THE UNITED ENGINEERING WORKERS UNION, Appellants and K. W. DEVANAYAGAM (Preside

065-NLR-NLR-V-69-THE-UNITED-ENGINEERING-WORKERS-UNION-Appellants-and-K.-W.-DEVANAYAGAM-Preside.pdf


The United Engineering Workers Union v. Devanayagam
289
[Privy Council]
Present: Viscount Dilhorne, Lord Guest, Lord Devlin,Lord Upjohn, and Lord PearsonTHE UNITED ENGINEERING WORKERS UNION, Appellants,and K. W. DEVANAYAGAM (President, Eastern ProvinceAgricultural Co-operative Union Ltd.],Respondent.Privy Council Appeal No. 20 of 1966S. C. 21 of 1962—Labour Tribunal Case No. 6/9091
Labour Tribunals—Constitutional validity of their appointment by the Public ServiceCommission and not by the Judicial Service Commission—Duties and powers ofLabour Tribunals—Power to make a “just and equitable order ”—Effect—“Industrial dispute”—“ Judicial officer ”—“ Judicial power ”—“ Relief orredress ”—“ Natural justice —Courts Ordinance, s. 3—Civil Procedure Code,ss. 5, 6—Ceylon (Constitution) Order in Council, 1046, ss. 3, 52, 53, 55 (1) (5),57, 5S, 60—Industrial Disputes Regulations, Regulation 10 (2)—IndustrialDisputes .4c< (Cap. 131), as amended by Act No. 62 of 1057, ss. 8, I5A, 17,10,22 (4), 24 (1), 26; 31A, 31B(1) (2) (3) (4) (5), 31C (1), 31D (1) (2),33 (/), 46 (4), 48.
B’l'l by Viscount Dilhorne, Loud Upjohn and Lord Pearson (LordGuest and Lord Devlin dissenting):—
The President of a Labour Tribunal does not hold a judicial office within themeaning of those words in section 55 (5) of the Ceylon (Constitution) Order inCouncil, 1946, and, therefore, does not require to be appointed by the JudicialService Commission.
In determining whether or not the office of President of a Labour Tribunal isa judicial office, it is necessary to consider all the functions such a tribunalmay be required to discharge. It is one office. It is necessary also to haveregard to the test adumbrated by Lord Simonds in Labour Relations Board ofSaskatchewan v. John East Iron Works (1949 A. C. 134) by considering whetherthe nature of tho matters Labour Tribunals have to deal with makes it desirablethat their Presidents should have the same qualifications as judges of theordinary courts.
The powers and duties of an arbitrator under the Industrial Disputes Act, ofan Industrial Court and of a Labour Tribunal on a reforence of an industrialdisputo are the same. “ In relation to an arbitration, the arbitrator musthear the evidence tendered by the parties. So must a Labour Tribunal on areference. An Industrial Court has to hear such evidence as it considersnecessary. In each case the award has to be one which appears to thearbitrator, the Labour Tribunal or the Industrial Court just and equitable.No other criterion is laid down. They are given an unfettered discretion todo what they think is right and fair. ”
In an application under section 31 B (1) (b) of the Industrial Disputes Act inrelation to “ the question whether any gratuity or other benefits are due ” to aworkman, the words “ are due ” do not mean “ are legally due In such acase the tribunal can order what it considers to be just and equitable even
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though that ia in excess of the workman’s legal rights. Section 3IB (1) (6) mustbe read with sections 3IB (4) and 31C (1). Section 31B (1) (6) lends no supportto the view that on an application a Labour Tribunal has to determine legalrights. Richard Pieris ds Co. v. Wijesiriwardena (02 N. L. R. 233) and TheElectric Equipment and Construction Co. t>. Cooray (63 N. L. R. 164) overruled.
“ While the matter is not free from difficulty and as has been said, no singletest can be applied to determine whether an office is judicial, in their Lordships'opinion the office of President of a Labour Tribunal is not a judicial officewithin the meaning of those words in the Constitution Order in Council. Theirreasons for this conclusion may be summarised as follows :—
Labour Tribunals were established for the purposes of the Act of 1950,namely to provide for the prevention, investigation and settlement ofindustrial disputes. The Act making provision for them did not say thatthey were to perform the functions of a court in giving effect to the legalrights of workmen in connection with their employment.
On a reference of an industrial dispute, a Labour Tribunal has the samepowers and duties as an arbitrator under the Act. It was rightly heldby the Supreme Court that when so acting, a Labour Tribunal was notacting judicially and that an arbitrator and a member of an IndustrialCourt did not hold judicial offices.
On an application, the powers and duties of a Labour Tribunal do notdiffer from those of an arbitrator and an Industrial Court or a LabourTribunal on a reference in any material re3poct. A Labour Tribunal, anarbitrator and an Industrial Court are required to do what is ju3t andequitable and it is expressly provided that a Labour Tribunal whendealing with an application is not restricted by the terrn3 of the contractof employment in granting relief or redress.
In the course of hearing an application a Tribunal may be informed ofthe terms of the contract but it is not restricted to giving effect to legalrights.
The similarity of the powers and duties of a Labour Tribunal both inrelation to a reference and to an application points strongly to theconclusion that its functions are not of a different character on anapplication to those on a reference or to those of an arbitrator or anIndustrial Court.
-5. By s. 31B (2) inserted into the Act of 1950 by the amending Act of 1957a Labour Tribunal was required to defer making an order on an applica-tion if it appeared that the subjer t-matter of the application was underdiscussion with the employer until the discussion was concluded or theMinister referred the matter to an arbitrator, or to an Industrial Courtor a Labour Tribunal. A new sub-section wa3 substituted for this sub-section by the Industrial Disputes (Amendment) Act No. 4 of 1902.
S.31B (3) introduced by the amending Act of 1957 further providesthat a Tribunal shall suspend its proceedings-on an application if itappears that the subject-matter of the application is similar to or identicalwith a matter constituting or included in an industrial dispute intowhich an inquiry under the Act is held, or, if the facts affecting theapplication are facts affecting any proceedings under any other law. Thissub-section further provides that upon the conclusion of the inquiry or ofthe proceedings under any other law, the tribunal should resume itsproceedings and in making its order on the application should haveregard to the award or decision in the inquiry or other proceedings.
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These two sub-sections show that, far from being established in sub*stitution for or as an alternative to the ordinary courts. Labour Tribunalswere created as part of the machinery for preventing and settlingindustrial disputes. It would indeed be novel if proceedings in a court oflaw were required by law to be suspended during discussions between theparties to those proceedings and if a court of law was required to haveregard to awards made in respect of an industrial dispute by non-judicialpersons, when making its order on an application ; so novel, indeed, os tolead to the conclusion that Labour Tribunals were not intended to, arenot required to and do not act as courts of law.
Applying the test adumbrated by Lord Simonds in the Labour RelationeBonrd case (supra), the matters with which a Labour Tribunal may berequired to deal both on a reference and on an application, do not makeit desirable that Presidents of Labour Tribunals should have the samequalifications as those which distinguish the judges of the superior orother courts.”
Per Lord Goest and Lord Devtjn (dissenting)—The orders which theLabour Tribunal is to make under Part IVA of the Industrial Disputes Act arejudgments and not administrative orders. “ Since the whole function of theTribunal under Part IVA is to consider applications and hold inquiries whichare to end in judgments, it must follow that the Tribunal is a judicial Tribunaland that the person constituting the Tribunal is a judicial officer.”
A-PPEAL, with special leave, from a judgment of the Supremo Courtreported in (1965) 68 N. L. R. 73.
