R v Gaudron; Ex parte Uniroyal Pty Ltd

I would grant a rule nisi for prohibition and make it absolute.

The prosecutor, Uniroyal Pty. Ltd., seeks relief by way of prohibition and/or certiorari in relation to an award made by Gaudron J. in the Conciliation and Arbitration Commission varying the Plastics, Resins, Synthetic Rubbers and Rubbers (Uniroyal) Award 1975 ("the Award") so as to provide for preference of employment for members of The Federated Miscellaneous Workers' Union of Australia ("the Union"). The variation award was made on 4th January 1977 and was expressed to come into operation on 1st February of that year but by a further order dated 18th January the commencement date was altered to 14th February. Before that date the prosecutor appealed pursuant to s. 35 of the Conciliation and Arbitration Act 1904, as amended ("the Act") and obtained an order under s. 35 (8) of the Act staying the operation of the variation award. On 30th May a Full Bench of the Commission (Sharp J., Alley J. and Mr. Commissioner Deverall), by majority, dismissed the appeal and discharged the stay order.

The prosecutor thereupon sought an order nisi in this Court. The application came before Stephen J. who directed the prosecutor to move on notice in the Full Court and made an order staying the proceedings in, and the orders of, the Conciliation and Arbitration Commission.

The Award was a consent award made by the Commission on 24th March 1976 after a log of claims had been served on the prosecutor by the Union on 26th May 1975. For present purposes the only relevant clause in the log of claims is par. 41 which reads:

Absolute preference of employment shall be given to financial members of The Federated Miscellaneous Workers Union of Australia.

The consent award did not cover all matters in dispute between the Union and the prosecutor. This circumstance excited Mr. Jackson for the State of Queensland, an intervener, to make the submission that the consent award put an end to the industrial dispute. The prosecutor did not lend its support to this submission. It was not surprising as the submission was plainly misconceived, having no foundation in the facts. The matters involved in the dispute which were not settled by the consent award were clearly identified in a letter from the prosecutor to the Union dated 22nd December 1975. This letter listed "items that, as agreed, do not appear in the Award" and went on to state:

In addition the Company is prepared to discuss and consider during the life of the Award: -

(a) the question of the granting of preference to financial members of the Federated Miscellaneous Workers Union of Australia.

By this statement the prosecutor indicated that, although it was unwilling to concede the Union's claim, it was prepared to discuss and consider it. A willingness on the part of one party to a dispute to discuss and consider a claim does not itself terminate an existing dispute. Even an expressed willingness on the part of both parties to a dispute to "discuss and consider" the subject matter of the dispute will not terminate the dispute unless it otherwise appears there is mutual agreement to discuss and consider which has been arrived at by way of settlement of the dispute. The point of a mutual agreement to discuss and consider a claim is that the parties are in disagreement as to how that claim should be resolved and they are seeking a means of resolving that disagreement which constitutes or forms part of the pre-existing dispute. Thus the agreement is not inherently inconsistent with the continued existence of the dispute; indeed the agreement might be said to point to its continuation.

Here there is nothing to suggest that the parties terminated the existing dispute to the extent to which it was left unresolved by the Award. The situation is no different from that which arose in Federated Engine-Drivers' and Firemen's Association of Australasia v. Adelaide Chemical and Fertilizer Co. Ltd. [8] where Knox C.J., Gavan Duffy and Starke JJ. said:

The Court became seised of a dispute extending beyond the limits of one State, and it then became its duty to determine that dispute in so far as no agreement between the parties was arrived at (see s. 24). The fact that the Court or the parties on the road to or in process of settlement of the dispute made some awards or some such agreements, which did not together cover the whole area of the dispute, did not dispose of or end the dispute or change its character. The jurisdiction of the Court having once vested is not divested, and the duty of the Court is not completely performed by the partial settlement of the matter. 1. (1920) 28 C.L.R. 1, at p. 9.

