the manager is not the employer and no award can be made against the company as it is not a party. FEDERATED LIQUOR AND ALLIED TRADES EMPLOYEES' UNION OF AUSTRALASIA v. ASHTON, W. 17 C.A.R. 863.

[Commonwealth.]

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Industrial dispute Work unsuitable for women-Atmospherical conditions-Piecework-Right to police award-Cost of living-Adjustment of wages. The organization claimed higher rates of pay for persons engaged in manufacturing certain goods and the prohibition of the employment of females in such manufacture on the grounds, respectively, that the importation of the goods is prohibited and that such employment of females endangers their morals. Held, the Court cannot base rates of pay on the fact that the goods cannot be legally imported, or on the fact that the making of them may endanger the morals of the employees making the goods. Both the grounds mentioned are matters for consideration by the State Government and State Parliament. The Court is not justified in fixing rates of pay except on the value of the work done and the skill required. On the evidence as to the work and the specially objectionable condition thereof, adult rate fixed for men prescribed for all employees for the work in question. If health is affected by conditions of employment the Court takes into consideration in shortening hours, not in increasing wages to encourage employees to remain in unhealthy employment. FEDERATED RUBBER WORKERS OF AUSTRALIA v. DUNLOP RUBBER COMPANY OF AUSTRALASIA LIMITED, 16 C.A.R. 78 [Commonwealth.]

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Industrial dispute Cost of living-Hours, rates and conditions-Overtime Holidays— Rations Standard hours-State of industryPiece-work rates-Basic wage.-The Court has since 1911 fixed piece-work rates for shearers on (1) the basic wage for the time being; (2) an additional rate for skill; (3) an amount for loss of time on the expedition (that is for the time the shearer loses going to his first shed-the time lost between the different sheds and the time lost in returning from his last shed to his home); (4) an amount for the cost of travelling expenses, fares, etc. AUSTRALIAN WORKERS' UNION v. PASTORALISTS' FEDERAL COUNCIL OF AUSTRALIA, 16 C.A.R. 375. [Commonwealth.]

And see 3. Award.

5. Industrial Dispute.

6. Jurisdiction.

5. INDUSTRIAL DISPUTE.

Industrial dispute Hours and conditionsState instrumentalities-Local authorities.Local authorities engaged in industrial pursuits and rendering services to the public for valuable consideration are subject to the jurisdiction of the Court. HEALTH INSPECTORS' ASSOCIATION OF AUSTRALIA v. LORD

MAYOR, ALDERMEN, COUNCILLORS AND CITIZENS OF THE CITY OF MELBOURNE, 16 C.A.R. 978. [Commonwealth.]

Application for variation of award-State awards. It is the duty of the Court to promote the continuance of industrial peace under State laws if such laws are available. AUSTRALIAN BUILDERS' LABOURERS' FEDERATION v. ARCHER, 16 C.A.R. 1067. [Commonwealth.]

Meaning of "industrial dispute "'-Dispute between employer carrying on business of banking of insurance and employeesPowers or Commonwealth Parliament. Held, by Isaacs, Higgins, Powers, Rich and Starke JJ. (Knox C.J. and Gavan Duffy, J. dissenting), that a dispute between employers who carry on the business of banking or the business of insurance and their employees engaged in the business as to the wages to be paid and the conditions of employment to be observed to or with respect to such employees is an industrial dispute " within the meaning of s. 51 (XXXV.) of the constitution and of the Commonwealth Conciliation and Arbitration Act 1904-1921. AUSTRALIAN INSURANCE STAFFS' FEDERATION AND BANK OFFICIALS' ASSOCIATION. v. ACCIDENT UNDERWRITERS' ASSOCIATION AND BANK OF AUSTRALASIA, 33 C.L.R. 517; 30 A.L.R. 122. [High Court.]

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Judiciary Act, s. 63-Service and citation of States State Act reducing salaries— Award made against respondents properly served-Application for preference refused.In arbitration proceedings against the States s. 63 of the Judiciary Act must be complied with. AUSTRALASIAN INSTITUTE OF MARINE AND POWER ENGINEERS v. SYDNEY HARBOUR TRUST COMMISSIONERS, 17 C.A.R. 955. [Commonwealth.]

And see 1. Agreement. 3. Award.

