BANK OFFICIALS' ASSOCIATION (SOUTH AUSTRALIAN BRANCH) v SAVINGS BANK OF SOUTH AUSTRALIA

32 CLR 276
1923 - 0606A - HCA

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(Judgment by: KNOX CJ)

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

Court:

Judges:
Knox CJIsaacs 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

Hearing date: 6 March 1923; 7 March 1923; 8 March 1923
Judgment date: 6 June 1923

MELBOURNE

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Judgment by:
KNOX CJ

This is an appeal by special leave from an order of the Supreme Court of South Australia directing that a writ of prohibition should issue, directed to the President and Deputy President of the Industrial Court of South Australia, prohibiting them from proceeding in a matter in that Court respecting the salaries and conditions of service of officers of the Savings Bank of South Australia, wherein the present appellant was a party and wherein it was ordered by the Industrial Court that the said Bank be summoned to appear as a party.

The question for decision is whether the Industrial Court has power under the Industrial Code 1920 to make any award binding on the Bank or on the trustees.

The jurisdiction of the Industrial Court was attacked on two grounds, namely,

(1)

that the Industrial Code 1920 does not bind the Crown and that the Industrial Court has therefore no power to override or take away the rights of the Governor in Council under the Savings Bank Act;

(2)

that the relationship between the trustees of the Bank and its employees was regulated by the Savings Bank Act and that in accordance with the maxim Generalia specialibus non derogant the Industrial Code should not, in the absence of any provision expressly relating to the Bank, be construed as derogating from, repealing or altering the provisions contained in the Savings Bank Act concerning that relationship.

In the view which I take of the case it is unnecessary to decide whether the first of these propositions is well founded, and I proceed to consider the second.

The maxim relied on by the appellant has been expounded and applied in many cases. I refer to three in which the scope of the rule and the conditions in which it should be applied have been laid down by the highest authority. In Barker v Edger ^[F1] Lord Hobhouse speaking for the Judicial Committee said:

"When the Legislature has given its attention to a separate subject, and made provision for it, the presumption is that a subsequent general enactment is not intended to interfere with the special provision unless it manifests that intention very clearly."

This statement was referred to with approval by Viscount Cave in Blackpool Corporation v Starr Estate Co; ^[F2] and in the same case ^[F3] Viscount Haldane referred to the rule as "a rule of construction which has been repeatedly laid down and is firmly established," and expressed the rule in the following terms:

"Wherever Parliament in an earlier statute has directed its attention to an individual case and has made provision for it unambiguously, there arises a presumption that if in a subsequent statute the Legislature lays down a general principle, that general principle is not to be taken as meant to rip up what the Legislature had before provided for individually, unless an intention to do so is specially declared. ... Individual rights arising out of individual treatment are presumed not to have been intended to be interfered with unless the contrary is clearly manifest."

In Seward v The Vera Cruz ^[F4] the Lord Chancellor said:

"Now if anything be certain it is this, that where there are general words in a later Act capable of reasonable and sensible application without extending them to subjects specially dealt with by earlier legislation, you are not to hold that earlier and special legislation indirectly repealed, altered, or derogated from merely by force of such general words, without any indication of a particular intention to do so."

The questions for consideration may be stated as follows:

(1)

Is the Savings Bank Act special legislation within the meaning of the rule?

(2)

Is the Code a general enactment within the meaning of the rule?

(3)

Would the full exercise of the powers conferred on the Industrial Court by the Code conflict with or derogate from the full exercise of the powers conferred on the trustees and the Governor by the Savings Bank Act?

(4)

Can the Code be given reasonable and sensible interpretation without extending it to the subject matter dealt with by the Act?

In order that the maxim may be applied all these questions must be answered in the affirmative.

