OF AUSTRALIA. 589 in my opinion, a case for the application of the doctrine of the H- ©. oF 4- chance. 1933. i YS JosEPH Judgment of the Swpreme Court and of the gv ow County Court set aside and a new trial & Anew Pry. Lrp. ordered. —— citor for the appellant, Dudley A. T'regent. icitors for the respondent, Bullen & Burt. H. D. W. [HIGH COURT OF AUSTRALIA.] AUSTRALIAN WORKERS' UNION . APPLICANT ; AND COMMONWEALTH RAILWAYS COM- a } ResponveEnt. dustrial Arbitration—* Basic wage "—Conditions precedent to alteration—Award H.C, or A. of single Judge—Commonwealth Railways—Employees—Jurisdiction of Common- 1933, wealth Court of Conciliation and Arbitration—Commonwealth Conciliation and net Arbitration Act 1904-1930 (No. 13 of 1904—No. 43 of 1930), sec. 18a (4) (i) (6) MELBOURNE, Arbitration (Public Service) Act 1911 (No. 11 of 1911)—Arbitration (Public March 13, 14. fervice) Act 1920 (No. 28 of 1920), sec. 11. Scores _ An award of the Commonwealth Court of Conciliation and Arbitration fixed 4pril 21. minimum wage for employees of the Commonwealth Railways Commissioner. ich, Starke, The amount of the wage was computed by reference to an index figure for .P\itinignatn Augusta in a statistical table relating to the cost of living, and 3. by the addition of two sums of money. The award also provided for the justment of this amount according to the variations of an index figure for n towns in South Australia. By an award made in a dispute which quently arose, a single Judge of the Court awarded that the minimum should be determined, for employees residing in a defined area, by relation H.C. or A. 1933. we AUSTRALIAN Workers' Union v% Common- WEALTH Raiwways Commis. SIONER. HIGH COURT [19 to a composite index figure, to be ascertained by taking the index figure Port Augusta and also taking into account the prices of certain foodstuffs the railway stores, and, for the other employees, by relation to the in figure for Kalgoorlie. The award provided for the addition of one, but not the other, of the sums of money which had been specified in the prior award. 'The wage thus prescribed was less than that under the prior award. ; Held that, by reason of sec. 184 (4) (i) (b) of the Commonwealth Conciliation and Arbitration Act 1904-1930, a single Judge of the Court had no jurisdiction — to make the latter award, because (by the whole Court) it altered the basic wage, and (by Starke J.) it also altered the principles on which the basic wage was computed. The meaning, in sec. 184 (4) (i) (6) of the Commonwealth Conciliation and Arbitration Act, of the expression " basic wage " considered, Per Starke J.: Sec. 11 of the Arbitration (Public Service) Act 1920 does not oust the jurisdiction of the Commonwealth Court of Conciliation and Arbitration to deal with an industrial dispute with which, apart from the Arbitration (Public Service) Act 1911, the Court would have had jurisdiction to deal under the Commonwealth Conciliation and Arbitration Act. Summons under sec. 2144 of the Commonwealth Conciliation and Arbitration Act. In 1924, Powers J., as President of the Commonwealth Court of Conciliation and Arbitration, made an award in a dispute as to the conditions of employment of persons employed by the Common- wealth Railways Commissioner on the Trans-Australian Railway (Australian Workers' Union v. Commonwealth Railways Commis- sioner (1) ). The award fixed, for adult workers, a minimum wage, which was arrived at by adopting the index figure for Port Augusta in a statistical table relating to the cost of living and by adding to _ the sum so ascertained a sum of 3s. a week and a further sum of 1s. 3d. a day. The wage so fixed was 14s. per day, but the award provided for the adjustment of that sum in accordance with an index figure based on the cost of living in four towns in South Australia. In 1927, Sir John Quick, Deputy President, made a— further award (Australian Workers' Union v. Commonwealth Railways Commissioner (2) ), whereby he fixed the minimum wage at 14s. 10d. per day. In making this award, the Deputy President followed the method by which Powers J. had fixed the minimum wage and provided for the continuance of the method of adjustment adopted (1) (1924) 19 C.A.R. 304. (2) (1927) 24 C.A.R. 678. L.R.] OF AUSTRALIA. y Powers J. In 1932 a further dispute came before Judge Drake- ckman. At that time the minimum wage as adjusted in accord- e with the previous award was 12s. 4d. per day. His Honor e an award in which he provided for the ascertainment of the minimum wage in the manner which appears in the following passage m his judgment :—" After very careful consideration I have e to the conclusion that adhering to the usual principles adopted the Court in determining the base wage necessitates the rejection the claims of all concerned together with the unions' suggestion aloading. . . . A portion of the railway servants resident he rentals of these houses are fixed on a percentage basis in relation to the capital cost involved, and are consequently rigid and do not md to the influences ordinarily determining rents. I have come the conclusion therefore that they should not be included as a h railways stores supply practically the whole of the require- s of the employees along the railway line as to bread groceries d dairy produce. The price list of the railway stores is not arily taken in with other sources of information in fixing the figure for Port Augusta. This is probably due to the fact only railway servants have dealings with that store. I have e to the conclusion that the railway stores prices are a factor should be used in determining a base wage for this industry. ithe