4. Hours and Wages.

6. JURISDICTION.

Constitutional law-Industrial dispute Whether existing-Summons.-After an award upon a reference has been made by the Commonwealth Court of Conciliation and Arbitration, neither the High Court nor a Justice thereof has jurisdiction upon a summons, under s. 21AA of the "Conciliation and Arbitration Act 1904-1920," to determine whether an industrial dispute existed as to any matters contained in the award. Per Starke, J.-The Court or Justice has jurisdiction under such a summons to determine whether the Court of Conciliation and Arbitration had jurisdiction to make an award upon certain specific matters as being within the ambit of the dispute or warranted by s. 38B of the Act. INCE BROS. v. FEDERATED CLOTHING AND ALLIED TRADES UNION. CAMBRIDGE MANUFACTURING CO. PTY. LTD. v. SAME, 33 A.L.R. 310. [High Court.]

And see 3. Award.

7.-ORGANIZATION.

Organization of employees-Breach of award-Aiding "job control "-Responsibilty of organization for acts of its branch-Construction of rules.-The rules of a union of employees registered as an organization under the Commonwealth Conciliation and Arbitration Act provided (inter alia) for the existence of branches of the union; that the union should be governed by the members of the union in meeting assembled, and that the committee of management (which consisted of the general president and the general secretary of the union, together with the secretary of each branch of the union) should carry out all instructions given by resolution of the members of the union in such meetings; that the committee of management should have only such powers as were delegated to it by the resolutions of the members of the union in meeting assembled; that, in the event of a dispute occurring as to wages or working conditions in any State, the members of the branch in such State might take such steps as would lead to an immediate settlement of the dispute, but, if there should be any likelihood of the dispute extending beyond the limits of the State, the branch officials should immediately notify the general president and the general secretary of the union, and that those two officials should take such steps as the necessity of the case required. By an award of the Commonwealth Court of Conciliation and Arbitration it was provided that the union should not during the term of the award encourage aid job control.” Held, that acts done by members of the union at a meeting of a branch of the union, or by the secretary of a branch, which encouraged or aided job control" could not under the rules be attributed to the union so as to make it liable for a breach of the award. Quaere,

or

66

as to what would constitute "" job control." COMMONWEALTH STEAMSHIP OWNERS' ASSOCIATION v. FEDERATED SEAMEN'S UNION

66

Industrial dispute-Registration of organization Classes of Carpenters and JoinersHours Wages-Allowances-Height work.Such words as Not otherwise provided for in existing organizations" should not be used in any document to which the Court has to refer to ascertain the industry in which the members of an association are engaged. The work of the Court is to award fair wages and conditions according to definite and carefully considered principles, and the Court has performed its task when it has made provision for a fair basic wage, a fair margin for skill, fair hours, and fair conditions.

There

Appeal Powers of Court under s. 49 (3) of Act of 1912-Appeals from District Court Costs. The Court has no jurisdiction to order the payment of costs in the case of an appeal brought in terms of s. 49 (3) of Act No. 17 of of 1912 from a District Court. Upon an appeal brought under s. 49 (3) of the Industrial Arbitration Act 1912, the Court is not authorised to take the case up and determine it, but should remit the case to the Court of first instance with an intimation of the Court's opinion upon the questions raised and decided, in order that the Court of first instance may have the material to make its proceedings accord with the result of the appeal. Leonard v. Yallaroi Shire Council (1919 A.R. 155) approved. DOWNIE v. WILSON; PSALTIS & MARGETIS v. ARONEY; BUSK v. ILUKA CO-OPERATIVE ICE Co. LTD., 1924 A.R. 17. [New South Wales.]

Appeal-Right of senior Judge to amend notice of appeal-Power to extend time for filing. An employees' union, having within the prescribed time filed a notice of motion for leave to appeal against an award made by a Judge upon certain grounds, at the hearing of such motion applied for other grounds to be added. The senior Judge, in adding such other grounds, stated that he did so in the exercise of whatever powers he had either to amend the notice of appeal or to extend the time for filing such notice, but expressly reserved to the respondents their full rights to object to this course. At the hearing of the appeal, preliminary objection was taken by respondents that no notice was given of any intention to appeal in respect of the additional grounds within the time prescribed by the regulations, and that notice of appeal having been given, there was no power to

A. NEW SOUTH WALES.

Apprentice-Payment of wages during temporary absence through illness-Custom or usage Cabinet makers (State) AwardAppeal from Court of Petty Sessions.— The respondent, an apprentice in the appellant's service, was not paid the rate of wages prescribed in the Cabinet Makers' (State) Award during an absence through illness extending to six weeks less one day, and obtained judgment against appellant for such wages at the Court of Petty Sessions. Against that judgment the employer appealed, on the ground (inter alia) that the award gave no right to recover wages in such circumstances, and that such right (if any) existed under the apprenticeship agreement which defined the rights of the parties at com. mon law. Appellant also contended that the onus was on the plaintiff at the Court of Petty Petty Sessions to prove that the custom or usage of the industry was to pay wages to employees during temporary absence through illness, and that he had not done so.