On 17th September 1962 a Labour Tribunal ordered the respondent topay three months salary to a member of the appellant Union, and toreinstato him in employment. When the respondent appealed to theSupreme Court, the order of the Labour Tribunal was set aside solely onthe ground that the Labour Tribunal had no jurisdiction to make theorder as it had not been appointed by the Judicial Service Commission.The appellant then preferred the present appeal to the Privy Councilwith special leave.
N. Salyendra, with N. Chinnivasagam, for the appellants.
E. F. N. Graliaen, Q.C., with Walter Jayawardena and Mark Fernando,for the respondent.
Cur. adv. vult.
March 9, 1967. (Majority Judgment delivered by Viscount Dilhobne)—
On 17th September 1962 a Labour Tribunal at Colombo ordered therespondent to pay three months salary to one Rasamonickam, a memberof the appellant union, and to reinstate him in employment.
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The respondent petitioned the Supreme Court of Ceylon that this ordershould be set aside. The matter came before T. S. Fernando J. whopermitted the respondent to argue that the Labour Tribunal had nojurisdiction to make the order as it had not been appointed by theJudicial Service Commission. T. S. Fernando J. reserved the matterfor consideration by more than one judge and it wa3 heard by a benchof five judges who by a majority of three to two allowed the appealon this ground. The appellant now appeals with special leave.
Part VI of the Ceylon (Constitution) Order in Council 1046 is headed“ The Judicature ”. In this Part, s. 52 provides that the Chief Justiceand Puisne Judges and Commissioners of Assize aie to be appointed bythe Governor-General and are to hold office during good behaviour. S. 53provides for the creation of a Judicial Service Commission which is toconsist of the Chief Justice, a Judge of the Supreme Court and one otherperson who is or has been a Judge of the Supreme Court and w hich bys. 55 is made responsible for the appointment, transfer, dismissal anddisciplinary control of judicial officers. S. 55 (5) defines a judicial officeras the holder of any judicial office but states that it does not include aJudge of the Supreme Court or a Commissioner of Assize. They areexcluded from the definition for they are appointed not by the JudicialService Commission but by the Governor-General. S. 50 makes it anoffence to seek to influence the decision of the Judicial Service Commissionor ol’ a member of it.
Part VII of this Order in Council is headed “ The Public Service ”.S. 57 in this Part provides that save as otherwise provided in the Order.“ every person holding office under the Crown in respect of the Govern-ment of the Island shall hold office during Her Majesty’s pleasure’'. S. 58provides for the establishment of a Public Service Commission which bys. 60 is made responsible for the appointment, transfer, dismiss tl anddisciplinary control of public officers (i.e., holders of paid offices, otherthan judicial offices, as servants of the Crown in respect of the Governmentof the Island ; s. 3).
Thus the Constitution Order in Council provides for the independenceof the Ceylon civil service from the Executive and for the independenceof the Judicature from the Executive and from the civil service.
No guidance is directly given by the Order in Council as to the meaningof the words “ judicial officer” other than the definition in s. 5of5) but itis apparent from the Order in Council that holders of judicial offices areto be regarded as members of the Judicature and not of the civil service.
The Presidents of Labour Tribunals have always been appointed bythe Public Service Commission. If the majority of the Supreme Courtof Ceylon »re right in holding in this case that they are judicial officeraand so should have been appointed by the Judicial Service Commission,
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then it follows that the acts and orders of the Labour. Tribunals werewithout jurisdiction and so invalid.
At the time the Order in Council was mad* , civil and criminal justicein Ceylon was administered in the Supreme Court, District Courts, theCourts of Bequests and Magistrates' Courts (See Courts Ordinance Cap :6. s. 3). Those discharging judicial functions in these courts are clearlyholders of judicial offices but it does not follow that they are the onlyholders of such offices for the legislature may create new ones. TheBribery Amendment Act 1958 created Briber}* Tribunals for the trial ofpersons prosecuted for bribery and in The Bribery Commissioner v.Ranasivyhe 1 it was held that the members of a Bribery Tribunal heldjudicial offices and that, as they had not been appointed by the JudicialService Commission, they had no power to try a person accused ofbribery and to sentence him to imprisonment.
There is no single test that can be applied to determine whether aparticular office is a judicial one. In Labour Relations Board of iSas-katchewan v. John Ea-st Iron Works2 the question was whether thatLabour Relations Board exercised judicial power and, if so, whether inthat exercise it was a tribunal analogous to a superior, district or countycourt. I,ord Simonds, delivering the judgment of the Board, stated thattheir Lordships without attempting to give a comprehensive definition ofjudicial power, accepted the view that its broad features were accuratelystated by Griffiths C. J. in Huddart, Parker & Co. Proprietary Lid. v.Moorhead3, which was approved by the Privy Council in Shell Co. ofAustralia Ltd. t Federal Commissioner of Taxation 4. Lord Simonds wenton to say at page 149 :
“ Nor do they doubt, as was pointed out in the latter case, thatthere are many positive features which are essential to theexistence of judicial power, yet by themselves are not conclusive ofit, or that any combination of such features will fail to establish ajudicial power if, as is a common characteristic of so-calledadministrative tribunals, the ultimate decision may be determinednot merely bv the application of legal principles to ascertained factsbut by considerations of policy also.”
Earlier he had said at page 148 :
V Nor can a more difficult question be posed (but their Lordshipscan find no easier test) than to ask whether one court is ‘ analogous ’to another.”and at page 151 :
“ It is as good a test as another of ‘analogy ’ to ask whether thesubject-matter of the assumed justiciable issue makes it desirablethat the judges should have the same qualifications as those whichdistinguish the judges of the superior or other courts.”
That test appears an appropriate one to apply in relation to the questionnow before the Board.
1 (796.5) A. O. 172; 66 N. L. B. 73.»(1008) 8 C. L. R. 330, 357.
* (1949) A. C. 134.*(1931) A. C. 275.
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In Shell Co. of Australia v. Federal Commissioner of Toration (supra) theBoard approved the definition of Griffiths C. J. in Huddart, Parker daCo. v. Moorhead (supra) when he said :
“ I am of opinion that the words * judicial power ’ as used in s. 71of the Constitution mean the power which every sovereign authoritymust of necessity have to decide controversies between its subjects,or between itself and its subjects, whether the rights relate to life,liberty or property. The exercise of this power does not begin untilsome tribunal which has power to give a binding and authoritativedecision (whether subject to appeal or not) is called upon to takeaction.”
and in relation to this, Lord Sankey L. C. delivering the judgment of theBoard, enumerated a number of negative propositions on this subject (atpage 297) :
A tribunal is not necessarily a court in this strict sensebecause it gives a final decision. 2. Nor because it hears witnesseson oath. 3. Nor because two or more contending parties appearbefore it between whom it has to decide. 4. Nor because itgives decisions which afiect the right!* of subjects. 5. Norbecause there is an appeal to a Court.-^6. Nor because it is abody to which a matter is referred by another body.”
The holder of a judicial office exercises judicial power but the fact thatsome judicial power is exercised does not establish that the office isjudicial. As Tambiah J. pointed out in his dissenting judgment in thiscase, there were in Ceylon at the time the Constitution Order in Councilwas made, a number of persons and tribunals performing acme judicialfunctions and those persons and the members of those tribunals have notbeen regarded as judicial officers. He gave as one instance the DivisionalRegistrar under the Kandyan Marriage and Divorce Act who, apart fromhis other duties, acts as a judge in contested divorce proceedings betweenKandyans.
To determine whether the office of President of a Labour Tribunal is ajudicial office, it is necessary to c< >nrider the powers, functions and dutiesentrusted to those tribunals and to have regard to the test adumbratedby Lord Sinionds in the Labour Relations Board case (supra) by consideringwhether the nature of the matters those tribunals have to deal with makesit desirable that their Presidents should have the same qualifications asjudges of the ordinary courts.