whole, I have (except as to employees resident in the vicinity Kalgoorlie) come to the conclusion that the principle of the Court [be adhered to and substantial justice done to all concerned by the base wage in relation to a composite index figure arrived duce together with all other factors usually included in the Port Augusta index figure. I have come to the conclusion (with erable reluctance, having in mind the consequent reduction) i there is no possible justification for adding a loading to the 8 So arrived at with a view to retaining, as was urged by the 8, the present base wage. With regard to the base wage for H. C. or A. 1933. pears AUSTRALIAN Workers' Union v. Common- WEALTH Ratuways Commas- SIONER. H.C. or A. 1933. Ww AUSTRALIAN Workers' Union v ComMon- WEALTH Ratways Commis- SIONER. HIGH COURT (1933, employees. While a branch of the railway stores is situate at Parkeston, the fact is that the only housing accommodation available necessitates their living in Kalgoorlie and the distance between the two centres compels most of them to do the major portion of their shopping in Kalgoorlie itself. In addition these employees are compelled to procure accommodation at Kalgoorlie prices for house rents which are much in excess of those in fact paid by Common- — wealth railway employees elsewhere. In the circumstances I have _ decided to adopt the Kalgoorlie index figure for the purpose of ascertaining the base wage of those employees who reside west of the 1,021 mile post of the East-West Railway. Mr. Murphy (for — the Australian Workers Union) in his final address took the objection that it was not competent for a single Judge to interfere with the existing 'basic wage' even to the extent of bringing it into line with the ordinary practices of the Court. I do not think his objection was well founded. What has been provided in the award with respect to the basic wage is in my view within the jurisdiction of a single Judge and follows the usual practices of the Court." As a result of this method of computation, the minimum wage was fixed | (subject, until otherwise ordered, to a reduction of ten per cent) at 12s. 1d. per day for those employees who resided west of the 1,021 mile post of the Trans-Australian Railway, and at lls. per day for other employees. The Australian Workers Union took out a summons under sec. 2144 of the Commonwealth Conciliation and Arbitration Act 1904- 1930 for the determination of the following questions :— : (1) Whether the award made by Judge Drake-Brockman was an award altering the basic wage. (2) Whether the said award was an award altering the principles on which the basic wage was computed. (3) If the answer to question 1 or question 2 was in the affirma- — tive, whether his Honor had jurisdiction to make the said _ award. H. S. Nicholas, for the applicant. The question is whether Judge Drake-Brockman acted within his jurisdiction under sec. 184 (4) in in altering the basic wage. The principle alluded to in the section is E 9 C.L.R.] OF AUSTRALIA. that laid down by Higgins J. when he first became President of the In this case the three Judges of the Arbitration Court laid down a basic wage, and Judge Drake-Brockman took the basic wage laid down by Powers J. Judge Drake-Brockman had no power to uke the alteration he made, because of the provisions of sec. 184 (i) (6). There is a difference between altering the basic wage altering the principles on which it is computed. Sec. 18a (4) leals with the jurisdiction of the Court in settling disputes. The sions of sec. 184 have not been followed. There is no basic e unless you find it in an award (Federated Engine Drivers Firemen's Association of Australasia v. Albany Bell Ltd. (1): stralian Workers' Union v. Commonwealth Railways Commis- (2)). Other additions, including the '" Powers 3s.," were ded. Elements other than the statisticien's figures are to be taken into account. The statistician's figures exclude clothing, gh clothing is considered in fixing the basic wage. If a single alters the basic wage, sec. 18a (4) is transgressed. In dealing ith the basic wage it is not relevant to consider whether the industry survive (Australian Workers' Union v. Abramowski (The Fruit- ers' Case) (3) ). The Legislature added the words in sec. 18a (4) 'ing to the alteration of an award to prevent altering details as to Gd. Immediately after that, the Legislature repealed sec. 25D and enacted sec. 18a (4). {Evarr J. referred to Graziers' Association of New South Wales v. Australian Workers' Union (4). "The amendment of the Act depended more on Australian Workers Union v. Abramowski (5) (Anderson on Fixation of Wages in Australia, 337). The " Powers 3s." was added to the Higgins standard to make wage more closely correspond to that standard. It was put on of the lag in wage adjustment due to the fact that the n's figures were compiled once a year only (Federated Engine pay 15 C.A.R. 704. (4) (1930) 29 C.A.R. 261, at pp. 272, 2) (1924) 19 C.A.R. at pp. 311, 312. 