Page:Harvard Law Review Volume 32.djvu/930

894 894 HARVARD LAW REVIEW they are working is still binding as a matter of strict law. On the other hand, the employers are entitled to argue that the award, having been made in contemplation of being binding for a certain period, should be honored as something more than a scrap of paper, — in a word, that no adjustments should be made imtil the pre- existing award has run its normal course, I assume that, under any conceivable legislation, an industrial court will be formally authorized to vary its own awards. What, from the point of view of that pubHc policy to which both civil and industrial courts defer, should be taken to be the scope of the power to vary? Is it limited to the rectification of obvious anomalies in existing awards, or is the power sufficiently wide to include the adaptation of those awards to new circumstances (including therein an increase in the cost of living as found by the court) ? Such ques- tions raise many difficulties. In the South Australian legislation various sections may be quoted as suggestive of a legislative intent that awards shall run their normal course. There is certainly no general statutory direction prescribing that preexisting awards shall be altered automatically by reference to variations in the living wage. Such legislation has been suggested. If such legisla- tion were enacted, and if it were accompanied by a direction to the court to declare the living wage from year to year, it would save a good deal of controversy and discontent. The appeal to employees is apparent. So far as employers are concerned, they would at any rate know exactly where they stood, and that, if they entered upon an obligation to perform contracts for future services, they would do so subject to the risks of a variation in the living wage. Confin- ing myseK to existing legislation, I am of the opinion that the South Australian court has the full legal power to adjust court awards for which a variation is asked. But, while the court has the legal power, it may not be subject to a coextensive legal duty. The distinction between the power which a court may technically possess and a duty which it ought to recognize is vital. An indus- trial court might declare a living wage of £io for a working week of twenty hours! But the things which an industrial court ought to do are much more modest, and involve a far more restricted ambit of investigation, than the things which it might technically do. With regard to the question to what extent the court should exercise the power which it may legally possess in the way of effecting ad-