The variation of the Award resulted in the inclusion in it of cl. 38 which, to the extent that it is relevant to the issues which arise for consideration, is in the following terms:

1. The employer shall from 1 February, 1977 observe the following procedure in engaging employees for employment under the Award.

(a) A member of the Union or a person holding a current certificate under section 47 (3) of the Conciliation and Arbitration Act may be employed at any time.

(b) Subject to sub-clause 2 of this Clause, a person who agrees in writing with the employer that he will within fourteen days of commencement of employment apply to join the Union may be employed at any time.

(c) Any other employee may be employed not less than fourteen days after the employer has notified the Union that an opportunity for employment exists and of the nature of the work involved in the employment.

Provided that in an emergency the employer may engage an employee for not more than five days without complying with the requirements of this Clause, but shall not thereafter continue or extend the employment and shall not renew it except after notification in accordance with this sub-clause and subject to Clause 3 "preference".

2. The employer shall in respect of any person employed pursuant to sub-clause 1 (b) of this clause, arrange to introduce such person within fourteen days of the commencement of such employment to a duly accredited shop steward or union delegate for the purpose of making application for union membership. Such person and the accredited shop steward or union delegate shall be allowed reasonable time within working hours and without loss of pay for the purpose of making such application.

The employer shall in relation to all persons commencing employment on or after 1 February, 1977 give preference to members of the Union as hereinafter prescribed in relation to the matters hereinafter specified: -

In relation to the matter of engagement in any employment covered by the Award, the employer shall give preference to all members of the Union who have indicated to the employer their desire for employment by him within fourteen days after the receipt of the notice by the Union.

Provided that the employer shall be excused from the obligation to give preference in accordance with this sub-clause in the case of any particular member of the Union if at the time of making the engagement the employer has reasonable grounds to believe (and does believe) that the member is unsuitable for the duties of the employment, being work the nature of which was notified to the Union pursuant to sub-clause 1 (c). The employer shall not, within the meaning of this sub-clause, have reasonable grounds for believing that an employee is unsuitable for the duties of the employment unless he has made reasonable enquiries in the circumstances, including the giving of a reasonable opportunity to the employee to establish his suitability.

There followed provisions relating to retention, information concerning union membership and exclusions of persons who commenced employment before 1st February 1977 and persons holding current certificates under s. 47 (3) of the Act.

The variation as awarded differed from that sought in that the variation speaks of "members of the Union" whereas the claim spoke of "financial members of the Union". There is nothing in the suggestion that this distinction took the variation outside the ambit of the dispute. For one thing, it was not shown what the difference in description entailed. We do not know whether under the constitution of the Union the class of members is larger than, or differs in composition from, the class of financial members. For another thing, the Commission is not restricted in its settlement of disputes to the making of an award in terms which reflect precisely the way in which a union has formulated its claim. When there is in existence a dispute attracting jurisdiction the Commission may settle the matter in dispute by making any provision which is necessary or expedient for the settlement of the dispute (s. 55; R. v. Commonwealth Court of Conciliation and Arbitration; Ex parte Kirsch [1] ; Australian Tramways Employees' Association v. Commissioner for Road Transport and Tramways (N.S.W.) [2] ), even though the result of so doing may mean that the benefit sought extends to some persons outside the specific class of financial members of the union mentioned in the log of claims. The Commission may conclude, on hearing the case, that to grant the claim in the terms sought would create practical or other difficulties and that an appropriate and enduring solution of the dispute calls for an award in terms different from those contained in the log of claims. Nor should it be forgotten that it is the function of the Commission to prevent as well as settle industrial disputes (see s. 55). It may transpire in some cases that a provision in an award, though travelling beyond the ambit of a present dispute, is to be justified as a provision designed to prevent the occurrence of some future dispute.

1. (1938) 60 C.L.R. 507. 2. (1935) 53 C.L.R. 90.

