F. C. R. v. INDUSTRIAL COURT AND Ex parte corresponding section in the New South Wales Statute. There is at present nothing to prohibit. Whybrow's Case (1). The Industrial Court has jurisdiction to make a retrospective award in respect of industrial matters, and work done, or to be done, is an industrial matter within the Court's jurisdiction, and at least the award is valid from 26th August, 1916. Section 13 in terms does not declare that awards must be prospective only. The clauses giving retrospective operation to the award, if invalid, are quite severable from the remaining portion of the award. The Kalibia (2) and cases there cited, Whybrow's Case (3), Australian Workers' Union v. The Pastoralists' Federal Council of Australia and Others (4), Federated Amalgamated Government Railway and Tramway Service Association's Case (5), Osborne v. The Commonwealth (6), The Masters and Servants Act of 1861, ss. 14 and 16; as to The Masters and Servants Act of 1861, Kerridge v. Simmonds (7), Halsbury, Laws of England, Vol. XXVII., p. 196; waiver of statutory rights may be made, Great Eastern Railway Co. v. Goldsmid (8), Craies on Statute Law, 2nd Ed. p. 258, Wilson v. McIntosh (9), Griffiths v. Earl of Dudley (10), Park Gate Iron Co. v. Coates (11). The dietary scale, like all other industrial matters, was within the jurisdiction of the Court s. 31. The accommodation awarded, although slightly in addition to other statutory requirements, could be awarded, and was also within the power of the Court. The clause re the visit of union officials is justified as a "privilege" and as being "fair and right." They also referred to Australian Boot Trade Employees' Federation v. Whybrow & Co. (12), Baxter's Case (13), Pardo v. Bingham (14), Clancy's Case (15). Prohibition does not lie. The only remedy (if any), is certiorari, and no motion has been made therefor. Shortt on Mandamus, etc., pp. 426, 436, 439. Stumm K.C. in reply: Prohibition will lie. Mayor of London v. Cox (16), Halsbury, Laws of England, Vol. X., p. 153; R. v. Industrial Court (17). The powers of the Industrial Court are at least limited by the scope of this Act and by considerations of reasonableness and fairness. The whole award is invalid. The (1) 1910, 11 C.L.R. 1, at p. 60. (3) 1910, 11 C.L.R. 1, at p. 26. (5) 1906, 4 C.L.R. 488. (8) 1884, 9 A.C. 927, at p. 936. (9) [1894] A.C. 129. (10) 1882, 9 Q.B.D. 357. (12) 1910, 10 C.L.R. 266, at p. 282. (14) 1869, L.R. 4 Ch. 735. (15) 1904 1 C.L.R. 181. (16) 1866, L.R. 2 H.L. 239 at p. 280. (17) 1915, St. R. Qd. 165. invalid portion cannot be severed. The whole award is permeated with the illegal portion of it. The elimination of the retrospective portion only would in effect be a reversion of the whole award, as it is framed for seasonal workers or for yearly workers, and for a definite period in each case. It is impossible to suggest what award would have been given if the retrospective operation had not been considered by the Industrial Court to be within its jurisdiction. If the matters beyond jurisdiction were eliminated from the award-viz., the retrospective operation, the interference with the rights under The Masters and Servants Act of 1861, the provision as to cooks, entry of union officers, and the excessive dietary scale the remaining part would constitute substantially a different award. The valid and invalid portions are so interwoven that severability is impossible, and the whole award must fail. The Kalibia Case (1), Osborne v. The Commonwealth (2). The judgment of the Court was read by C.A.V. COOPER C.J. In this matter the prosecutors, The Australian Sugar Producers' Association Limited, are moving absolute an order nisi calling upon the Industrial Court, the Acting Judge of that Court, and the Australian Workers' Union, to show cause why a writ of prohibition should not be issued, prohibiting them, and each of them, from proceeding, or further proceeding, upon an award purporting to have been made by the Industrial Court on the 29th August, 1916, in respect of the callings of Sugar Mill and Sugar Field Workers. As the matter is one of considerable importance and urgency, we propose to announce our conclusions shortly at once, without waiting to further elaborate the reasons which have led us to these conclusions. For the respondents, the Australian Workers' Union (parties to the award), who appeared to resist the motion, it was contended that prohibition does not lie in respect of an award of the Industrial Court; and in support of this contention reliance was placed on s. 16 of The Industrial Peace Act of 1912. But, in our opinion, the decision of the High Court in the case known as Clancy's Case (3) absolutely disposes of this contention. This Court, when constituted by three Judges, has already held that (1) 1910, 11 C.L.R. 689, at p. 713. (2) 1911, 12 C.L.R. 321, at p. 367. (3) 1904, 1 C.L.R. 181. F. C. R. v. INDUSTRIAL WORKERS' Ex parte SUGAR PRODUCERS' ASSOCIATION LTD. Cooper C.J. F. C. R. v. INDUSTRIAL COURT AND AUSTRALIAN WORKERS' UNION, Ex parte AUSTRALIAN SUGAR PRODUCERS' ASSOCIATION LTD. Cooper C.J. prohibition lies. See The King v. The Industrial Court and Others (1). We have no doubt that prohibition does lie in respect of awards of the Industrial Court which are made without, or in excess of, jurisdiction. For the respondents, it was further contended that in any case prohibition cannot be granted until some active proceedings to enforce the provisions of the award to which objection is made, have been taken by some party actually before this Court. It appears that such proceedings have been initiated by other parties to the award. But, in our opinion, this contention also is not sustainable, so far at all events as prohibition is sought against the respondents who have appeared to oppose the rule being made absolute. See Mayor, Etc., of London v. Cox (2). The first objection taken to the award is that it professes and is intended to have a retrospective effect. 