 April 1897"
356:
in that it was a split decision, but rather from the adoption of its reasons by the majority in
30:
958:
224:
160:
and (3) the facts necessary to establish the existence of an interstate industrial dispute.
991:
931:
707:
685:
661:
636:
524:
493:
401:
69:
586:
551:
8:
935:
780:
640:
497:
220:
73:
555:
528:
725:"Official Record of the Debates of the National Australasian Convention, 6 April 1891"
1018:
570:
276:
272:
263:
254:
682:
Re State Public Services Federation; Ex parte Attorney General for Western Australia
594:
1012:
268:
88:
1035:
216:
103:
998:
529 at p. 547 per Dixon CJ, McTiernan, Williams, Webb, Fulager and Kitto JJ.
378:
The exercise of arbitration as a judicial function was first challenged in
232:
99:
360:, which also held that the question for inconsistency was whether it was
490:
Federated Sawmill Employees Association v James Moore & Sons Pty Ltd
133:
Federated Sawmill Employees Association v James Moore & Sons Pty Ltd
24:
Federated Sawmill Employees Association v James Moore & Sons Pty Ltd
948:
413:
388:
functions were separated, with the judicial functions performed by the
124:(per Griffith CJ & O'Connor J; Isaacs & Higgins JJ dissenting)
520:
Australian Boot Trade Employees' Federation v Whybrow & Co (No 1)
353:
190:
of the 1890s about the roles of the state and national governments,
107:
412:
The judgment of Griffith CJ was criticised by later Chief Justice
163:
Fundamental to the opinions of Griffith CJ and O'Connor J was the
927:
Waterside Workers' Federation of Australia v J W Alexander Ltd
381:
Waterside Workers' Federation of Australia v J W Alexander Ltd
352:
does not arise from the dubious nature of its authority as a
631:
Amalgamated Society of Engineers v Adelaide Steamship Co Ltd
1014:
The High Court, the Constitution and Australian Politics
215:
in the Australian Parliament was itself problematic, as
1006:
910:
657:
R v Kirby; Ex parte Boilermakers' Society of Australia
614:
774:"Waltzing Matilda and the Sunshine Harvester Factory"
373:
398:
Commonwealth Conciliation and Arbitration Commission
396:while the arbitral functions were performed by the
296:
1072:Inconsistency in the Australian Constitution cases
921:
919:
238:Commonwealth Conciliation and Arbitration Act 1904
150:Commonwealth Court of Conciliation and Arbitration
370:, after changes in the composition of the Court.
1033:
695:
916:
978:Awards to prevail over State laws, awards etc.
891:
889:
651:
649:
514:
512:
510:
508:
506:
897:Commonwealth Conciliation and Arbitration Act
838:Industrial Conciliation and Arbitration Act
617:, Ch 5 The Griffith Court by John M Williams.
485:
483:
481:
479:
477:
475:
473:
771:
471:
469:
467:
465:
463:
461:
459:
457:
455:
453:
186:continuation of unresolved debates from the
148:in 1909 concerning the question whether the
886:
767:
765:
732:
646:
503:
953:"Marshall and the Australian Constitution"
29:
747:
703:NSW v Commonwealth (the WorkChoices case)
541:
539:
537:
450:
762:
717:
583:Milne v Federal Commissioner of Taxation
271:as did the Commonwealth represented by
1034:
676:
674:
534:
913:, Ch 6 the Knox Court by Anne Twomey.
625:
623:
407:
241:was finally passed in December 1904,
947:
671:
305:
13:
988:Collins v Charles Marshall Pty Ltd
824:Conciliation and Arbitration Act
620:
547:Clyde Engineering Co Ltd v Cowburn
419:Clyde Engineering Co Ltd v Cowburn
374:Arbitration as a judicial function
330:
183:conciliation and arbitration power
14:
1083:
434:
258:with one employer represented by
213:Conciliation and Arbitration Bill
936:(1918) 25 CLR 434
783:. pp. 13–23. Archived from
641:(1920) 28 CLR 129
556:(1926) 37 CLR 466
529:(1910) 10 CLR 266
312:Conciliation and Arbitration Act
297:Judicial or legislative function
981:
964:
941:
856:
844:
830:
816:
802:
498:(1909) 8 CLR 465
223:relied upon the support of the
74:(1909) 8 CLR 465
1017:. Cambridge University Press.