Held,

that (1) the award having provided for service for a week or a longer period at a weekly wage, respondent was entitled to some wages in respect of the period of absence, notwithstanding the apprenticeship agreement. Dictum of Rolin, J. in Quill v. Brunton No. 2 (1921 A.R. 44 at p. 45) applied; (2) as an issue in respect of length of the period of absence for which payment was claimed was not submitted to the Court of Petty Sessions, it could not be raised upon appeal. The wages recovered should be limited to a "short" period of absence as explained in Dunleavy v. Grimley ([1912] A.R. 45); (3) the onus of proving the issue raised by the defence of custom or usage of an industry was on the defendant. BEARD, WATSON LTD. v. HICKEY, 1924 A.R. 11. [New South Wales.]

Compare cases, cols. 228, 232.

B. WESTERN AUSTRALIA. Contract-Indentures of apprenticeshipEffect of subsequent award of Court of Arbitration on indentures entered into under prior award-Industrial Arbitration Act 1912 ss. 35, 38, 40, 60, 78, 79, 82, 85 and 99.By an award of the court of arbitration made the 30th July, 1919, certain rates of pay were fixed for apprentices. The award

further determined the conditions under which apprentices might be taken, the number of apprentices that could be taken in proportion to journeymen employed, and it provided for the registration of all apprentices whether taken before or after the date of the award, and it declared that a term of five years should be the period of apprenticeship. The currency of the award was fixed as for three years, subject to a proviso enabling the court to alter or amend the award at any time after the expiration of twelve months from the date of the award on the application of any party or person affected by its provisions. On 30th January, 1920, appellants entered into indentures of apprenticeship with one F.H.M. and his son W.M. the apprentice. The terms of the indenture were in all respects in conformity with the then existing award. On 8th June, 1920, by an order of the court of arbitration (such order being also referred to as awards numbers 2 and 4 of 1920) it was declared (inter alia) that the rates of pay for apprentices should be 17 per cent higher than the rates then being paid under existing agreements of apprenticeship registered in the court of arbitration. The appellants having continued to pay the apprentice, W.M., at the rates specified in his indentures of apprenticeship were charged before the court of arbitration with a breach of the order of the court of 8th June, 1920, and were convicted and fined. Held, on appeal, that the provisions as to apprentices contained in the order of 8th June, 1920, were only intended to apply to contracts of apprenticeship made after such order came into operation and that the appeal should be allowed. Brown and Burns v. Hubber ([1921] 23 W.A.L.R. 52) followed. WHITE & Co. v. COASTAL DISTRICT COMMITTEE AMALGAMATED SOC. OF ENGINEERS, 1923 W.A.L.R. 88. [Western Australia.]

C. NEW ZEALAND.

Award-Apprentices-Alleged failure to pay wages for holidays.-Defendants are clothing manufacturers, and on the Friday before Christmas, 1923, a requisition signed by a large number of their apprentices and one of the foremen was placed before them, for permission to take as holidays the days between Saturday, 22nd December and Monday, 7th January, 1924. The requisition was placed before S. one of the managers but was not agreed to and on the same day a foreman was instructed to put up near the pay office a notice that the workroom would be closed on statutory holidays. The notice was put up early on the Friday afternoon and could have been seen and read by all in the workOn a claim for a penalty for breach of the award in failing to pay the apprentices wages for the period between 22nd December, 1923, and 11th January, 1924, held, that the facts submitted failed to show a breach of the award. BAILEY V. SAMUELS AND KELLY LIMITED, 19 M.C.R. 120. [New Zealand.]

room.

3.-AWARD.

A. NEW SOUTH WALES.

to

Application for an award-Change of conditions of employment.-Upon the hearing of an application for a new award in relation to the industries and callings in respect of which the Government Railways and Tramways (Engineers, etc.) Board is constituted, the employees' unions having failed establish that the various classes of tradesmen were underpaid, or that their conditions of employment had altered, the Court reenacted the existing award subject to the amendments necessary to be made to give effect to the variation of the living wage declared by the Board of Trade. Conditions of employment of oxy-acetylene welders and running-shed men specially considered. In re GOVERNMENT RAILWAYS & TRAMWAYS (ENGINEERS, ETC.) BOARD, 1923 A.R. 161. [New South Wales.]