66 The last clause of the award purports to provide that this award shall be as of and take effect and have the force of law within the locality specified, as from the first day of June, 1916, and remain in force for a period of twelve months from that date." And the award was made and signed by the Acting Judge of the Industrial Court on the 29th August, 1916, and bears that date. In these circumstances, we are of opinion that in so far as the Acting Judge has attempted to give any retroactive operation to his award, he has exceeded his jurisdiction. The provisions of s. 13 of The Industrial Peace Act of 1912, leave no room for doubt in our minds that an award under the provisions of that Act can only have effect from its date, which in this case was the 29th August, 1916. The second objection taken to the award is that it prevents the operation of The Masters and Servants Act of 1861 with respect to the remedies of employers therein provided against employees; and therefore impliedly repeals the said Act. Clause 12 of Part I. of the award relating to sugar field workers provides that where written agreements for cane cutting are entered into, they shall be in the form and terms of Schedule A. thereto; and by Clause 19 of the form in this Schedule, it is provided that "The employees shall have recourse against the employer for moneys owing under this contract to the same extent as if this contract was under The Masters and Servants Act of 1861 but save as aforesaid the parties hereto agree that this (1) 1915, St. R. Qd. 165. (2) 1866, L.R. 2 H.L. 239, at p. 280. agreement shall not be under The Masters and Servants Act of 1861 .. and that they shall not nor shall any of them take proceedings under that Act in respect of any breach or alleged breach thereof." In our opinion, the cases cited by counsel for the respondents, in which persons have been allowed to waive voluntarily rights conferred upon them for their exclusive benefit, or to waive the performance of formal preliminaries to proceedings taken against them, have no application; and, in our opinion, the Acting Judge had no jurisdiction to make this clause a compulsory term of any agreement. In so far as he has attempted to do so, his award is, we think, in excess of jurisdiction. The third objection taken to the award is that it proposes, and is intended, to impose on employers the obligation to supply food and goods on a specified scale for a specified sum. Now, whatever we personally may think of the obligations imposed upon the employers by the Clauses 4 and 14 of the award, we find ourselves unable to say that the Acting Judge had no jurisdiction to prescribe, or that he exceeded his jurisdiction in prescribing the supply of such food, whether cooked or uncooked, and such cooking and table utensils, as he thought reasonable. Nor do we find ourselves able to say that the Acting Judge was precluded from directing, if he so thought fit, that no employer should enter into a contract for the victualling of his employees by some caterer employed by him for that purpose. See Clause 4 (e) of the award. The principal difficulty on this part of the case arises, we think, from Clause 4 (c) of the award, which provides that the value of the food which the employer is required to supply "shall be taken to be £1 per week in the Northern district, and 19s. in the Southern district, and no further sum shall be deducted by an employer in respect thereof from the wages prescribed herein." As the wages previously prescribed by the award are therein stated to be the minimum wages payable, a question naturally arises whether Clause 4 (c) does not contravene the express provisions of s. 31 of The Industrial Peace Act of 1912, which enacts that "Where any employer employs any person who does any work for him for which an award has fixed the lowest prices or rates, then such employer shall be liable to pay and shall pay in full in money without any deduction whatever to such person the price or rate so fixed." F. C. R. v. INDUSTRIAL WORKERS' LTD. Cooper C.J. F. C. Ex parte LTD. Cooper C.J. In the opinion, however, of the majority of the Court, the award is capable of being construed to mean, and should, they think, be construed as meaning, that the wages prescribed include the value of the food (taken at £1 and 19s. per week), and that in order to arrive at the real wages, exclusive of the food allowance, the prescribed wages are reducible by this amount of £1 or 19s. In the opinion of the majority of the Court, the award so construed is not impeachable. The fourth objection taken to the award is that it deals with wages, food, and accommodation of the calling of cooks. Having regard to the provisions of s. 5 of The Industrial Peace Act of 1912, we are of opinion that in awards dealing only with the callings of sugar mill and sugar field workers, the Acting Judge had no jurisdiction to deal with the calling of cooks, and in attempting to do so has exceeded his jurisdiction. It was argued that cooks should be regarded as "assistants " or "labourers employed in the calling of sugar millers and sugar mill workers respectively, within the meaning of the words "assistants and labourers" in Schedule II. to The Industrial Peace Act of 1912. We are unable to accede to this argument. The fifth objection taken to the award is that the accommodation ordered by the award to be provided by employers is in excess of, and contrary to, The Workers' Accommodation Act of 1915. We are not by any means satisfied that the award prescribes anything in excess of the accommodation prescribed by the Act here referred to; nor do we think that the Acting Judge was precluded from prescribing accommodation in excess of that prescribed by that Act. We can discover nothing in the award which is contrary to that Act. The sixth objection taken to the award is that it grants permission generally to officials of any organization to which workers belong to enter upon the premises of employers and interview employees. Clause 21 of the form of agreement prescribed by Clause 12 of part I. of the award, and Clause 19 of Part II. of the award, respectively provide that officials of any organization to which the worker belongs "shall not be prevented by an employer from visiting and conversing with workers of the organization on any job at meal times or before or after the hours of work," and "shall be allowed to interview employees at reasonable hours, and during the employee's crib time or after working hours." So far as these provisions purport to confer upon any official |