278. (1930) 28 C:A.R. 597, at p. 603. (5) (1930) 28 C.A.R. 597. VOL XLIX, 40 H.C. oF A. 1933. Ww AvsTRaLtas Workers' U v Common- WEALTH Ratways Commis- SIONER. H.C. or A. 1933. Ww AUSTRALIAN Workers' Union v Common- WEALTH Ratways Commis. SIONER. = HIGH COURT (1933. Drivers and Firemen's Association of Australasia v. Albany Bell Li (1)). There is no such thing as a basic wage for the whole of Australi and the award only binds the parties to the dispute. From the date of that case, adjustment tables became part of the award. In country localities the Court allowed itself greater latitude than in dealing with urban claims (Australian Timber Workers' Union y. John Sharp & Sons Ltd, (2) ). That judgment shows that the Court has to resort to something arbitrary in determining the basic wage in the country (Federated Engine Drivers and Firemen's Association of Australasia vy. Broken Hill Pty. Co. (3)). Judge Drake- Brockman was not acting in accordance with the principle of the statute, which protects the basic wage in a manner in which it had not hitherto done. [He referred to A New Province for Law and Order by Higgins J., first pamphlet, p. 5; Wages and Prices by Giblin, pars. 3, 8, 17, 48.] ; : Sir Edward Mitchell K.C. cea him Russell Martin), a the | q respondents. The expression " basic wage" in sec. 18a (4) (i) (6) — means what had become known as such in Hx parte H. V. pe : (The Harvester Case) (4). The principles which are referred to in a that paragraph are those which were considered fundamental in ' that case. [Starke J. referred to Australian Workers' Union v. Commonwealth Railways Commissioner (5).] The basic wage is fixed to enable the worker to keep himself, his . wife and three children, and has nothing to do with the wage of the skilled worker (Statement by the Full Court (6) ). The judgment of @ Judge Drake-Brockman must be read in connection with sec, 25. — The statistician's figures cannot be made conclusive evidence in all cases, The basic wage means the standard of living prescribed by Higgins J. in the Harvester Case (4), in accordance with the then relevant prices of commodities, to be adjusted with the change of prices as compared with prices ruling when that judgment was delivered, fixing 7s. a day as the basic wage. There is no (1) (1921) 15 C.A.R., at pp. 715, 716. (3) (1911) 5 C.A.R. 9, at pp. 14, 15. (2) (1920) 14 C.A.R. 811, at pp. 830, (4) (1907) 2 C.A.R. 1. 831, 833. (5) (1920) 14 C.A.R. 496. (6) (1923) 17 C.A.R. 376. 19 C.L.R.] OF AUSTRALIA. asic wage is there given, though there is power to enact a Australian Workers' Union (1)). The index numbers cannot e conclusive, because that would be contrary to sec. 25. Where ed values from time to time (Federated Engine Drivers and en's Association of Australasia v. Broken Hill Pty. Co. 2)). In re Fairest Method of Securing " Harvester" Judgment lation was passed. Judge Drake-Brockman abolished the ing award. There was jurisdiction to do that, and the former avoid unnecessary technicality. Sec. 184 was not intended to apply to all awards and does not apply to alterations of detail. This tights as would affect the basic wage, and was inserted only for the e of protecting the Harvester award plus the " Powers 3s." nd any other adjustments required to make the Harvester award ive. Sec. 38, which gives a wide jurisdiction to the Court, must be read subject to the fact that there is no definition of " basic age" in the Act, there being no power to prescribe a basic wage mut only power to prescribe a minimum rate of wage. An obligation s placed upon the Court under sec. 23 (1) to investigate every industrial dispute and, in the course of such investigation, the ourt shall make all such suggestions as it thinks right for the jose of seftling the dispute. Under sec. 24, if an agreement is ived at, the memorandum of its terms is to be made in writing nd certified by a Judge and then filed with the Registrar, and it then has the effect of an award. An alteration of the terms of such in agreement cannot require the approval of three Judges. The (1) (1930) 29 C.A.R., at p. 273. (2) (1911) 5 C.A.R., at pp. 14, 15. ' (8) (1922) 16 C.A-R. 829. lefinition of basic wage in the Act, and now power to enact a H.C. or A. 1933. Ww minimum wage (Graziers' Association of New South Wales v. Avsrrauiay Workers' Union v Common- WEALTH Ramways Commis- SIONER. H. ©. or A. 1933. W AUSTRALIAN Workers' Unton v. Common- WEALTH Rarnways Comaus- SIONER. April 21. HIGH COURT (1933, Judge is at liberty to inform his mind in any way he thinks fit andy in this case, he acted in a proper manner and within his jurisdiction, a '* H.S. Nicholas, in reply. If, in order to comply with sec. 25, , the Judge makes an alteration in the basic wage, he is acting — inconsistently with sec. 18a. The basic wage used to be a fixed sum, but this new method was adopted by putting in a variation — clause. No single Judge can go below the basic wage fixed by the Full Court. In the cases referred to for the respondent, no dictionary meaning is given to the expression "basic wage," because the Harvester award is referred to as giving every worker a minimum standard of living. But, in order to ensure that he will get the full benefit, variations such as the addition of the " Powers 3s." and the taking of index numbers are included, in order to give the worker the same benefit as he would get under the Harvester award. These elements are all parts of the basic wage, which is the sum of money which has to be paid or computed. [He referred to Common- wealth Railways Act 1917-1925, secs. 46 (2), 47, 49, 50; Common- wealth Public Service Act 1922-1931, sec. 7, definition of " The Public Service," and secs. 8, 11, 12; Commonwealth Conciliation and Arbitration Act 1904-1930, sec. 4, definition of " Industrial dispute ".] Cur. adv. vult. The following written judgments were delivered :— Ricu, Drxon anp McTiernan JJ. Sec. 18a (4) (i) (b) of the Commonwealth Conciliation and Arbitration Act 1904-1930 enacts that the Commonwealth Court of Conciliation and Arbitration shall not have jurisdiction to make an award altering the basic wage or the principles upon which it is computed unless the question is heard by the Chief Judge and not less than two other Judges and the alteration is approved