872:National Archives of Australia
576:
561:
16:Landmark Australian court case
1:
1047:High Court of Australia cases
1042:Australian constitutional law
443:
390:Commonwealth Industrial Court
197:and the shearer's strikes of
176:
1067:Labour disputes in Australia
362:impossible to obey both laws
343:
7:
868:Australia's Prime Ministers
810:The Factories Amendment Act
283:
10:
1088:
1062:Australian labour case law
911:Dixon & Williams (eds)
772:Hamilton, RS, ed. (2011).
615:Dixon & Williams (eds)
188:Constitutional Conventions
864:"Alfred Deakin in office"
118:
113:
84:
79:
65:
57:
47:
37:
28:
23:
972:Industrial Relations Act
348:The significance of the
165:reserved powers doctrine
136:, commonly known as the
146:High Court of Australia
42:High Court of Australia
1057:1909 in Australian law
992:[1955] HCA 44
959:Australian Law Journal
932:[1918] HCA 56
708:[2006] HCA 52
686:[1993] HCA 30
662:[1956] HCA 10
637:[1920] HCA 54
525:[1910] HCA 53
494:[1909] HCA 43
432:
321:
144:was a decision of the
70:[1909] HCA 43
587:[1976] HCA 2
552:[1926] HCA 6
427:
358:Whybrow's case (No 1)
316:
314:which provided that:
402:Fair Work Commission
195:1890 maritime strike
781:Fair Work Australia
229:Deakin's government
221:Protectionist Party
211:The passage of the
593:526 at p. 533 per
568:Judiciary Act 1903
633:(Engineers' Case)
129:
128:
125:
1079:
1052:1909 in case law
1028:
999:
985:
979:
970:See for example
968:
962:
956:
945:
939:
923:
914:
908:
902:
893:
884:
882:
880:
878:
860:
854:
851:Conciliation Act
848:
842:
834:
828:
820:
814:
806:
800:
799:
797:
795:
789:
778:
769:
760:
758:
751:
745:
743:
736:
730:
728:
721:
715:
699:
693:
678:
669:
653:
644:
627:
618:
612:
601:
580:
574:
565:
559:
543:
532:
516:
501:
487:
408:Conflict of laws
306:Conflict of laws
279:
266:
257:
158:conflict of laws
138:Woodworkers case
123:
80:Court membership
33:
21:
20:
1087:
1086:
1082:
1081:
1080:
1078:
1077:
1076:
1032:
1031:
1025:
1011:, eds. (2015).
1003:
1002:
986:
982:
969:
965:
946:
942:
924:
917:
909:
905:
894:
887:
876:
874:
862:
861:
857:
849:
845:
835:
831:
821:
817:
807:
803:
793:
791:
790:on 5 March 2016
787:
776:
770:
763:
753:
752:
748:
738:
737:
733:
723:
722:
718:
700:
696:
679:
672:
654:
647:
628:
621:
613:
604:
581:
577:
566:
562:
544:
535:
517:
504:
488:
451:
446:
437:
410:
376:
367:Engineers' Case
350:Sawmillers case
346:
333:
331:A paper dispute
308:
299:
286:
275:
262:
253:
179:
170:Engineers' Case
142:Sawmillers case
17:
12:
11:
5:
1085:
1075:
1074:
1069:
1064:
1059:
1054:
1049:
1044:
1030:
1029:
1023:
1001:
1000:
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963:
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903:
885:
855:
843:
829:
815:
801:
761:
746:
731:
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694:
670:
645:
619:
602:
575:
560:
533:
502:
448:
447:
445:
442:
436:
435:Paper disputes
433:
423:Whybrow (No 1)
409:
406:
375:
372:
345:
342:
332:
329:
307:
304:
298:
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178:
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127:
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86:
85:Judges sitting
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81:
77:
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67:
63:
62:
59:
55:
54:
49:
48:Full case name
45:
44:
39:
35:
34:
26:
25:
15:
9:
6:
4:
3:
2:
1084:
1073:
1070:
1068:
1065:
1063:
1060:
1058:
1055:
1053:
1050:
1048:
1045:
1043:
1040:
1039:
1037:
1026:
1024:9781107043664
1020:
1016:
1015:
1010:
1005:
1004:
997:
993:
989:
984:
977:
973:
967:
961:420 at p 427.