The long title of the Industrial Disputes Act (Cap. 131) No. 43 of 1950reads as follows :
“ An Act to provide for the Prevention, Investigation andSettlement of Industrial Disputes, and for matters connectedtherewith and incidental thereto.”
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That Act provided for the reference of industrial disputes to arbitrationor to an Industrial Court. It was amended by the Industrial Disputes(Amendment) Act No. 62 of 1967. By the amending Aet the Com-missioner of Labour was given power to refer an industrial dispute to aLabour Tribunal as an alternative to referring it to arbitration and theMinister was given power to refer a minor industrial dispute to a LabourTribunal as an alternative to referring it to arbitration or to an IndustrialCourt. On any 3ueh reference the Tabour Tribunal has the same powersand duties as an arbitrator under the Aet (s. 15A).
An industrial dispute was defined by s. 48 as maanirg any dispute ordifference between employers and workmen or between workmen andworkmen connected with the employment or non-employment, or theterms of employment or with the conditions of labour of any person. TheAct of 1957 amended this definition by adding connected with thetermination of the services or the reinstatement in service of any personand in 1962 a further amendment was made which made it clear that thedefinition included a dispute between an employer and a workman.
An industrial dispute may arise over a number of matters connectedwith employment. In many cases, it may be the majority of cases, thedispute will be over wage rates and matters connected therewith. Inother cases it may be over the dismissal of a workman or workmen and itis clear that an industrial dispute within the meaning of the Act mayarise even though the employer has done no more than exercise his legalrights. Satisfactory provision for the settlement of industrial disputesmust oover all industrial disputes whether they arise over wages or onaccount of the dismissal of a workman or for other causes.
S. 17 provides that when a dispute has been referred to arbitration bythe Commissioner of Labour or the Minister, the arbitrator
“ shall make all such inquiries into the dispute as he mayconsider necessary, hear such evidence as may be tendered by theparties to the dispute, and thereafter make such award as may appearto him just and equitable.”
S. 24 (1) similarly provides that it is the duty of an Industrial Court(which consists of one or three persons : s. 22 (4)),
“ to which any dispute, application or questionis referred
or made under this Act to make all such inquiries and
hear all such evidence, as it may consider necessary, and thereafterto take such decision or make such award as may appear to thecourt just and equitable.”
The powers and duties of an arbitrator under the Act, of an IndustrialCourt and of a Labour Tribunal on a reference of an industrial disputeare thus the same. In relation to an arbitration, the arbitrator must
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hear the evidence tendered by the parties. So must a Labour Tribunalon a reference. An Industrial Court has to hear such evidence as itconsiders necessary. In each case the award has to be one which appearsto the arbitrator, the Labour Tribunal or the Industrial Court just andequitable. No other criterion is laid down. They are given an unfettereddiscretion to do what they think is right and fair.
S. 33 (1) of the Act provides that any award under the Act, whethermade by an arbitrator, an Industrial Court or since the Act was amendedin 1957, by a Labour Tribunal may contain decisions on a variety ofmatters, including decisions that wages shall be paid by an employer inrespect of a period of absence from work by reason of a strike orlock-out.
S. 19 provides that the award of an arbitrator is to be binding on thepersons named therein and that the terms of the award are to be impliedterms in the contract of employment between the employers andworkmen bound by the award. S. 26 similarly prescribes that everyaward of an Industrial Court is to be binding on the persons referred totherein and that the terms of the award are to be implied terms in thecontract of employment.
The fact that the terms of the award are to be implied terms of thecontract of employment led Sansoni C.J. with whose judgment T. S.Fernando J. agreed, and H. N. G. Fernando S.P.J. to the conclusion thatthe awards were only intended to have effect in the future. H. N. G.Fernando S.P.J. said that they were “ concerned not with the reparationof wrongs but instead with the determination of future terms andconditions.” Their Lordships are unable to agree with this. Where theterms of an award relate to wages or holidays it is no doubt appropriatethat the terms should be implied terms of the contract of service but theindustrial dispute may be over something that has happened in the pastand something unrelated to the future, as, for instance, over the questionwhether wages should be paid in respect of a period of absence from workdue to a strike or a lock-out or over the dismissal of a workman who hasreceived all to which he is legally entitled. S. 33 (1) ex presslv givespower to order the payment of wages for a period of absence due to astrike or a lock-out and neither an arbitrator, nor an Industrial Court nora Labour Tribunal on a reference is restricted to awarding a dismissedworkman no more than is legally duo to him for they may consider thathis legal rights give him less than is just and equitable.
It would therefore appear that the provision in ss. 19 and 26 that theterms of the award are to be implied terms of the contract of employmentshould be read with some qualification, for the terms of some awardsmay be quite inappropriate for treatment as implied terms of thecontract of service.
Now it is agreed that an arbitrator under the Act, a member of anIndustrial Court and the President of a Labour Tribunal when a dispute
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is referred to it do not hold a judicial office. The three Judges whoformed the majority in the Supreme Court in this case, Sansoni C.J.,H. N. G. Fernando S.P.J. and T. S. Fernando J. so held.
If on the examination of the powers and functions of a LabourTribunal, they are found not to differ in any material respect from thoseof an arbitrator or of an Industrial Court, then it is to be inferred that thelegislature did not intend to create and did not create when it providedfor the establishment of Labour Tribunals, a different kind of offico tothat held by arbitrators and the members of an Industrial Court.
The amending Act of 1957 inserted Part IVA into the Act of 1950, andit is now necessary to consider the terms of the sections contained in thatpart.
The first section in it, s. 31A reads as follows :
“ There shall be established for the purposes of this Act suchnumber of Labour Tribunals as the Minister shall determine. EachLabour Tribunal shall consist of one person.”
Regulation 10 (21 of the Industrial Disputes Regulations made unders. 39 of the 1950 Act provides that the person constituting a labourtribunal is to be designated President of the Tribunal.
It was thus for the Minister to decide how many tribunals there shouldbe and then, for the Public Service Commission or the Judicial ServiceCommission to make the necessary appointments. The tribunals wereestablished “ for the purposes of this Act ’ t.e. the Act of 1950. Theywere therefore intended to be part of the machinery for the prevention,investigation and settlement of industrial disputes. The legal rights andobligations of employers and workmen can be determined in the ordinarycourts. If it had been the intention of the Legislature to create judicialtribunals in substitution for or as an alternative to the ordinary courtsfor the determination of legal rights, it is to be expected that thestatutory provision creating them would have indicated that. No suchinference is to be drawn from the language of s. 31A and the statement inthat section that the tribunals were to be established for the purposes ofthe Act indicates that that was not the intention of the legislature. Thathowever is not conclusive for the legislature may have provided for thecreation of a judicial office by attaching to that office powers and dutiesof a judicial character.
S. 31B (1) introduced into the 1950 Act by the amending Act of 1957reads as follows :
*' A workman or a trade union on behalf of a workman who is a
member of that union, may make an application in writing to a Labour
Tribunal for relief or redress in respect of any of the following matters :
the termination of his services by his employer ;
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the question whether any gratuity or other benefits are due tohim from his employer on termination of his services and theamount of such gratuity and the nature and extent of any suchbenefits;
snch other matters relating to the terms of employment or theconditions of labour as may be prescribed.”
The right given by this section to a workman and to his union actingon his behalf to apply to a Labour Tribunal does not depend on theexistence of an industrial dispute and it is exercisable without theintervention cf the Commissioner of Labour or the Minister.