by a majority of the members of the Court by whom the question is heard. The expression " the basic wage " came into use through the system of industrial arbitration as a description of the primary wage payable to an unskilled worker. Presumably it was so called, because, not only was it the lowest rate for adult workmen, but it was basal in the assessment of the OF AUSTRALIA. remuneration for skilled labour. It appears that much uncertainty and difference of opinion exist as to the precise sense in which the pression is used in this provision. The statute is dealing with the Court of Conciliation and Arbitration, and it is through the use in that Court of the expression that it has obtained currency. It is, therefore, natural to resort to the awards and reasons given in that Court to ascertain the connotation with which the Legislature should be understood to have used it. An examination of such of material as we have been referred to has convinced us that in Australia in 1930 the words "basic wage " meant the money rate f wages specified in or ascertainable from a regulation or determina- of minimum wages contained in an award or other instrument s the rate prescribed for an unskilled labourer. In this statute e Legislature may further be taken to have referred to a rate of it description prescribed by the Court of Conciliation and Arbitra- on, which, hitherto, in doing so has proceeded upon the principle hat a reasonable living wage must be paid, sufficient to enable a "normal man with a wife and three children to be maintained according toa suitable standard. This rate has been habitually fixed by that rt by a calculation from a rate of seven shillings a day in bourne in 1907, adjusted to other places and to other periods of e by means of statistical tables, and by exercising a discretion, not only in selecting the statistical table which appears appropriate in respect both of the basis of calculation and of the place as for which the table is constructed, but also sometimes in adding, or perhaps even subtracting, an arbitrary figure considered to be fair ause of some local or special condition. The award of his Honor Judge Drake-Brockman, which is impugned as altering the basic e or the principles upon which it is computed, purports to d ne all prior awards governing the wages and conditions of em ployment upon the Trans-Australian or Central Australian tail ay. At the time when his award was made, an award was on foot made by the Deputy President, Sir John Quick, which, in effect, dopted or continued the basic wage fixed by a former award made the President, Sir Charles Powers. By that award a primary e was prescribed, arrived at by adopting the index figures for preceding quarter belonging to Port Augusta in a statistical H.C. or A. 1933. we AUSTRALIAN WorkERS' Uxton v. Common- WEALTH Raruways Commas- SIONER. Rich J. Dixon J. MeTiernan J, H.C. or A. 1933. Ww AUSTRALIAN Workers' Union v Common- WEALTH Ramways Commis- SIONER. Rich J. Dixon J. McTiernan J. HIGH COURT (1933, table showing a relation between the cost of living estimated at seven shillings in Melbourne in 1907 and the cost of living on a corresponding standard in Port Augusta in the quarter preceding the date of the award. To the figures so obtained an addition of three shillings a week was made according to a custom then recently 7 established by the President, and a further addition of one shilling and three pence per day was made on special grounds. This, whether by chance or design, produced an initial figure equivalent to the wage then prevailing in Adelaide. The award contained the usual provisions for an automatic adjustment of this initial figure in accordance with variations in the cost of living shown by future statistical tables. For the purpose of this adjustment statistical tables were selected for the cost of living, not at Port Augusta, but calculated upon a weighted average for four towns in South Australia, not including Adelaide. In the award of his Honor Judge Drake-Brockman, for ascertaining the basic wage of employees residing west of the 1,021 mile post upon the railway, the index figure belonging to Kalgoorlie was adopted, and for other employees a special index figure belonging to Port Augusta, but calculated upon statistics which excluded rent payable for houses let by the Railways Commissioner and included prices of commodities sold at the Railways Commissioner's store, prices upon which the statistical tables had not theretofore been based. To the figure ascertained by this means, the customary three shillings a week was added. But his Honor declined to make a further addition of one shilling and three pence per day or of any other sum. The wage so fixed was prescribed as the initial figure under the title " basic wage." For the purpose of the adjustment clause the statistical table for the four South Australian towns was not adopted, but the index figure for the specific place or area was taken or intended to be taken. The result of these changes was to _ reduce the wage which, if the old award had remained in force, would have been payable under its provisions as the primary wage i to the unskilled labourer, the wage payable for skilled labour being assessed on the basis of that primary wage. It results from the interpretation which we have given to the expression " basic wage" " _ 49 C.L.R.J OF AUSTRALIA. in sec. 184 (4) (i) (b) that the award in effecting these changes assumed o alter the basic wage. The award was, therefore, made without urisdiction. The questions in the summons should be answered :—(1) Yes. (2) Answer unnecessary. (3) No. _ Srarke J. Summons under sec. 21aa of the Commonwealth Yonciliation and Arbitration Act 1904-1930, referred by my brother Evatt to this Court. The questions for determination are :—1. Whether the award made by Judge Drake-Brockman of the Common- alth Court of Conciliation and Arbitration on 16th December in the matter of certain disputes was an award altering the ic wage. 2. Whether the award was an award altering the principles on which the basic wages is computed. 