Australian Tramway and Motor Omnibus Employees Association v Commissioner for Road Transport and Tramways (NSW) [1935] HCA 77

H.C. or A. Industrial Arbitration (Cth.)—State tramway employees—Award—Invalid varia

1935. ed SypNEy,

Oct. 23-25 ; Dec. 17.

Latham C.5., , Starke, mn, Evatt and MeTiernan

THE AUSTRALIAN TRAMWAY AND MOTOR}

THE COMMISSIONER FOR ROAD TRANSPORT }

HIGH COURT |

[HIGH COURT OF AUSTRALIA.]

OMNIBUS EMPLOYEES ASSOCIATION

AND

AND TRAMWAYS (NEW SOUTH WaLEs) f ®

—Further variation by Commonwealth Court of Conciliation and Arbitratic Original intention effectuated—Validity—Variation of award after expiration period specified therein—Jurisdiction of Court—Retrospective operation of tion—Commonuealth Conciliation and Arbitration Act 1904-1934 (No. 13 of 1904—No. 54 of 1934), secs. 28 (2), (3), 38 (0), 388.

Held, by Rich, Evatt and McTiernan JJ. (Starke J. dissenting), that 28 (8) of the Commonwealth Conciliation and Arbitration Act 1904-1934 constitutes the sole measure of the jurisdiction of the Commonwealth Court of Conciliation and Arbitration to alter the terms of an award during the period of its continuance in force under sec. 28 (2) of the Act ; but, by Dizon J., that that is so only in respect of the original terms of the award.

Held, by Latham C.5., Rich, Starke, Evatt and McTiernan JJ., that 28 (3) of the Commonwealth Conciliation and Arbitration Act 1904-1934 d not preclude the Court from altering the terms of the award so that alteration shall operate from a date prior to the date of alteration; and, Dixon J., that sec. 38 (0) of the Commonwealth Conciliation and Arbit

alteration made pursuant to sec. 28 (3) of the Act.

An award made by the Commonwealth Court of Conciliation and Arbitrat in 1927 was expressed to continue for three years. Upon the expiration 5 that period the award was continued in force by virtue of see. 28 (2) of the Commonwealth Conciliation and Arbitration Act. Several alterations of th terms of the award were subsequently made. One, dated 17th April, introduced into the award a new clause, the effect of which, so far as con