The power to prescribe other matters relating to employment andconditions of labour in relation to which an application can be made, hasnot been exercised. If it was exercised to the full, then it would seemthat a Labour Tribunal could hear applications in respect of all, orsubstantially all, the matters that might form the subject of an industrialdispute. The fact that it is at present restricted to hearing applicationsunder s. 31B (1) relating to the termination of employment and comingwithin (n) or (6) above is of no significance in relation to the questionwhether a tribunal when dealing with such applications exercises judicialpower with the result that, if this was the only function of such a tri-bunal, the President of it is to be regarded as the holder of a judicialoffice.
It was strongly argued on behalf of the respondent that s. 31B (1) onlygives a workman the right to apply if he has a cause of action i.e. if he isalleging a breach by his employer of the contract of service or of someobligation imposed by law on his employer. It was thus argued that aLabour Tribunal when dealing with such applications discharged thefunctions of a court of law and was therefore to be regarded as analogousto a court.
If that were the case, one would not expect access to the tribunal to belimited to one party to a dispute arising out of employment.
In their Lordships’ view this argument is not well founded and it is notright to say that a workman can only apply if he has a cause of action.
In this connection regard must be had to two other sub-sections inPart IVA, s. 31B (4) and s. 31C (1).
S. 31B (4) reads as follows :
“ Any relief or redress may be granted by a Labour Tribunal toa workman upon an application made under sub-section (1)notwithstanding anything to the contrary in any contract of servicebetween him and his employer.”
Sansoni C.J. in the course of his judgment in this case, said that hethought that this provision gave the tribunal power to give relief againstany harsh terms the emnlover might have imposed in the contract of
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service. H. N. G. Fernando S.P.J. thought that this sub-section wasintended, to overcome provisions in a contract excluding an application toa tribunal. While this provision enables a tribunal to disregard harshterms in the contract and terms excluding an application to a tribunal, itis not limited to that. It clearly provides that the relief or redress thata tribunal may grant is not to be restricted in any way by the terms of thecontract.
S.31C (1) defines the powers and duties of a tribunal on an applicationand provides that it:
“ shall be the duty of the tribunal to make all such inquiries intothat application and hear all such evidence as the tribunal mayconsider necessary, and thereafter make such order as appears tothe tribunal just and equitable.”
The similarity between the wording of s. 31C (l)and that of ss. 17 and24 is significant and striking. An arbitrator by s. 17 and an IndustrialCourt by s. 24 are required to make such an award as appears just andequitable. A Labour Tribunal is required to do the same on a reference(8. ISA) and also by s. 31C (1) on an application. The same meaningmust be given to-the words “ just and equitable ’’ in these sections.Ss. 17 and 24 give an arbitrator and an Industrial Court unfettereddiscretion to do what they consider to be right and fair. S. 31C (1) givesa similar discretion to a Labour Tribunal on an application and s. 31B (4)makes it clear that in doing so it is not restricted by the terms of thecontract.
S. 31B (1) is the gateway through which a workman must pass to gethis application before a tribunal but it is ss. 31B (4) and 31C (1) whichstate the powers and duties of a tribunal on an application.
In support of his argument that a workman could only apply if he hada cause of action, counsel for the respondent drew attention to the factthat the words “ relief ” and “ redress ” are to be found in ss. 5 and 6 ofthe Civil Procedure Code which respectively define an action in the civilcourt as “ a proceeding for the prevention or redress of a wrong ” and an“ application to a Court for relief or remedy obtainable through theexercise of the Court’s power or authority ”. It does not, however,follow that the relief or redress obtainable on an application is obtainableonly where a workman has a cause of action or that it is limited to reliefor redress in respect of a breach of contract or of an obligation imposedby law. Ss. 31B (4) and 31C (1) show that that is not so.
Counsel for the respondent particularly relied on the wording ofs. 31B (1) (b). That provides that an application can be made in relation
to “ the question whether any gratuity or other benefits are due”.
He contended that the words “ are due ” mean “ are legally due ” and insupport of this contention he cited RichardPieris & Co.v.Wijesiriwardena *,where T. S. Fernando J. held that they meant legally due. In that casethe respondent was not represented and so the contrary view waft not
> (I960) 62 N L. R. 233.
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argued. In The Electric Equipment and Construction Co. v. Cooray1H. N. G. Fernando J. followed the Pieris case and set aside an order of aLabour Tribunal for the payment of two months’ wages in lieu of noticeon the ground that the workman was only entitled to one month’s wagesin lieu of notice under his contract of employment and held that a LabourTribunal could only award what was legally due. In neither of thesecases were ss. 31B (4) and 31C (1) referred to. If these decisions areright, then full effect cannot be given to these sub-sections, for instead ofbeing free to order what it considers just and equitable in the way ofrelief or redress, a tribunal is bound by the terms of the contract andonly ablo to order payment of what is legally due.
In Shell Co. of Ceylon Ltd. v. Pathirana 2 Abeyesundere J. held that aLabour Tribunal had jurisdiction on an application, under s. 31B (1), toorder the payment of six weeks’ wages in lieu of notice instead of twoweeks’ •wages which had been offered to him in accordance with the termsof the contract of service. His attention does not appear to have beendrawn to the decisions in the Pieris case and in the Electric Equipmentcase.
S. 31B (1) docs not say that a workman can apply for relief in respectof the wrongful termination of his services. It merely says that he canapply in respect of the termination of his services. The omission of theword “wrongful” is significant. In their Lordships’ opinion thedecision in the Shell Co. case was right and the decisions in the Pieris andElectric Equipment cases were wrong.
If, as in their Lordships’ opinion is the case, a workman can apply forrelief or redress in respect of the termination of his employment evenwhen the termination is in accordance with the terms of his contract andnot in breach of them and the tribunal can order what it considers to bejust and equitable even though that is in excess of his legal rights, itwould be odd if the powers of a tribunal in respect of a gratuity or otherbenefits on the termination of his services, were limited to orderingpayment of what is legally due to him. S. 31B (1) (b) is curiously worded.It does not say that a workman can apply for a gratuity or other benefitslegally due to him but that he can apply in respect of the questionwhether they are due. The question is one for the tribunal to dotormineand, in the light of s. 31C (1) to decide on the basis of what appears toit just and equitable. If s. 31B (1) (b) stood alone then the words“ are due ” might be interpreted as meaning “ are legally due ” but thissub-section must be read with ss. 31B (4) and 31C (1) and reading it withthese sub-sections it is clear that the tribunal’s decision is not to bewhether a gratuity or other benefit is legally due but whether it is justand equitable that it should be paid. It is not whether it is legally duebut whether it ought to be paid that the tribunal is required to decide.
(196/) 63 N. L. R. 164.
'(1962) 64 N. L. R. 71.
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In their Lordships’ opinion s. 31B (1) (b) when properly construed lendsno support to the view that on an application a Labour Tribunal has todetermine legal rights.
Counsel for the respondent also relied on the fact that s. 31B (5) provides,that where a workman applies to a Labour Tribunal, he is debarred fromany other legal temedy. It does not, however, follow from the fact thatif he makes such an application and is consequently unable to sue in theCourts, that the Labour Tribunal in dealing with an application exercisesjudicial power. If he applies to a Labour Tribunal, he will get what theTribunal thinks just and equitable and he can apply even when there hasbeen no breach of contract. If he sues in the Courts he will have to showthat he has a cause of action and he can only get what is legally dueto him. It is not to be inferred from the fact that the legislature hasprevented a duplication of claims by a workman, that a Labour Tribunaldeals with an application as a judicial body.
It was also argued for the respondent that the fact that, although thedecision of a Labour Tribunal is made final by s.31D(l) and cannot becalled in question in any court, provision is made by s. 3 ID (2) for anappeal to the Supreme Court-on a question of law, shows that a Labour-Tribunal whon dealing with an application, acts as a court of law. This,in their Lordships’ opinion, is not a necessary inference from the provisionof a right of appeal on a question of law. Provision is made in theArbitration Acts for the determination of questions of law by the courtsbut arbitrators are not judicial officers.