3. If the answer to one or two is in the affirmative, whether there was jurisdiction to make the award. A preliminary question is whether the disputes were within the jurisdiction of the Commonwealth Court of Conciliation and Arbitra- Under the Commonwealth Conciliation and Arbitration Act 1904-1930, jurisdiction is given to the Commonwealth Court of Conciliation and Arbitration to make awards determining industrial utes extending beyond the limits of any one State, including ny dispute in relation to employment in an industry carried on y or under the control of the Commonwealth or any public authority stituted under the Commonwealth. The disputes in this case between the Commonwealth Railways Commissioner and his employees, organized in various unions. The operations of the lways extended over more than one State, and the disputes ited to wages and conditions of work of the employees carrying n those operations. Prima facie therefore the disputes were within é jurisdiction of the Commonwealth Court of Conciliation and rbitration. Two Acts, however, require consideration, the Arbitra- (Public Service) Act of 1911, and the Arbitration (Public Service) H. C. or A. 1933. Ww AUSTRALIAN WorkKERS' Usi0on v. Common- WEALTH Rattways Commis- SIONER. H. ©. or A. 1933. Ww AUSTRALIAN Workers' Union v ComMon- WEALTH Ratways Commis: SIONER. Starke J. HIGH COURT [1933 or whether under the Commonwealth Public Service Acts or not, The employees of the Commonwealth Railways Commissioner fall within this definition (see Commonwealth Railways Act 1917-1925), Under the Arbitration (Public Service) Act of 1911, an organization of employees in the Public Service was empowered to submit to the — Commonwealth Court of Conciliation and Arbitration any claim relating to salaries and wages or terms and conditions of employment, and jurisdiction was given to the Court to hear and determine the claim. Under the Arbitration (Public Service) Act of 1920, however, a Public Service Arbitrator was constituted, and jurisdiction was given him to determine all matters submitted to him relating to salaries, wages, rates of pay or terms and conditions of service or employment of officers and employees of the Public Service. And sec. 11 of the Act provides: "(1) Notwithstanding anything contained in the Arbitration (Public Service) Act 1911, an organization of employees in the Public Service shall not be entitled to submit to the Court " (that is, the Commonwealth Court of Conciliation and Arbitration) "under that Act any claim relating to the salaries, wages, rates of pay, or terms or conditions of service or employment of members of the organization." But this prohibition is directed to claims submitted under the 1911 Act, which do not require and may not involve any of the elements of an industrial dispute extend- ing beyond the limits of a State necessary to found jurisdiction under the Commonwealth Conciliation and Arbitration Act 1904-1930. Consequently, in my opinion, the jurisdiction of the Commonwealth Court of Conciliation and Arbitration under the last-mentioned Act is not ousted by reason of the provisions of sec. 11 of the Arbitration (Public Service) Act of 1920, and so attaches to the present disputes. I now turn to the consideration of the questions raised by the summons under sec. 2144. They depend upon the construction of sec. 18a (4) of the Commonwealth Conciliation and Arbitration Act 1904-1930. It provides: " Notwithstanding anything contained in this Act, the Court" (that is, the Commonwealth Court of Concilia~ 4 tion and Arbitration) " shall not have jurisdiction—(i) . . . t0 . makeanaward . . . (b) altering the basic wage or the principles z on which it is computed . . . unless the question is heard by — the Chief Judge and not less than two other Judges, and the 9 C.L.R.] OF AUSTRALIA. ation . . . is approved by a majority of the eee ot the Court by whom the question is heard." The " basic wage" n expression commonly used in Australia. Its principal paint as Mr. Justice Higgins, who, in an article contributed by him to the Harvard Law Review in January 1919 entitled 4 New Province or Law and Order, described it as the lowest wage which can be aid to an unskilled labourer on the basis of the normal needs 'of an average employee regarded as a human being living in a vilized community (Official Year Book of the Commonwealth of Australia (1932), No. 25, p. 787; Harvard Law Review, vol. 32, pp. 191, 192). But this wage is fixed by various industrial tribunals 'in Australia operating under Federal and State Arbitration Acts, and is varied from time to time according to changes in the cost of living, constitution of the family unit, &c. (Year Book of the nmonwealth (1932), No. 25, p. 787). "' The basic wage rates fixed State arbitration tribunals differ from those obtaining in the deral sphere not only as regards amount, but also in respect of constitution of family unit whose need it purports to supply " (Year Book of the Commonwealth (1932), No. 25, p. 788). So I take it that the basic wage referred to in the Federal Arbitration Act is the wage fixed by the tribunal operating under that Act. A general rate of wage is not