(1) The relevant provisions of the Savings Bank Act 1875 are contained in ss. 7, 8, 9, 10, 11, 12 and 13. The effect of ss. 7-11 is summarized by Murray C.J. in his reasons for judgment as follows: ^[F5]

"To secure economical management the salaries of officers, clerks and servants were made subject to the approval of the Governor in Council, but, as against this, to encourage faithful service, certain advantages were held out to the Bank's employees. After a certain number of years' service they might be declared to be on the fixed establishment of the Bank, which gave them the right on death, or retirement for any cause other than misconduct or pecuniary embarrasment, after being on the establishment for twenty years and attaining sixty years of age, to receive one month's salary for every year they had been on the establishment (s. 8). Their salaries were protected against creditors (s. 9), and they were given the expectation, which would no doubt be granted as a matter of course, of receiving three weeks' leave of absence for recreation, and up to three months' leave of absence in case of illness, or other pressing necessity, in each year (s. 10), and, if on the fixed establishment, leave of absence for twelve months on half salary, or six months on full salary, after ten years' continuous service, and for twelve months on full salary, after twenty years' continuous service (s. 11)."

Sec. 12 provides that all questions arising respecting leave of absence or retiring allowances shall be settled by the trustees, whose decision shall be final. Section 13 empowers the trustees to make general rules for the guidance, control and information of agents, accountants, clerks and other officers, and requires that such rules shall be

(a)

certified by the Attorney-General to be in conformity with law,

(b)

approved by the Governor and

(c)

after such approval laid before Parliament.

It provides further that such rules, if not disallowed by either House of Parliament, shall have the same force and efficacy as if inserted in the Act. These provisions, in my opinion, authorize the trustees, with the approval of the Governor and, where required, of the Attorney-General, not only to appoint officers and fix the salaries to be paid to them, but to define by general rules all the conditions of employment so far as such conditions are not regulated by the Act itself; and give to general rules duly made and approved the same force and efficacy as if they had been inserted in the Act. Secs. 7-12 (inclusive) deal exclusively with the relationship between the Bank and its employees, their appointment and conditions of employment. Section 13 deals with the same subject matter among others. In these circumstances I think it is clear that the contracts of service between the Bank and its employees and the general conditions of their employment received special and individual attention at the hands of Parliament in the Savings Bank Act of 1875; that Parliament directed its attention to this individual case and provided for it, and that that Act must be regarded as special legislation within the meaning of the rule.

(2) In my opinion it is clear that the Industrial Code of 1920 is a general enactment within the meaning of the rule. It empowers the Industrial Court to fix the wages and conditions of employment of every person in South Australia who is employed whether on wages or piece-work rates by any person or corporation in any business, trade, manufacture, or calling carried on by way of trade or for purposes of gain (except agriculture); or by the corporations or bodies of a public nature mentioned in sub-clause (b) of the definition of "employer" contained in s. 5, and by sub-s. VII. of that sub-clause it is capable of extension by resolution of both Houses of Parliament to the employees of any other person, firm, company or corporation. Indeed, if this be not a general enactment, I find it difficult to conceive what could answer that description.

(3) Under the Savings Bank Act the trustees with the approval of the Governor may lawfully fix a maximum salary for a given position. Under the Industrial Code the Court may lawfully award that the minimum salary to be paid to an officer occupying that position shall be a sum greater than the maximum so fixed. The award is given binding force by the Code, and by s. 47 (d) is to prevail over any existing contract of service. The Industrial Court may, if the Code gives it jurisdiction over the trustees and officers of the Bank, alter in one direction or the other every condition of employment of such officers prescribed by the Act or by the rules duly made under it, and its award must be obeyed however inconsistent with the decisions of the Governor in Council or the rules made under that Act, which are declared to have the force of law. In these circumstances I think it is impossible to doubt that the Code if construed as applying to the respondent derogates from the earlier Act. It is, of course, common ground that no express reference to the Savings Bank or to the trustees is to be found in the Code.

(4) I agree with the observation of Poole J. in the Supreme Court, that to this question there can be but one answer-an affirmative. Indeed, no argument to the contrary was addressed to us, or, so far as appears, to the Supreme Court.

For these reasons I am of the opinion that the appeal fails and should be dismissed.