Sansoni C. J., with whose judgment T. S. Fernando J. agreed, held thata Labour Tribunal was not acting judicially when dealing with anindustrial dispute referred to it but that it was acting judicially whendoaling with an application under s. 31B (1). It follows from his judgmentthat the Public Service Commission would be the right body to appoint thePresident of a Tribunal when that Tribunal was required to deal with anindustrial dispute but that the Judicial Service Commission would berequired to appoint him when it had to deal with applications.
In their Lordships’ view this cannot be right. Each Labour Tribunalmay have to deal with both industrial disputes and applications. EachLabour Tribunal is one tribunal with one member designated the President.Tho Act creating them lends no support to the view that the Presidentshould be appointed by a different body depending on the nature of thework coming before the Tribunal.
In determining whether or not the office of President is a judicial office,regard must be had to all the functions such a tribunal may be required todischarge. It is one office.
While the matter is not free from difficulty and as has been said, nosingle test can be applied to determine whether an office is judicial, in theirLordships’ opinion the office of President of a Labour Tribunal is not a
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judicial office within the meaning of those words in the Constitution Orderin Council. Their reasons for this conclusion may be summarised asfollows :•—■
Labour Tribunals were established for the purposes of the Act of
1950, namely to provide for the prevention, investigation andsettlement of industrial disputes. The Act making provision forthem did not say that they were to perform the functions of acourt in giving effect to the legal rights of workmen in connectionwith their employment.
On a reference of an industrial dispute, a Labour Tribunal has the
same powers and duties as an arbitrator under the Act. It wasrightly held by the Supreme Court that when so acting, a LabourTribunal was not acting judicially and that an arbitrator and amember of an Industrial Court did not hold judicial offices.
On an application, the powers and duties of a Labour Tribunal do
not differ from those of an arbitrator and an Industrial Court or aLabour Tribunal on a reference in any material respect. ALabour Tribunal, an arbitrator and an Industrial Court arerequired to do what is just and equitable and it is expresslyprovided that a Labour Tribunal when dealing with an applica-tion is not restricted by the terras of the contract of employmentin granting relief or redress.
In the course of hearing an application a Tribunal may beinformed of the terms of the contract but it is not restrictedto giving effect to legal rights.
The similarity of the powers and duties of a Labour Tribunal both
in relation to a reference and to an application points stronglyto the conclusion that its functions are not of a differentcharacter on an application to those on a reference or to thoseof an arbitrator or an Industrial Court.
By s. 31B (2) inserted into the Act of 1950 by the amending Act of
1957 a Labour Tribunal was required to defer makirg an order onan application if it appeared that the subject-matter of theapplication was under discussion with the employer until thediscussion was concluded or the Minister referred the matter toan arbitrator, or to an Industrial Court or a Labour Tribunal.
~ A new sub-section was substituted for this sub-section by theIndustrial Disputes (Amendment) Act No. 4 of 1962.
S. 31B (3i introduced by the amending Act of 1957 furtherprovides that a Tribunal shall suspend its proceedings on anapplication if it appears that the subject-matter of theapplication is similar to or identical with a matter constitutingor included in an industrial dispute into which an inquiryunder the Act is held, or, if the facts affecting the application are
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facts affecting any proceedings under any other law. Thissub-section further provides that upon the conclusion of theinquiry or of the proceedings under any other law, the tribunalshould resume its proceedings and in making its order on theapplication should have regard to the award or decision in theinquiry or other proceedings.
These two sub-sections show that, far from being establishedin substitution for or as an alternative to the ordinary courts,Labour Tribunals were created as part of the machinery forpreventing and settling industrial disputes. It would indeedbe novel if proceedings in a court of law were required by lawto be suspended during discussions between the parties to thoseproceedings and if a court of law was required to have regard toawards made in respect of an industrial dispute by non-judicialpersons, when making its order on an application ; so novel,indeed, as to lead to the conclusion that Labour Tribunals werenot intended to, are not required to and do not act as courtsof law.
6. Applying the test adumbrated by Lord Simonds in the LabourRelations Board case (supra) the matters with which a LabourTribunal may be required to deal both on a reference and on anapplication, do not make it desirable that Presidents of LabourTribunals should have the same qualifications as those whichdistinguish the judges of the superior or other courts.
Their Lordships will, for the reasons stated, humbly advise Her Majestythat this appeal be allowed and the case remitted to the Supreme Court ofCeylon to deal with the respondent’s appeal to the Court on questions oflaw. The respondent must pay the appellants’ costs of this appeal exceptfor the costs of the petition for special leave to appeal.
(.Dissenting Judgment by Lord Guest and Lord Devlin)—
We have the misfortune to differ from the conclusion of the majority ofour colleagues on the Board. This decision and others like it will affect thefuture shape of the law and in particular will help to determine whetherthe growing body of law which regulates industrial relations is to beadministered within the judicial or within the executive sphere. Wepropose therefore to state without going into much detail the basis ofour dissent.
It is commonplace that with respect to industrial relations thecommon law of master and servant has fallen into disuse. Disputesabout conditions of employment are not usually settled by the Courts inaccordance with the terms, express or implied, of the contract of service.Trade unionism could no doubt have used its increased bargaining powerto obtain more realistic and elaborate contracts of service within theframework of the old common law, but it preferred to use it to seekadvantages irrespective of contract and enforceable not by legal machinery
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but by the threat of the strike. The law has therefore had to make a newentry into the field of industrial relations. It has had to start again fromthe beginning, and, as in the field or international relations, has had tomake its way in by formulating methods of securing the peacefulsettlement of disputes.
As the Chief Justice has recorded, the law of Ceylon was late in enteringthe industrial field with the Industrial Disputes Act 1950. The Actset up a Commissioner with the function of promoting the settlementof industrial disputes. He was empowered to do so by means ofconciliation procedure and of arbitration when the parties agreed to submitto it. The Act provided also for the making and registration of collectiveagreements, whose terms were to become implied terms of the contract ofemployment between those employers and workmen who were covered byit. All these were voluntary procedures, but the Act provided also for thecompulsory settlement of disputes by an Industrial Court. If the Ministerreferred a dispute to a court, the court could make an award, whose termslike those of a collective agreement, would become implied terms of thecontract of employment. Provision was made for the subsequent-variation of such terms at the instance of any of the parties.
The Act thus employed the known ways of settling the ordinary tradedispute. But it did not include any simple way of remedying a grievancewhich an individual workman might have against his employer. Suppose,for example, that a workman was dismissed with such notice as thecommon law thinks reasonable but which a fair-minded employernowadays probably accepts as inadequate ; or suppose he was dismissedbecause of reduction in the labour force but without the ex gratia paymentwhich a reasonably generous employer would nowadays think appropriate.The aggrieved workman in such a case could seek the help of his tradeunion which could threaten industrial action. Then there might be areference which might result in the workman obtaining better treatmentand in an aw'ard to govern similar cases in the future. But there mightbe no question of principle involved calling for a general award ; the casemight involve nothing more than a decision on what was the fair thing todo in the particular circumstances. A swift way of dealing with anindividual grievance without calling out the whole force of trade unionismwould certainly help to promote industrial peace. It was supplied by anamending Act of 1957. This Act enlarged the definition of industrialdispute so as to make it clear that it included a dispute or differencebetween an individual employer and an individual workman. It insertedinto the Act a new part, Part IV A, entitled “ Labour Tribunals Thefunction of the Labour Tribunal is to entertain applications by a workmanfor relief or redress in respect of such matters relating to the terms ofemployment or the conditions of labour as may be prescribed. Theparticular matters specified in the Act are those which we have alreadymentioned by way of example, namely, questions arising out of thetermination of the workman’s services and relating to gratuities or otherbenefits payable on termination. On such matters the Tribunal is to
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make such order as may appear to it to be just and equitable. Theworkman has to make Iris choice between the remedy afforded by the Actand any other legal remedy he may have ; he cannot seek both. If hegoes to the Tribunal, the Tribunal’s order settles the matter and is not tobe called in question in any court except that there may be an appeal totho Supreme Court on a question of law. Any money which the Ti ibunalorders to be ]->aid to a workman can be recovered summarily through amagistrate’s court in the same manner as a fino.