declared by any Federal tribunal, as is the se in some of the States. But it is possible that the Legislature 'may have in contemplation some formula by which the basic wage can be ascertained. According to Mr. Justice Higgins' formula, it to be fixed on family lines, on the assumption that the male lt worker has to support himself, a wife and three dependent en (see A New Province for Law and Order, Harvard Law Review 920), vol. 34, p. 105). It is quite immaterial for present purposes her the assumption is accurate or inaccurate, though it has often been attacked (see table in Federated Public Service Assistants' ociation v. Commonwealth of Australia (1); E. Rathbone, The inherited Family). Further, Mr. Justice Higgins said in the article (Harvard Law Review, vol. 34, at pp. 116, 117) :—" In ling the basic wage the Court uses a rough estimate which it in an inquiry in 1907 as to ' fair and reasonable remuneration,' (1) (1920) 14 C.A.R. 639, at p. 685. H.C. or A. 1933. Ww AUSTRALIAN Workers' Union v Common- WEALTH Ratways Commas- SIONER. Starke J. H.C. or A. 1933. Ww AUSTRALIAN Workers' Uwtox v. Common- WEALTH Rarways Comms- SIONER. Starke J. HIGH COURT (1933. _ and the Court varies the 7s. per day, 42s. per week, as then estimated, in the ratio that the cost of living has increased since 1907. For instance, if it now takes 30s. to purchase as much as could be purchased in 1907 for 17s, 6d., the basic wage is found by this formula: 17s. 6d : 30s. :: 7s. : 12s." The above rate of 7s. has been varied from time to time in accordance with the retail price index numbers —food, groceries, rent (all houses)—prepared by the Commonwealth Bureau of Census and Statistics for the city or town in which the persons affected are employed, and the rate so obtained has been taken by the Commonwealth Court of Conciliation and Arbitration as the minimum rate of wage for an unskilled male worker, But it is clear that this formula has not been rigidly maintained by the Commonwealth Court of Conciliation and Arbitration. Thus, in 1921, the sum of 3s. was added for the purpose of securing to the worker during a period of rising prices the full equivalent of the Harvester standard, that is 7s. per diem (Year Book of the Common- wealth, (1932), No. 25, p. 787 ; Statement of Full Court (1) ). Further, effect is given as far as possible to the difference in the cost of living in different localities. The Court has used its discretion in the application, for the purpose of fixing wages, of the index numbers supplied by the Commonwealth Bureau of Census and Statistics. It has selected index numbers for the purposes of its awards, and in some instances has even "loaded" those numbers. (See the examination of wages and prices issued in December 1931 by the Commonwealth Bureau of Census and Statistics). The result is that the expression " basic wage" in sec. 18a (4) of the Common- wealth Conciliation and Arbitration Act 1904-1930 cannot be referred to a wage ascertained by reference to any precise or definite formula, but must mean the minimum rate prescribed for unskilled labourers in an award or order of the Court. It is this rate that must not be altered unless the question is heard by the Chief Judge and not less than two other Judges. : The award of Judge Drake-Brockman in the present disputes, : made in proceedings which lasted no less than thirty-four days, contravenes this provision. Under an award made by Deputy — (1) (1923) 17 C.A.R. 376. L.R.] OF AUSTRALIA. ident Quick in Australian Workers' Union v. Commonwealth ilways Commissioner (1), the basic wage was fixed at 14s. per day, ich included the 3s. loading already mentioned, and also a special ding of ls. 3d. This rate was subject to adjustment in accordance vith variations shown in the cost of living by certain selected index numbers issued by the Commonwealth Bureau of Statistics. The rd of Judge Drake-Brockman purports to determine this award, d prescribes as follows :— "The minimum rate of wages " (subject to a reduction of ten per cent until otherwise ordered by the Court) " shall be the rate ascer- ned in the following manner :— "Where the employee is stationed in the locality mentioned in the first column of Table ' A' hereunder written the employee shall be paid at the rate mentioned in the second column of the said "Table 'A. "First Column Second Column. Third Column. 4 | Index number on which ae quarterly adjustment of wages een vse Basic wage. shall be made. | "Number, For. "West of 1,021 miles | £3 12s. 6d. per week | STrans-Australien | 12s. 1d. per day 1450 | Kalgoorlie. Railway | yhere | £3 6s. per week 1310 | Port Augusta together | Us. per day | with railway stores | prices for bread, groceries and dairy produce." e Quick award, after making adjustments in accordance with tions shown in the cost of living as prescribed by the award. difference is due to the rejection of the special loading of Is. 3d. ind to the use, except as to residents in the vicinity of Kalgoorlie, of tt Judge Drake-Brockman describes as "a composite index figure dairy produce together with all other factors usually included in the Port Augusta index figure." By taking in the railway stores (1) (1927) 24 C.A.R. 678. H.C. or A. 1933, Ww AUSTRALIAN Workers' Union v Common- WEALTH Raiways Commts- SIONER. Starke J. H.C. or A. 1933. a) AUSTRALIAN Workers' Union v Common- WEALTH Ramways Commis- SIONER. Starke J. HIGH COURT prices, the learned Judge adopted a new method of computing basic wage. And I suppose this may also be called an alteration the principle on which the basic wage was computed under the Quick award, for it departs from the method