cHAP. 11] THE COMMONWEALTH OF AUSTRALIA 849
tories and Shops Act, 1905, an award in Queensland under
the Wages Board Act, 1908, and the Factories and Shops Act,
1909, and an award in South Australia under the Factories
Act, 1907.
It was proposed by the Court to fix the minimum rate of
wages at a higher rate than any of the minimum rates fixed
by the States Wages Boards, and to make different provisions
as to apprentices and aged, slow, or infirm workers, while the
proposed award contained no provisions as to ‘ improvers’, to
whom, under the States Wages Boards awards. wages might
be paid below the minimum rate. i
The case was heard by the full Court, and there was
a difference of opinion, the Chief Justice, Barton and
O’Connor JJ. taking one view, and Isaacs and Higgins JJ.
taking the opposite view on the question of principle.
The Chief Justice! reiterated the views which he had ex-
pressed in the Woodworkers’ case. He held that the power
of the Parliament under s. 51 (xxxv) of the Constitution to
make laws with respect to conciliation and arbitration for the
settlement of industrial disputes extending beyond the limits
of any one state was subject to the rule that any invasion by
the Commonwealth of the sphere of the domestic concerns
of the ktates appertaining to trade and commerce was for-
bidden except in so far as the invasion was authorized by
some power conferred in express terms or by necessary
implication. The term arbitration denoted a judicial tri-
bunal, and although the functions of the tribunal differed
from those of ordinary tribunals in as much as they were
not limited to determining existing cases, but extended to
prescribing conditions to be observed in future contracts,
nevertheless, the tribunal was no less a tribunal, and it was
an essential part of the creation of a tribunal that it should
be obliged to decide in accordance with law.
The tribunal had the power to order anything which the
parties could lawfully agree to do, but could not order the
parties to take any step which was not legal. It was argued
in favour of the power of the Federal Court that if the
110 C. L. R. 266, at pp. 278 seq.
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