The question for the Board is whether the Labour Tribunal, whichunder the Act is to consist of a single person, is a “Judicial Officer”within Section 55 of the Constitution. If so, he can be appointed onlyby the Judicial Service Commission, in which is also vested the power oftransfer, dismissal and disciplinary control. If not, he is a servant of theadministration to be appointed by the Public Service Commission. Inthis way there is maintained, as the Board said in The BriberyCommissioner v. Ranasingite 1, a dividing line between the judiciary andthe executive.
It is not disputed that the Labour Tribunal is an office. If the powerthat is conferred on him by Part IV A derives from the judicial power ofthe State, then he is a judicial officer. It is true that judicial powercan be entrusted to someone who is not a judicial officer and the personso entrusted is then generally spoken of as acting quasi-judicially. Soalso administrative power can bo given to a judge. The character of theoffice depends on the character of the chief function. Apart from hisfunction under Part IV A the Labour Tribunal can act as an arbitratorto whom the Commissioner can with consent refer disputes (a role thatbefore 1957 was filled by the District Judge) and in the case of a minordispute can act in place of an Industrial Court by virtue of a reference bythe Minister. But these are ancillary duties that may or may not comehis way. The Commission that has to make the appointment has to doso before it is known whether they will or not. It is not thereforeserious]y contested that the character of the office of the Labour Tribunalmust bo decided by reference to the powers granted and the duties putupon him by Part IV A. So the question is whether these powers andduties are judicial or administrative in character.
It must be remembered that this is a constitutional question so that.Parliament, when it passed the amending Act, had not a free hand. Itmay be thought convenient that all officers under the Act should belongto the same category and that, as Tambiah J. suggested, they shouldbe filled by persons acquainted with labour practices rather than withpractice in the courts. On the othor hand, it may be an advantage thatthose who are creating the law, so to speak, in the form of general awardsshould be different in character to those who have to apply it inindividual cases ; and that those who have to give just decisions inwhatever sphere should come from the profession that is experienced in
> {196i) 2 A. E. B. 785 at 787 ; 66 N. h. R. 73 at 75.
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the administration of justice. If this were not a constitutional point, theseare the sort of considerations that might be weighed in order toascertain the intent of the Act. But on the constitutional point thepresumed intention of Parliament can have only a very limited effect.If Parliament wants disputes under Part IV A to be settled judicially, thepersons who settle them must be appointed by the Judicial Commissionwhether Parliament thinks it convenient or not. Of course if there beany doubt about whether the language of Part IV A does or does notconfer judicial power, the intent of the Act is relevant to determine thatpoint : but beyond that it is immaterial!
We think with respect that there is nothing to be gained by comparingthe functions of the Labour Tribunal with those of the Industrial Courton the assumption that the latter is not a judicial body. Although thelanguage of the Act suggests strongly that the primary function of theIndustrial Court is arbitral (we shall consider later the exact meaning ofthis rather dubious word) rather than judicial, the Court is empoweredto make orders affecting the existing rights of an individual workman.On the other hand there is in the case of the Industrial Court noprovision for appeal to a court of law or for ousting the jurisdiction of acourt of law' on the same subject-matter. It seems to us to be unnecessaryto decide whether an Industrial Court, when dealing with a dispute whichis also within the jurisdiction of the Labour Tribunal, is exercisingjudicial power. If it is, we think that the exercise is ancillary to themain function of the court which is arbitral ; and consequently that theofficers of the court w'ould not be judicial officers.
Thus in our opinion the question whether a body is exercising judicialpower is not to be determined by looking at its functions in conjunctionwith those of other bodies set up by the Act and forming a generalimpression about whether they are judicial or administrative. Nor is itto be answered by totting up and balancing resemblances between theLabour Tribunal and other judicial or administrative bodies. Judicialpower is a concept that is capable of clear delineation. It has to be,since it is the basis of a constitutional requirement and legislation whichfalls on the WTorig side of the line can be completely avoided. It hasbeen considered many times in relation to those constitutions, particularlythe Australian, which provide for the separation of powers. We proposetherefore to take the basic definition and consider whether or not thepower of the Labour Tribunal falls within it. In the authorities there isalso a discussion of a number of identifying marks distinguishing thejudicial from the executive and legislative powers and we shall considerthose that appear to us to be relevant.
The accepted definition of judicial power is that given by Griffiths C.J.in Huddart o. Moorheadb It is the power “which every SovereignAuthority must of necessity have to decide controversies between itssubjects, or between itself and its subjects, whether the rights relate to *
* (1908) 8 C.LJt. 330 at 357.
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life, liberty, or property. The exercise of this power does not beginuntil some tribunal which has power to give a binding and authoritativedecision (whether subject to appeal or not) is called upon to take action. ”The power of the Labour Tribunal clearly falls within these generalterms, but it is worth noting some particular aspects of it.
There must be a controversy about rights or, as it is sometimes put, aits. Part IV A covers controversies between a workman and his employerabout the rights arising 6ut of that relationship. The power of theTribunal is that of giving a binding and authoritative decision. In thisrespect the procedure is to be distinguished from the conciliationprocedures provided under the Act.
The power proceeds from the Sovereign,i.e., it is the judicial power ofthe State. In this respect it is to be distinguished from the power of anarbitrator whose authority is derived from the consent of the parties'themselves. This factor—that it is the judicial power of the State-carries with it another consequence. Justice can be done in an individualcase without creating any principle applicable to other cases of the samesort. But the judicial power of the State is concerned with justice for alland that is not attained if there are inexplicable dilferentiations betweendecisions in the same type of case. The judicial power of the State musttherefore be exercised in conformity with principle. In Moses v. Parker 1there was vested in the Supreme Court of Tasmania jurisdiction to dealwith disputes regarding claims to grants of land. Such disputes hadpreviously been dealt with by the Governor on the report of Commis-sioners, the Governor being “ in equity and good conscience ” entitledto make a grant. The statute which gave jurisdiction to the SupremeCourt provided that it should not be “ bound by the strict rules of lawor equity in any case, or by any technicalities or legal forms whatever ”.The Board held that a decision of the Supreme Court given under thestatute was not “ a judicial decision admitting of appeal ”. Explainingthis case in the later case of C. P. R. Co. v. Corporation of City of Toronto *the Board said at 471 that “ as the tribunal from which it was desiredto appeal was expressly exonerated from all rules of law or practice, andcertain affairs were placed in the hands of the judges as the persons fromwhom the best opinions might be obtained, and not as a court adminis-tering justice between the litigants, such functions do not attract theprerogative of the Crown to grant appeals ”.
These decisions indicate the importance of the provision in the Ceylonstatute which gives a right of appeal from the Tribunal on questions oflaw. In Moses v. Parker the Board, after observing at 248 that the Courtwas expressly exonerated from all rules of law, continued : *’ How thencan the propriety of their decision be tested on appeal ? What are the•canons by which this Board is to be guided in advising Her Majestywhether the Supreme Court is right or wrong ? It seems almost impossiblethat decisions can be varied except by reference to some rule ; whereas the
i (1896) A. C. 245.