there adopted for ascertaining that wage. A suggestion was made that the Kalgoorlie basic wage rate was severable and could be supported. But the Kalgoorlie rate is altered by the new award, and in any case the award is so bound together — that the wages provisions cannot be severed. The questions raised by the summons should be decided as follows : —l. Yes. 2. Yes. 3. No. Evarr J. By an amendment of the Commonwealth Conciliation and Arbitration Act, inserted during the year 1930, a single Judge of the Court is deprived of jurisdiction "to make an award . . . altering the basic wage or the principles on which it is computed" (Sec. 18a (4): Act No. 43 of 1930, sec. 7). ; The question arising in this summons is whether Judge Drake-_ Brockman's award dated December 16th, 1932, made in settlement of disputes between the Commonwealth Railways Commissioner and certain unions was in excess of jurisdiction by reason of the 1930 amendment. That question necessarily turns upon the meaning of the phrase " basic wage." It is nowhere defined in the statute, so we are remitted to other sources. Many years ago, Mr. Justice Higgins in an elaborate account of the Federal arbitration system thus stated certain aspects of the "basic wage " :— (1) "The basic or living wage is computed and awarded on the principle - that a normal man has a family and must earn sufficient to support it. Nor is the basic wage confined to the money necessary for the main requisites of life—food, shelter, clothing ; it allows something 'to come and go on.' The wage is based on civilised conditions—'the normal needs of the average employee regarded as a human being living in a civilised community.' That wage, as originally granted in 1907, lifted the standard of living for the poors and, in the recent troublous years, it has followed closely the increase in the cost of living" (A New Province for Law and Order (1922), p. 90). (2) "The 'basic' or living wage, the minimum wage for the unskilled worker, is the primary factor in the fixing of all wages by award; and the fixing of the proper basic wage is necessarily of an importance that can hardly be exaggerated. It must vary with the cost of living in the various districts 5 CLR.) OF AUSTRALIA. for instance, the basic wage for the seaports would not be a proper basic wage for inland mining districts such as Broken Hill. But sometimes by general eonsent a uniform basic wage is desirable, as in the case of the waterside workers or seamen; and the Court then takes as its guide the mean cost of - living for the several ports " (ibid., p. 52). (3) "The Court has repeatedly invited full inquiry on scientific lines as to _ the cost of living, but neither the Government nor the parties have yet responded. Preferably the inquiry should be made by expert statisticians and on the basis of distinct regimens, but the responsibility of fixing the basic wage should be left with the Court. In the meantime the Court has been obliged to work 'out the problem on the best materials that it can get. At present the Court "takes as prima facie evidence the findings as to the cost of living on then existing habits in Melbourne in 1907, and then it takes the statistician's figures as to the depreciation in the value of money as against commodities as prima facie evidence of the increase in the cost of living" (ibid., p. 53). (4) Referring to the part played by the Commonwealth Statistician 'the matter, his Honor said :— "He does not, as some people fancy, pretend to show the cost of living in "a wage-earner's family ; but he shows the depreciation in the value of money 'as regards the selected commodities, and, as he says, 'in normal circumstances properly computed index numbers of food and groceries and house rent combined form one of the best possible measures of those variations in the "purchasing power of money which affect the cost of living.' Then the Court comes in, and, until the contrary be shown, infers that the depreciation in the "value of money which is found in relation to the selected commodities is to be found also in relation to the other commodities. This method is in accordance "with the views and intentions of the Statistician ; for he says ' once a standard 'of living or living wage has been fixed, the tables published . . . can be legitimately used as showing the variations in the cost of living.' No party is bound by these tables as by a matter of absolute irrefutable law, but they are on the right method, and the Court makes use of them until it can find better evidence " (ibid., p. 54). }) His Honor also said :— "It is the practice of the Court to let no considerations of competition with foreign countries reduce what is found to be the proper basic wage ; and this "practice, it must be admitted to the credit of the employers, has never been. ited so far as I know. The proper sustenance of the persons employed (on the basis of family life) is treated in effect as a first charge on the product " id., pp. 54, 55). Referring to the appointment of the Federal Basic Wage Commission of 1920, his Honor said :— "the basic wage is to be fixed on family lines, on the assumption that the male "adult worker has to support himself, a wife, and three dependent children. is in accordance with the assumption of the Court in 1907; and it is also accordance with the United States Bureau of Labour and Statistics, December " (ibid., p. 95). H.C. oF A. 1933. Ww AUSTRALIAN Workers' Usioy a Common- WEALTH Ramways. Commis- SIONER. Evatt J. H. ©. or A. 1933. Ww AUSTRALIAN Workers Ustox ». Common- WEALTH Rarways Commas- SIONER. « and expounded by other industrial tribunals in