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Friday, 27 August 1920


Mr GROOM (Darling DownsMinister for Works and Railways) (Minister for Works and Railways) . - The Deputy Leader of the Opposition (Mr. Charlton) has raised a very important question. I have already given some consideration to it, and have had framed a proposal which I think will fairly meet the position. The legal aspect of this question recently came before the High Court in the case of the Federated Gas Employees Union versus The Metropolitan Gas Company Limited (27 C.L.R., p. 72). It was also considered in the case of the Waterside Workers Federation, which came before the Full Court in Sydney quite recently. The decision in that case has not yet been published in the law reports, but I have obtained a note of it, and find that it meets one of the points raised by the honorable member, that where a dispute arises in an industry in respect to which there is no award in existence the award made by the Court on the filing of a plaint may be made retrospective to the date of the dispute. It was held by the Court that, if there has been no previous award, the Arbitration Court has power to make an award to have effect as from the date upon which the dispute existed, whether that be the date of the refusal of the demands of the employees or the filing of the plaint. That meets one of the points raised by my honorable friend. The next, which is exceedingly important, also came before the Court. It arises under section 28 of the principal Act, and relates to the question as to whether, where an award has expired, the Court can subsequently make an award retrospective to the date of its expiration. Under section 28 of the Act it is provided that -

The award shall be framed in such a manner as to best express the decision of the Court and to avoid unnecessary technicality, and shall, subject to any variation ordered by the Court, continue in force for a period to be specified in the award, not exceeding five years from the date of the award.

Under that provision the Court has power to specify the period during which an award shall run. Having made this enactment, the Legislature was confronted with the further question as to what provision should be made in the case where an award had been made for a specified period, and that period had elapsed. It accordingly provided in sub-section 2 of section 28 that -

After the expiration of the period so specified the award shall, unless the Court otherwise orders, continue in force until a new award lias been made.

It is clear that under' section 2S an award must stand for the period in respect of which it is made, but we have provided in this Bill that where the fundamental justice of the terms of an award is affected by abnormal circumstances the Court may vary any of those terms. The honorable member urges that where the period fixed for the continuance of an award has expired, but that award continues in operation by virtue of sub-section 2 of section 28 of the Act, the Court should have the further power to make its new award retrospective. I think that contention is just, and that some such power should be provided. The decision given by the High Court in the Waterside Workers Federation case, heard recently in Sydney, is vital. The Court held that where there has been a previous award the Arbitration Court has no power to make an award retrospective so long as the award is in force. Therefore, during the specified period of the award no fresh award can be made, nor, where the period specified in the award has expired, and the award is continuing in force by virtue of section 28, sub-section 2, of the Act, can the Court make a new award retrospective.

In other words, the Court held that there was no power under the Act to make any retrospective award. To my mind, that is too rigid, and is unjust. The Court went on to say, however, that in such cases the operation of an award could be determined by an order of the Arbitration Court; it could order that the award cease, and make a fresh award from the date on which it expired. I now propose, with the approval of the Committee, to insert an amendment in the Bill to the effect that the Court shall have power to make an award retrospective to the date of the filing of the plaint, or a date when the Court otherwise gets cognisance of a dispute. That, I think, is just.


Mr RICHARD FOSTER (WAKEFIELD, SOUTH AUSTRALIA) - A retrospective award might go hack twelve months.


Mr GROOM - If a plaint has been filed, but there has been some failure of the Court to proceed with it, which has led to delay, the men should not therefore be penalized.


Mr Richard Foster - But what about a contractor?


Mr GROOM - A contractor will know from the date of the filing of a plaint what his liabilities may be.


Mr Richard Foster - But what about the contractor who had entered into a contract before the filing of a plaint?


Mr GROOM - He will be in the same position as he is in now.


Mr Richard Foster - Wicked injustice has happened under the law as it stands.


Mr GROOM - Every person who enters into a contract now knows that he is living in a country where awards affecting wages, hours, and conditions of employment generally may be made from time to time by the Arbitration Court, and tenderers usually bear that fact in mind. In some instances, owing to the uncertainty that exists, there have been refusals to enter into contracts, and again, it is sometimes provided in private contracts that, should an award increase the labour costs, the contractor may add the increase to his price. What we are concerned with is fair dealing towards all parties. I propose to make awards retrospective to the date of the filing of the plaint, not to any earlier period.


Mr Maxwell - Where would your amendment come in?


Mr GROOM - I propose to add to clause 10 a proviso in these terms -

Provided that where in pursuance of this sub-section an award has continued in force after the expiration of the period specified in the award, any award made by the Court for the settlement of a new industrial dispute between the parties may, if the Court so orders, be made retrospective to a date not earlier than the date upon which the Court first had cognisance of that dispute.

The Court gets cognisance of a dispute under section 19.

Mr. BrennanAre you dealing now with cases in which there have been no previous awards?


Mr GROOM - N - No; with cases in which there have been awards. Where there have been no awards, an award can bo. made retrospective to the date of the dispute.


Mr Richard Foster - Would it not be better to arrange for a quicker despatch of business by the Court?


Mr GROOM - We are doing that : by instituting tribunals under the Industrial Peace Bill, by increasing the number of Deputy-Presidents of the Arbitration Court, and by handing over to a special Arbitrator all Public Service disputes.


Mr Corser - How would a manufacturer, the price of whose goods was fixed by a Price Fixing Board, be able to recover any loss caused to him by the making of a labour award retrospective?


Mr GROOM - Price-fixing is a matter for State tribunals, and one in which « we cannot interfere. I presume that a price-fixing authority, finding that labour conditions had been changed, would vary the price. Price-fixing is based presumably upon the cost of production, into which the cost of labour enters. The position which I ask the Committee to consider is this : A body of men may for five year3 be bound by an award, and loyally observe it, but, becoming. dissatisfied because of a change of condition?, they may ask for higher wages. The em1)lOver may reply that he will not pay higher wages. They may then, immediately the five-year period terminates, file a. plaint in the Arbitration Court. We do not say that every award made by _ the Arbitration Court must be retrospective; but if in the peculiar circumstances of a case the Court is of opinion that an award should be retrospective, we give the Court power to make it so.


Mr Richard Foster - Will the condition apply both ways? There may be a big drop in the cost of living. Would the Court make an award retrospective in that case?


Mr GROOM - The Court may make any award retrospective if it thinks fit.


Mr Brennan - Will it have power to order the collection of what has been already paid?


Mr GROOM - That is another matter. I think that, with the generosity that characterizes it, the employing class would, under the circumstances that the honorable member for Wakefield has in mind, remember the maxim de minimis non curat lex.


Mr Charlton - Do I understand that the Court will have the power, in regard to any new claim, to make an award retrospective?


Mr GROOM - Yes; in the case where no previous award has been given, an award may be made retrospective to the day of the dispute.

Mi-. Charlton - And where an award has expired and a fresh claim has been made, can the new award be made retrospective?


Mr GROOM - Yes ; to the date on which the Court has cognisance of the dispute, the simplest instance of which is the date of the filing of a plaint.


Mr CHARLTON - Can an award be made retrospective to that date ?


Mr GROOM - Yes. Of course, if a body of men delayed to file a plaint after their original award had expired, they would have to suffer the consequences of the delay.







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