960:
954:
950:
944:
937:
933:
929:
928:
922:
920:
912:
907:
900:
898:
892:
890:
873:
869:
865:
859:
852:
847:
841:
839:
833:
827:
825:
819:
813:
811:
805:
786:
782:
775:
768:
766:
756:
750:
741:
735:
726:
720:
713:
710:, (2006) 229
709:
705:
704:
698:
691:
688:, (1993) 178
687:
683:
677:
675:
667:
663:
659:
658:
652:
650:
642:
638:
634:
632:
626:
624:
616:
611:
609:
607:
599:
596:
592:
589:, (1976) 133
588:
584:
579:
572:
569:
564:
557:
553:
549:
548:
542:
540:
538:
530:
526:
522:
521:
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403:
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394:Federal Court
391:
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217:Alfred Deakin
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114:Case opinions
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68:
64:
60:
56:
53:
50:
46:
43:
40:
36:
32:
27:
22:
19:
1013:
994:, (1955) 92
987:
983:
971:
966:
943:
925:
906:
896:
875:. Retrieved
867:
858:
850:
846:
837:
832:
823:
818:
809:
804:
792:. Retrieved
785:the original
749:
734:
719:
701:
697:
681:
664:, (1956) 94
655:
629:
582:
578:
567:
563:
545:
518:
489:
438:
428:
422:
411:
386:
379:
377:
365:
349:
347:
338:
334:
326:
322:
317:
311:
309:
300:
291:
287:
243:
236:
233:Chris Watson
225:Labour Party
212:
210:
207:
192:
180:
168:
162:
155:
141:
137:
132:
131:
130:
119:
61:25 June 1909
51:
18:
1009:Williams, G
974:1988 (Cth)
877:14 November
853:1896 (Imp).
1036:Categories
1007:Dixon, R;
957:(1955) 29
899:1904 (Cth)
826:1899 (NSW)
444:References
414:Owen Dixon
400:, now the
392:, now the
177:Background
840:1894 (NZ)
812:1900 (SA)
354:precedent
344:Aftermath
66:Citations
949:Dixon CJ
319:invalid.
284:Decision
251:Mitchell
96:O'Connor
89:Griffith
794:8 March
714:1 at -.
595:Barwick
269:Blacket
140:or the
104:Higgins
58:Decided
1021:
260:Irvine
246:Arthur
235:. The
106:
102:&
100:Isaacs
990:
976:s 152
930:
788:(PDF)
777:(PDF)
706:
684:
660:
635:
585:
550:
523:
492:
273:Duffy
38:Court
1019:ISBN
879:2016
796:2017
680:see
668:254.
571:s 23
203:1894
201:and
199:1891
996:CLR
712:CLR
690:CLR
666:CLR
591:CLR
219:'s
120:2:2
1038::
951:.
934:,
918:^
888:^
870:.
866:.
779:.
764:^
673:^
648:^
639:,
622:^
605:^
598:CJ
554:,
536:^
531:..
527:,
505:^
496:,
452:^
404:.
280:.
277:KC
264:KC
255:KC
108:JJ
98:,
94:,
92:CJ
72:,
1027:.
955:.
938:.
901:.
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