this country, although HIGH COURT [193% Of course the views of Higgins J. on such a question as the pre: are of the highest authority. They have frequently been adopt " 6 the terms "living wage," "minimum wage" and " basic wage" are often used interchangeably. Thus in 1914 Mr. Justice Heydon of the Court of Industrial — Arbitration of New South Wales stated that the worker's living wage was to be founded "on his requirements as a man in a civilized community which has resolved that, so far as laws can do it, competition shall no longer be allowed to crush him into sweated conditions " (Inquiry re Cost of Living (1)). Piddington J. in 1926 regarded the living wage as " the irreducible minimum which can be embodied in an award under the Act or in an industrial agreement made under the Act" (In re Standard of Living Inquiry (2) ), and Cantor and Street JJ. defined the living wage as " the lowest wage which the conscience of the community will permit to be paid to an employee, and . . . to be paid to him not as a retum for services rendered, or in proportion to the value of his services, but in order to meet the cost of maintenance of himself and his family, according to the domestic unit prescribed. It is to be the irreducible minimum below which no person, — whose conditions of work are covered by an award or industrial agreement, is to be permitted to offer his services or to be employed by an employer" (In re Standard of Living and Living Wages for Adult Male Employees (3)). The New South Wales system of industrial arbitration differs in important respects from that of the Commonwealth where the jurisdiction of the Court is conditioned by the actual or probable existence of a certain type of dispute, and where, as a consequence, no general rule even as to the amount of the basic wage can be promulgated in advance of an award settling or preventing a dispute. In answering the crucial question of this case, the meaning to be attributed to the phrase " basic wage or the principles on which it it is computed," some guidance is, I think, to be found in pronounce- ments made during 1929 and 1930 by Judges of the Federal Court. In one case, Chief Judge Dethridge declined to include in his award settling a dispute any provision for what is known as the " Powers 3s." Powers J. had in 1921, when President of the Federal Court, ; thought it just to include the sum of three shillings per week in the (1) (1914) ALR. (N.S.W.) 22, at p. 26. (2) (1926) ALR. (N.S.W.) 301, at p. 303. (3) (1929) ALR. (N.S.W.) 375, at p. 421. 9 O.L.R.] OF AUSTRALIA. asic wage for reasons with which we need not now concern ourselves. 1930 also, Chief Judge Dethridge, in Graziers' Association of New S Wales v. Australian Workers' Union (Pastoralists' Case) (1), licated, not obscurely, the possibility or probability of using an number which would considerably reduce the basic wage. This actual and threatened change from what was regarded as established practice, was soon followed by the amendment in question. fs main object is clear, to protect the existing "basic wage," as mbodied in an award, against any alteration on the part of a single To my mind the terms of the sub-section are too clear to dmit of the meaning of "basic wage" suggested by Sir Edward ell for the Commonwealth Railways Commissioner, namely, an amount of money sufficient to purchase, at the relevant time, and in the relevant place, commodities corresponding with the Higgins ester standard of 1907. The sub-section regards the " basic " as something contained in and foundational to a particular d, not awards of the Court in general. Tt was also sought by the amendment to safeguard against altera- ions by a single Judge the " principles" of computation of the "basic wage." What these " principles " cover, in any given case, turn out to be, that of ascertaining what is sufficient to provide a nan, his wife and three children with a reasonable standard of living in the appropriate district. The award in force at the date of the Drake-Brockman award was No. 94 of 1926, made by Sir John Quick on December 22nd, 1926. he basic wage was thereby made alterable from time to time an adjustment table bringing in the index number for the towns of South Australia. As adjusted upon this footing at the date when Judge Drake-Brockman made his award, the basic age in force (by virtue of the continuance in force of the Quick ward) was 12s. 4d. per day. But Judge Drake-Brockman's basic wage was 12s. 1d. per day or an area west of the 1,021 mile post on the Trans-Australian a (1) (1930) 29 C.A.R. 261. H.C. oF A. 1933. WS AvsTRALIAN Workers' Usion v. Common- WEALTH Raruways Commais- 608 HIGH COURT H.C.or A. Railway, and 11s. per day elsewhere. Each of these sums of mon ee was lower than the existing basic wage. There was an alteration o Avsrratian the basic wage which went beyond his Honor's jurisdiction. Nicnee z upon the foundation of such base rates the Drake-Brockman aw: C common. of marginal rates was also fixed, the award in that respect also Wweattt beyond jurisdiction. It is unnecessary to determine whether th Rartways x Commis- was involved, also, any alteration of the principles upon which th SIONER. . . —— Quick basic wage was computed. meds The result is that the Quick award as to wages continued, still continues in force, notwithstanding the Drake-Brockman award. The questions in the summons should be answered :—l. Y¢ 2. Unnecessary to answer. 3. No. Questions answered :—1. Yes. 2. Answer un- necessary. 3. No. Solicitor for the applicant, A. CO. Roberts. Solicitor for the respondent, W. H. Sharwood, Crown Solicitor for the Commonwealth.