Between: BANK OFFICIALS' ASSOCIATION (SOUTH AUSTRALIAN BRANCH)
And: SAVINGS BANK OF SOUTH AUSTRALIA

Judges: Knox CJ
Isaacs J
Higgins J
Rich J

Starke J

Subject References:
Arbitration
Industrial Court of South Australia
Jurisdiction

Legislative References:
Savings Bank Act 1875 (SA) - the Act

MELBOURNE

Judgment by:
STARKE J

The Bank Officials' Association (South Australian Branch), on 20th November 1920 delivered a claim to the Savings Bank of South Australia in respect of salaries and conditions of service of officers of the Bank. The claim was not granted, and a conference was called by the Deputy President of the Industrial Court pursuant to the Industrial Arbitration Acts of 1912-1916. The conference was held on 6th December and adjourned to 9th December, but nothing resulted, and the Deputy President referred the claim to the Industrial Court. On 9th December the Industrial Arbitration Acts of 1912-1916 had been repealed and their place taken by the Industrial Code of 1920; but the Code preserved proceedings under the Acts repealed, and provided that the same might be proceeded with, heard and determined, and the decision or any award, order or determination enforced under the Code (see s. 3). On 3rd February 1921 the Savings Bank obtained from the Supreme Court of South Australia a rule nisi directed to the President and Deputy President of the Industrial Court to show cause why a writ of prohibition should not issue to restrain them and the Industrial Court from hearing and determining or otherwise proceeding with the claim of the Bank Officials' Association which had been referred to that Court. The rule was made absolute on 11th October 1921; and this Court has been moved by way of appeal, pursuant to special leave granted to the Bank Officials' Association, to reverse and set aside the rule absolute.

The case was argued in the Court below "on the assumption that the jurisdiction of the Industrial Court to deal with this particular matter, if it has any at all, is that conferred by the Industrial Arbitration Act 1912." But it is plain that the matter ought to be determined upon the provisions of the Industrial Code of 1920. This point, however, is not, in my view, at all material, for the jurisdiction given to the Industrial Court has been extended rather than lessened by the Code of 1920. Under the 1912 Act the jurisdiction of the Court was over "all industrial matters and industrial disputes," whilst under the Code of 1920 the jurisdiction covers "all industrial matters," and, to remove any doubt as to the meaning of the phrase "industrial matters," it was declared that the jurisdiction of the Court over an industrial matter should not depend upon the existence of a dispute or upon the making of a prior claim or demand in relation to such industrial matter (Code, s. 5, "Industrial matters," sub-s. 3). No doubt the declaration was made because of a series of decisions given under the Commonwealth Conciliation and Arbitration Act, and based, in truth, upon the limitation of the constitutional power of the Commonwealth to make laws with respect to industrial disputes (cf. Tramways Case (No. 2) ^[F26] ). But the reason of the declaration is unimportant, for the jurisdiction of the Industrial Court over the Savings Bank of South Australia depends upon the true construction of the Code. I therefore turn to the provisions of the Code.

"Industrial matters" means "matters or things affecting or relating to work done or to be done, or the privileges, rights, or duties of employers or employees, or of persons who intend or propose to be employers or employees, in any industry ..." Industrial disputes are, therefore, included in the phrase thus defined. "Industry" means "craft, occupation, or calling in which persons ... are employed for hire or reward-(I.) in any business, trade, manufacture, or calling carried on by way of trade or for purposes of gain. ..." "Employee" means "any person employed in any industry ..."; and "employer" means "any person, firm, company, or corporation employing one or more employees in any industry ...", and includes the Public Service Commissioner and the Railways Commissioner, in relation to certain of their employees, district councils, etc, and "any other person, firm, company, or corporation, in respect of whom both Houses of Parliament pass a resolution approving their inclusion in" the definition. Now, the Savings Bank is a body politic and corporate constituted under the Savings Bank Act of 1875. The chief function of the Bank is the receipt of comparatively small deposits of money, representing savings, and the investment thereof for the benefit of the depositors. Its business is essentially that of a banker (Commissioners of the State Savings Bank of Victoria v Permewan, Wright & Co ^[F27] ). The Act itself recognizes that the Bank conducts a business (ss. 5 and 7), and may make profits (s. 42, and 3 Edw. VII. No. 824, s. 22). The officers of the bank are employed for reward in this business; consequently the Bank falls, apparently, within the very words of the definition of "industry" in the Code. The question of their remuneration and conditions of employment is a matter affecting or relating to their privileges, rights and duties in the business, and is apparently an "industrial matter" within the definition of the Code. And as the Industrial Court has jurisdiction to deal with all industrial matters, pursuant to the Act, it is difficult to see why it cannot hear and determine the claim of the Bank Officials' Association which was referred to the Court on 9th December 1920.