(1911) A. O. 461.
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Court making them is free from rules. If appeals were allowed, thecertain result would be to establish some system of rules ; and that is thevery thing from which the Tasmanian legislature has desired to leave theSupreme Court free and unfettered in each case. If it were clear thatappeals ought to be allowed, such difficulties would doubtless bo metsomehow. ” In the present case it is clear that appeals are allowed andthe corollary is that there must be established a system of rules. It istrue that the only requirement in the Act is that the orders of theTribunal must be such as appear to them to be just and equitable. Butthis imports a judicial discretion, albeit a very wide one. If an orderwas made arbitrarily, this would be, as Tambiah J. says, a good groundof appeal. Experience shows that out of a jurisdiction of this sort theregrows a body of principles laying down how the discretion is to beexercised and thus uniformity is created in the administration of justice.In this fashion, as was said in Moses v. Parker, thero emerges inevitablya system of law.
But this does not mean that unless the Tribunal from the first appliesan existing system of law it cannot be judicial. The distinction i3 notbetween old law and new law but between law and no law. It is quiteplain to us that in doing justice and equity under the Act, the Tribunalwill have to have regard to many novel considerations and to pay onlylimited regard to matters, such as the contract of employment, whichunder the existing law of master and servant would be determinative. Thodirections given to the Tribunal under s.31 B (2) and (3) arc, if addressedto a court of law, unprecedented and we shall consider them in greater 'detail later. Other matters to be considered are novel only in tho sensethat they havo never been accepted as part of the common law. Thepower to order reinstatement, for example, conferred by s. 33 is wellknown to most systems of law but not to tho common law. In the UnitedKingdom the deficiencies of the common law in this respect aro graduallybeing made good by statutes such as the Contracts of Employment Act1903 and the Redundancy Payments Act 1965. What the Ceylon statuteappears to us to be doing is to substitute for the rigidity of tho old lawa new and more flexible system. In some such fashion English equitygave relief from tho common law. Those who made equity were judgesand not administrators.
Another characteristic of the judicial power is that it is concerned withexisting rights, that is those which the parties actually have at thoinception of the suit and not those which it may be thought they ought tohave; it is concerned with the past and the present and not with the future.This distinction between the judicial and tho arbitral power has beenelaborated in a number of aut horities.The word “ arbitral ” is not used to
distinguish between judge and arbitrator in the ordinary sense, for thearbitrator like the judge ordinarily deals with disputes about existingrights. But most industrial arbitrations are concerned with settlingconditions of employment as they should bo in the future and “ arbitral ”
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ia used to describe that function. In Attorney-General for Australia v. R.1the Board at 310, after saying that “ the function of an industrialarbitrator is completely outside the realm of judicial power and is of adifferent order ”, went on to cite the well known passage from thejudgment of Isaacs and Rich JJ. in Waterside Workers' Federation ofAustralia v. Alexander (J. W.) Ltd*
“ The essential difference is that the judicial power is concernedwith the ascertainment, declaration and enforcement of the rights andliabilities of the parties as they exist, or are deemed to exist, at themoment the proceedings are instituted; whereas the function of thearbitral power in relation to industrial disputes is to ascertain anddeclare, but not enforce, what in the opinion of the arbitrator oughtto be the respective rights and liabilities of the parties in relation toeach other. ”
Tambiah J., we think with respect, errs in supposing that because thoTribunal is not administering the old Jaw it is not giving decisions onexisting rights but creating future ones. It is the statute which createsthe right to equitable relief by giving tc tho workman the option of goingto the Labour Tribunal to ask for it instead of taking what the commonlaw will give him. One method of altering the law on master and Servantwould be to enact a hew set of rales, as has been done to sorao extent inthe United Kingdom by the statutes wo have mentioned, leaving to thecourt only the task of interpretation and application. Another method,frequently employed, is to give frosh powers to the court. Under thelatter method the right comes into existence as soon as there is created therelaticnship, in this case that of employer and workman, from which itsprings ; it does not have to wait for life until tho relief granted is spelt outin words by the court-.
Another and essential characteristic of judicial power is that it shouldbe exercised judicially. Put another way, judicial power is power limitedby the obligation to act judicially. Administrative or executive power isnot limited in that way. Judicial action requires as f minimum theobservance of some rules of natural justice. Exactly what these are willvary with the circumstances of the caso as Tucker L.-J. said in Bussell v.Duke of Norfolk 3 in a passago which has several times been approved.Whatever standard is adopted, Tucker L.J. said, one essential is that theperson concerned should have a reasonable opportunity of presenting hiscase. Lord Hoclson in Ridge v. Baldwin4, after quoting Tucker L.J’.sdictum, added “ No one, I think, disputes that three features of naturaljustice stand out—(1) tho right to be heard by an unbiased tribunal;
the right to have notice of charges of misconduct; (3) the right to beheard in answer to those charges. ” Thoso are not necessarily featuresof administrative decisions. The administrator is not required to beunbiased ard his decision may often affect, those who have no opportunityof presenting their views.
1 (1957) A. C. 288.* (1949) 1 A. E. R. 109 at 118.
* (1918) 25 C. L. R. 434 at 463.* (1964) A. C. 40 at 132.
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Under 8. 31C (2) the Labour Tribunal is empowered, subject toregulations which have not yet been made, itself to lay down the procedureto be observed by it. We think it is clear from the authorities,—indeed,the contrary was not suggested—that the nature of its enquiry is such thatit must act in conformity with natural justice. A recent example of theapplicability of the rules in this type of case is R. v. Deputy IndustrialInjuries Commissioner ex parte Moore *. It is arguable that the rules ofnatural justice are not applicable at all unless there is an obligation to actjudicially and that if such a limitation is imposed on the power, it must bea judicial power. Parker C.J. said recently in re Habib Khan that it maybo that where there is no duty to act judicially or quasi-judicially thereis no power in the Court to interfere. But the point Mas not exploredin argument before the Board and we shall not therefore say more thanthat to hold that the Labour Tribunal is bound by the rules of naturaljustice is going a long way towards holding that it is a judicial tribunal.
Finally there is the principle that the judicial power must be exercisedso as to do justice in the case that is beirg tried and the judge must notallow himself to be influenced by any other consideration at all.Cons:de:ations of policy or expediency which arc permissible for theadministrator must be altogether excluded by the judge. The LabourTribunal is, as we have said, empowered by 1hc statute to enquire intomatters that have hitherto been regarded as outside the purview of courtsof law and as relevant only to the making of collective bargains. If theseenquiries, although unusual and opening up a new source of law, are allsubordinate to the Tribunal's task of making a just, and equitable orderupon the woikman’s application for relief, well and good. But if theyimpose upon the Tribunal the duty of making an order that is pclitic orexpedient rather than one nhich is just and equitable, then the Tribunalis in (fleet being told that it is not a judicial tribunal. To our minds thisis the crucial question in this case. We must now review the provisionsin the Act which are said to introduce extraneous considerationsinconsistent with the judicial task.
We do not attach importance to the fact that by s. 31A (1) LabourTribunals aie established for the purpose of tho Aqt. The purposes ofthe Act as set out in the preamble are ‘ the prevent ion, investigation andsettlement of industrial disputes, and for matters connected therewith orincidental thereto*'. It is argued that this means only the arbitralsettlement of industrial disputes but this seems to us to beg the question.That was what it meant Mhcn the Act Mas first drafted because the Actthen provided only for conciliation and arbitral settlement. But thepreamble does not prescribe the mode of settlement and if Parliamentdecided by the amonding Act of 1957 to introduce judicial settlement,there would be no call to alter the preamble.