BLACK v. PARKINSON (AUSTRALIA) LTD., 1924 A.R. 49. [New South Wales.]

B. QUEENSLAND.

Industrial award-Worker-Local authorities award-Bridge, wharf and pier Construction award.-HAMMOND v. ELSTOB 1924, Q.W.N. 35. [Queensland.]

C. WESTERN AUSTRALIA.

Awards of Federal Arbitration Court and of State Arbitration Court-Whether inconsistent-Under which award workman entitled to be paid-Conciliation and Arbitration Act 1904-1920 (Federal) ss. 29, 30,-Industrial Arbitration Act 1912, ss. 78, 126-Commonwealth Constitution Act, s. 51 (35) and 109.– An award of the State Arbitration Court, providing for a contract of daily service and certain rates of pay thereunder is, as to those provisions, inconsistent with an award of the Federal Arbitration Court applying to the same parties providing for a contract of weekly service and rates of pay thereunder differing from and less than the rates prescribed under the State award, and by s. 30 of the Commonwealth Conciliation Arbitration Act is, to the extent of the inconsistency, invalid; COTTRILL v. IVANHOE GOLD CORPORATION LIMITED; STOREY V. BOULDER PERSEVERANCE GOLD MINING CO. LTD., 1923 W.A.L.R. [Western Australia.]

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Interpretation-Principles applicable to construction of awards-Electrical fitter-Woman employed on work governed by an award prescribing wage rates specifically for menWages of males and femalies in skilled occupations.-The respondent, having employed a woman to perform part of the work included in the term electrical fitting," in the Electricians, etc. (State) award, was charged with not having paid her the wages prescribed for an electrical fitter. The award defined electrical fitters as men who have been employed for five years in the work-shop manufacturing," etc. The complaint having been dismissed by the Chief Industrial Magistrate, the complainant appealed. Held, that as the employee had not been employed for five years in the workshop as provided in the definition of "electrical fitters contained in the award, she was not entitled to the rate of wages prescribed for an electrical fitter. Principles laid down in Sloan v. Llewellyn (1919 A.R. 56) applied. Decision in Adams v. Landon (1917 A.R. 255) discussed. Quaere as to whether an award providing specifically for the conditions of employment of men, should be read as applying to women. Effect of s. 42A of Act No. 17 of 1912, which provides for the same margin above the respective living wages in the case of males and females in skilled occupations, upon an award prescribing the same rate for men and women, considered.

and

82.

Interpretation of award-Powers of court of arbitration-Prohibition.-An award of the court of arbitration of Western Australia regulating the mining industry and numbered 7 of 1920, prescribed certain rates of pay and provided that a fortnight's holiday on full pay should be granted once in each year to every worker, and that should the employment be terminated before the holiday was due the worker should, after the completion of one month's service be entitled to one day's pay in lieu of holidays for every month and portion of a month of service. By a further award of the same court, numbered 1 and 5 of 1922, regulating the mining industry, a provision for holidays was made in substantially the same terms, but the rates of pay were slightly reduced. The latter award came into force as from the 15th June, 1922. The question having arisen as to whether holiday pay for the time worked between 1st January, 1922, and 15th June, 1922, should be paid under the provisions of the award number 7 of 1920 or under the provisions of the award Nos. 1 and 5 of 1922, the matter was submitted to the court of arbitration for interpretation. That court directed that in calculating the amount of holiday pay due to a worker for the time worked between 1st January, 1922, and 15th June, 1922, such holiday pay should be computed at the rates prescribed by the award No. 7 of 1920. Held, that the order of the court of arbitration was within its jurisdiction. The legislature having, by ss. 76, 79 and 85 of the Arbitration Act 1912, prescribed the duty of the court in framing

the award, entrusted it with the interpretation of the award when made, limiting, by s. 85, the power so conferred to ensure that amendments made by the court should in no way be inconsistent with the true intent and meaning of the original award. In order to carry out these provisions, it is necessary that the true intent and meaning of the original award must be first ascertained by the court, and in the event of there being, in the opinion of the court, any doubt as to that meaning, the court is empowered to give what, in its opinion, is the true interpretation of the award upon the question asked and to make what it considers is the necessary amendment thereon. In the exercise of this duty the court of arbitration is clearly

acting within its powers. The writ of prohibition is not granted to correct erroneous decisions of an inferior court, but only to prevent the exercise of an excess of jurisdiction. It is immaterial to consider whether the interpretation adopted by the arbitration court accords with the view with which the superior court might consider the right view. In re GREAT BOULDER PROPRIETARY GOLD MINES LTD. & In re AWARD Nos. 1 & 5 OF 1922 OF THE COURT OF ARBITRATION, 1923 W.A.L.R. 144. [Western Australia.]