One reason advanced in support of the view that the Court has no jurisdiction is that the Savings Bank was entitled to the privileges and immunities of the Crown, and was not, therefore, bound by the Industrial Code. But though State aid has been given to the Bank in some directions (see 3 Geo. V. No. 1083, s. 19), still the authorities and powers of the Bank are quite independent of the Crown, and it is by no means a mere agent of the Government (Fox v Government of Newfoundland ^[F28] ). This argument is, therefore, untenable. Another reason advanced, however, creates more difficulty. It is said that the special terms of the Savings Bank Act are wholly inconsistent with the application of the Industrial Code to the Savings Bank: "Generalia specialibus non derogant" (Barker v Edger; ^[F29] Blackpool Corporation v Starr Estate Co ^[F30] ). But this maxim should not be pressed too far: it is but an aid to construction. The essential inquiry is what is the intention of the Legislature as gathered from the words of the Code. On the one hand, the Savings Bank Act authorizes the trustees of the Bank, subject to the approval of the Governor, to appoint and remove officers of the Bank, and to pay them such salaries and emoluments as to the trustees shall seem reasonable. A few rights and privileges are given by the Act to officers placed on the fixed establishment (see s. 8); but, in the main, the appointment, remuneration, control and removal of the officers of the Bank rest in the volition and discretion of the trustees. The approval of the Governor to the acts of the trustees, in cases in which it is required, is clearly for the protection and the benefit of the depositors. Nowhere in the Act can any provision be found whereby opportunities are afforded to the officers of the Bank for improving their conditions of employment or the remuneration for their services. So far as these officers are concerned, they must submit to such terms and conditions of employment as to the trustees shall seem reasonable, unless perchance the Governor disapproves of them. On the other hand, the Industrial Code approached the relation of employers and employees from a different point of view. It is notorious that the constant antagonisms between employers and employees in industries proved detrimental to the public interest, and also inflicted grave hardships upon the parties themselves. Consequently the Code set up a public tribunal, to stand between the parties, and this Code deprived or was intended to deprive both employer and employee of their uncontrolled power of fixing remuneration and the conditions of employment. An overriding power was given to the tribunal: its orders and awards were to prevail over contracts (s. 47), and it was bound to secure a living wage (s. 43). Looked at from the point of view of the employees, the Code at last secured them a method of presenting their claims and obtaining an independent consideration of the reasonableness and justice thereof.

How is the Savings Bank Act inconsistent with this Code? The objects and powers of the two Acts are wholly different. One grants a power or capacity to employ and remunerate its officers, whilst the other gives jurisdiction to the Industrial Court to control and regulate that power and also the power and capacity of every employer and employee to dictate the conditions of employment and remuneration in an industry. It would be impossible, I should think, to apply the maxim above mentioned to the Industrial Code if it had simply provided for the settlement of industrial disputes. If the limitation of the Code to disputes, to industrial war, repels the application of the maxim, then it is difficult, I think, to say that the extension of the Code to industrial matters generally, to industrial war and to industrial peace alike, attracts the application of the maxim. If the subject matter of the Code would not in the one case be inconsistent with the Savings Bank Act as a fixation of wages and conditions, then it seems to me equally clear that it could not be so in the other case.

In my opinion the Savings Bank Act did not direct its attention to the subject matter dealt with by the Industrial Code, and made no provision for dealing with the mischief which it was the object of that Code to remedy. That mischief was, as I have indicated, the uncontrolled and arbitrary power of employer and employee in relation to employment in industries. The Code established a public tribunal to regulate and control that power, and to do justice between the parties. Some aid is given to this view in the provisions of Part II., Division VIII., of the Code-"Lock-outs and Strikes." It would be somewhat anomalous to prohibit employees in industry from using the only weapon they possess for improving their conditions, namely, a strike, and then fail to give them the benefit of the Code. But such, if the view I take of the case be wrong, would, I think, be the necessary result of Division VIII., coupled with the definitions in the interpretation clause, s. 5.

Two further observations I desire to make: one, that the awards or orders of the Industrial Court would not be subject to the approval of the Governor. The provisions of the Code override, in my opinion, those of the Savings Bank and give of themselves efficacy and force to those awards and orders (see ss. 48 and 51). The other, that the officers of this Bank can be brought within the provisions of the Industrial Code if both Houses of Parliament pass a resolution approving of the inclusion of the Savings Bank in the definition of employer (see interpretation clause, s. 5, "Employer," (b) (VII.)). This, I think, is another reason for concluding that the Code is not inconsistent with the Savings Bank Act. I do not wish to say that the Bank ought to be brought within the provisions of the Code. I merely point out the power that exists. Whether that power should or should not be exercised in the circumstances of this case, is a matter entirely for the Houses of Parliament.

The appeal ought to be allowed.