1 (1964) A. C. 40 at 132.
1 (1965) 1 Q. B. 456 at 476.
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Nor do we consider that the exercise of any of the powers conferredby section 33 requires the Tribunal to act unjudicially. The power toreinstate, or to grant compensation in lieu of reinstatement, is new butthere is nothing unjudicial about it. Likewise, the provision in s.31B (4) that the Tribunal may in granting relief or redress override theterms cf the contract of service is in this branch of the law startlinglynew ; but it is not contrary to modern ideas of justice. The idea thatfreely negotiated contracts should be conclusively presumed to containjust and equitable provisions began to die with the end of the 19th century.Long before then equity had refused to give effect to provisions in acontract which it considered to be harsh and unconscionable. From thebeginning of the 20th century legislatures all over the Commonwealthhave been writing terms into contracts and taking them out, whatever theparties may think about them. No doubt it is taking the process a stepfurther to leave it to the discretion of the court to say for itself what termsof the contract it will enforce, but there is nothing in this that is contraryto principle. Indeed in this sub-section the statute is doing no morethan accepting and recognising the well known fact that the relationsbetween an employer and his workman are no longer completely governedby the contract of service.
The provisions in the Act which appear to us to be questionable fallinto two categories. First, there are those which may appear to divertthe attention of the Tribunal from the demands of justice to what may becalled the politics of industrial bargaining. Secondly, there are thosewhich seem to subordinate the new process under Part IV A to the otherarbitral activities provided for by the Act.
If any of these provisions can fairly be construed as a direction to theLabour Tribunal that in framing his order he is not simply to decide whatis just and equitable as between the parties but that he is also to considerwhat sort of order is most likely to promote industrial peace generallyand that if the just order might give rise to conflict he is not to make it,we should not hesitate to conclude that the Labour Tribunal was not ajudicial body. But all these provisions are prima facie subordinate to thedefinitive words in s. 31 C (1) which make it the duty of the Tribunal toenquire into the application for relief and to make such order as mayappear to it to be just and equitable. These words in thoir natural andordinary meaning require the Tribunal to do justice between the partiesto the application. That is the dominating duty and the dominion canb overthrown only if there is a strong inference from other provisions in
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Workers Union v. Devanayagam
Part IV A that justice between the parties is not to be the only object ofthe order. We have to take into consideration not only the positive wordsof s. 31C (1) but also the other indications to which we have drawnattention that the Tribunal is vested with judicial power, especially theprovision for appeal to the Supreme Court and the fact that the Tribunalmust observe the rules of natural justice. Finally, it is to be rememberedthat Part IV A ousts at the option of the workman the jurisdiction of theordinary courts. It would require very strong words to satisfy us that anAct of Parliament, which deprived the employer of his rights at commonlaw in any dispute which he might have with one of his workmen, offoredhim no alternative way of getting justice as distinct from administrativetreatment.
It is not in our opinion inconsistent with the dominating duty to makea just and equitable order that the statute should prescribe the sources ofequity to which the Tribunal must have jegard. This in ou>- opinionsatisfactorily accounts for the presence in the statute of two provisionswhich are said to require the Tribunal to have regard to extraneousconsiderations. The first i's. 31B (3) which requires the Tribunal beforemaking its order to consider any relevant arbitral award and thenhavo regard to it. We can see nothing contrary to justice in this. Agood guide to what is fair and equitable in a particular case must befurnished by settlements which bodies of employers and workmen havemade or are making in similar cases. The terms of collective bargainsmust be a source to which the Tribunal can properly resort. It is truethat the terms of such bargains may reflect the operat ion of considerationsof policy or expediency which have induced the assent of one side or theother. But that docs not involve the Tribunal in questions of policy anymoio than the application of a statute involves a court of law in the issuesof policy that have led up to its enactment.
The other provision is s. 4G (4) which allows tho Commissioner to bepresent and hoard in any proceedings before the Labour Tribunal. If thismoans that the Commissioner is entitled to express his opinion on how theclaim should be treated, it Avould indeed be o serious matter to consider,for it is to be presumed that the Commissioner would concern himselfwith questions of general policy rather than of individual justice. Buttlicie is no need to suppose that the function of the Commissioner is morethan that of informing tho court about the results of collective bargainswhich, as we havo said, the Tribunal may properly regard as a source ofequity and of assisting tho Tribunal in the inquiries which it is told tomake about other similar proceedings.
In the second category there aro twro provisions in s. 31B (2)which allow the arbitral or conciliatory procedure to take precedence overtho Tribunal’s procedure. One is tho provision in s.s. (a) which requiresthe Tribunal to give effect to any settlement of the matter which is reached
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with the employer by the workman’s trade union. The other is theprovision in s.s. (6) which requires the Tribunal to dismiss the workman’sclaim if its subject matter forms part of an industrial dispute referred bythe Minister under the arbitral provisions of the Act. This dismissal doesnot preclude the workman from pureuing his rights at common law sinceunder s. 31B (5) they are excluded only where proceedings before theTribunal are taken and concluded.
Theso provisions are designed to avoid a conflict of jurisdiction betweenthe bodies set up under the Act. It would, for example, plainly be absurdif tho Tribunal was to decide a dispute in favour of an applicant and theIndustrial Court was to decide it against him, making its decision oraward under Sections 19 or 2G a term of the applicant’s contract ofemployment. Parliament resolves the conflict by limiting tho jurisdictionof the Tribunal. It is difficult to say that this limitation is unfair since,if the workman dislikes the limitation, he need not resort to the Tribunalat all ; lie can, if ho prefers, exercise his common law right. But whetherit is unfair or not is not to the point. A limitation on the jurisdictioncannot affect the quality of decisions given within the jurisdiction.
The second provision, s.s. (6), in terms ousts the jurisdiction of theTribunal, leaving the matter to be settled either as an industrial disputeor by the workman’s action at common law. The first provision is a lessobvious way of ousting the jurisdiction but that is what in substance,though not in form, it is doing. A court of law has no doubt the formalpower of refusing to make an order in accordance with a settlementreached by the parties, but it is a power which is exercised only inexceptional cases, as for example when one of the parties is under theprotection of the court. Otherwise the Court docs not enquire whetherthe proposed settlement achieves a just result; it assumes that it does. Itassumes also that counsel has authority to make a settlement on behalf ofhis client; if ho has not, it is a matter that they must settle betweenthemselves. The Act is based on a similar assumption that a trade unionhas a similar authority from its members. This is evident not only ins.s. (a) but more significantly in s. 8 which empowers a trade union tomake a collective settlement which will alter the terms of individualcontracts. If s.s. (a) had provided that any settlement made by theapplicant’s trade union was deemed to be authorised by him, it would haveachieved the same result without affording any scope for the suggestionthat the Tribunal was being asked t.o adopt a practice not normallyfollowed by courts of law.
S. 31 B (2) is therefore removing from the jurisdiction of the Tribunaldisputes which Parliament considers are better settled by other means.It is true that in such settlements by other means what is thought to bepolitic and expedient may play a large part. It often does in settlementsof ordinary actions. But this does not inject expediency into the
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deliberations of the Tribunal. There is nothing in s. 31B (2) whichaffects the duty of the Tribunal under s. 31C (1) to decide in accordancewith justice and equity all such matters as it has to decide.
Accordingly we conclude that the orders which the Tribunal is to makeunder Pait IV A are judgments arid not administrative orders. Sinie thewhole function of the Tribunal under Part IV A i; to consider applicationsand hold inquiries which are to end in judgments, it must follow that theTribunal is a judicial Tribunfl and that the person constituting theTribunal is a judicial officer.
Appeal allowed.