See also 11c. Strike.

D. NEW ZEALAND.

Award-Breach-Worker employed continuously for six months-Failure to give leave of absence.-Sect. 23 of the Marine Cooks and Stewards' Award provides that every worker who has been continuously employed for twelve months shall be allowed fourteen days' holiday on full pay within the following six months, and that if a worker serves continuously for six months or more but not for one year he shall be allowed leave of absence on full pay within the following six months for time proportionate to his service. A steward was employed by defendant from 31st August, 1922, to 11th September working on the " Marama," which was then out of commission. On the 11th September he was put on the Maun. ganui and was employed on her until the 2nd March, 1923, when he left the employ. ment of his own will. Held, that the steward was continuously in defendant's employ from 31st August, 1922, to the 2nd March, 1923, and as he had not been allowed leave of absence as provided by the said s. 23, defendant had committed a breach of the award. INSPECTOR OF AWARDS v. UNION STEAMSHIP Co. LTD., 19 M.C.R. 8. [New Zealand.]

Award-Breach-Deductions for Anzac Day-Whether permitted by award-Limitation of actions.-On a claim for the amount of two days' wages deducted for Anzac Day, 1922 and 1923 when defendant's works were closed and no work done and where the award (cl. 9 (b)) provided that "holidays not worked shall not be paid for." Held, that the clause permitted the deduction of

which plaintiff complained, but that in any event plaintiff must fail, because if he was a weekly worker his action under the Industrial Conciliation and Arbitration Act 1908, should have been brought within three months and if he was a daily worker he was not entitled to payment for Anzac Day. HODDER v. COLONIAL SUGAR CO. LTD., 19 M.C.R. 87. [New Zealand.]

Award-Breach-Action for recovery of penalty-Whether necessary steps takenExclusive jurisdiction of Magistrate's Court.Plaintiff union had brought action against defendant company for penalties for breaches of the Seamen's and Firemen's Award, and a case was stated for the opinion of the Arbitration Court. The case submitted contained a statement that the provisions of s. 14 of the Amending Act 1908, which makes penalties for breach of and award recoverable in the Magistrate's Court and not otherwise had been carried out. The Arbitration Court

was of opinion that the facts constituted a breach and the case was referred back to the Magistrate's Court to be dealt with. Defendant alleging non-compliance with the requirements of s. 11 of the Industrial Conciliation and Arbitration Amendment Act 1922. Held, that s. 11 did not affect s. 14 of the Amendment Act 1908, that therefore the necessary steps had been taken in bringing the action and that the Magistrate's Court had exclusive jurisdiction in actions to recover penalties for breaches of an award. Judgment for plaintiff. FEDERATED SEAMEN'S UNION v. UNION STEAMSHIP COMPANY LIMITED, 19 M.C.R. 91. [New Zealand.]

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Award-Breach-" No boy shall keep night watch or attend gangway -Boy promoted to ordinary seaman and employed on Sunday— Formal engagement as ordinary seaman on the Monday-Whether a breach. A young man who had been employed as a boy on the Arahura was notified when the vessel was at Gisborne that he would be promoted to ordinary seaman when the vessel arrived at Auckland. The vessel reached Auckland on Sunday the 23rd December and the young man was ordered to keep night watch and attend the gangway from 8 p.m. till 12 midnight. The first officer's log stated that he was promoted and put on to this duty, and the ship's records contain his receipt for 6s. the payment due to him as an ordinary seaman for the broken watch. On Monday the 24th December when the shipping office opened the young man was formally discharged as a boy and re-engaged as ordinary seaman. For the plaintiff it was contended that he must be deemed to have been a boy on the 23rd because he was formally discharged as a boy and re-engaged as an ordinary seaman on the 24th and his wages as a seaman did not begin till the 24th and that therefore a boy had been employed to keep night watch and attend the gangway in breach of the award. Held, that he was in fact promoted on the 23rd and that the breach alleged had not been committed. AUCKLAND FEDERATED SEAMEN'S UNION v.