The prosecutor also argued that the making of an award granting preference in employment to unionists was beyond constitutional power. This submission, which went to the validity of s. 47, was that the constitutional conception of "industrial disputes" was in some way limited to disputes about actual or existing employment and that it did not extend to disputes about future or prospective employment. It is an untenable suggestion, one which finds no support in the language of the Constitution or in authority. There is nothing in the conception of "industrial disputes" which tends to support this arbitrary limitation. A dispute between an employer and his employees in an industry as to whether members of a union are to have preference in employment by that employer in that industry has all the character and flavour of an industrial dispute. It is a dispute between an employer and his employees which is concerned with the relationship of the employer with his employees. Although this Court has held that the Commission has no power under the Act to award compulsory unionism (R. v. Wallis; Ex parte Employers' Association of Wool Selling Brokers [3] ; R. v. Findlay; Ex parte Victorian Chamber of Manufactures [4] ; Reg. v. Judges of the Commonwealth Industrial Court; Ex parte Cocks [5] ), the decisions turn on the construction of the Act, rather than upon s. 51 (xxxv.) of the Constitution. Moreover, they acknowledge that a dispute about preference in employment is a dispute about an "industrial matter" within s. 4, a conclusion which was inevitable in view of the presence of par. (j) in the statutory definition and s. 47 (previously s. 56). This acknowledgment, reiterated in Reg. v. Holmes; Ex parte Altona Petrochemical Co. Ltd. ("the Altona Case") [6] , necessarily recognizes that a dispute about preference in employment for unionists falls fairly and squarely within the constitutional conception of an industrial dispute. It is my view, accordingly, that s. 47 (1) is a valid enactment of the Commonwealth Parliament.

1. (1949) 78 C.L.R. 529. 2. (1950) 81 C.L.R. 537. 3. (1968) 121 C.L.R. 313, at p. 326. 4. (1972) 126 C.L.R. 529.

The Award has obvious similarities to the award which was made in the Altona Case. There are certain differences between the two awards and it is upon these differences that the prosecutor's principal argument was founded. Before dealing with them, I must say something of what the Court decided in the Altona Case, because the prosecutor's argument seemed to derive some inspiration from the dissenting judgment of the Chief Justice. It will be recalled that in the Altona Case the Court was divided in opinion upon the question whether the particular claim made by the union was a demand for preference within the meaning of s. 47. The Chief Justice thought that the power given to the Commission by that section to direct that preference be given to "such members of an organization as are specified in the award or order" was restricted by reason of considerations inherent in the word "preference". Thus he said [7] :

Two things in my opinion flow from these considerations: first that the award or order cannot create the occasion for the making of a choice: the occasion must result from the initiative of the employer in requiring labour for the task he specifies. Second that the award or order cannot deny or prevent the occasion for a choice arising. The award or order must be limited to dealing with an occasion which in fact has arisen in the ordinary course of business. Adopting this approach, his Honour concluded that cll. 1 and 2 (a) of the log travelled beyond the scope of the power conferred. Clause 1 was a demand for an award that an employer might at any time employ a member of the union but for a space of twenty-one days might not employ anyone who was not a member of the union. It was in terms a demand that there be an award that at least for a period of twenty-one days there should be an exclusion of all persons not members of the union from employment in relation to the particular task which the employer wished to have performed. Clause 2 (a) required preference to be given to all members of the organization who indicated within the stated time their desire for employment by the employer. 1. (1972) 126 C.L.R., at p. 540.

The conjunction of those two parts of the demand is designed to ensure that an occasion is created on which to exercise a preference, that is to say, by preventing the prosecutors from engaging anyone to do the desired work until some member or members of the organization decide to apply for the job. As I have said the power to direct the giving of preference does not, in my opinion, extend to the making of an order or award to create the opportunity or occasion for the exercise of preference. 1. (1972) 126 C.L.R., at pp. 541-542.

Windeyer J. also thought that the claim went beyond the scope of the power, apparently on the ground that the statutory concept of "preference" did not extend to excluding the employer's discretion to select one candidate for employment over another by reference to the employer's estimation of the greater capacity or suitability of the one as against the other.

On the other hand Menzies J., with whom Owen J. agreed, conceded that cl. 1 of the log, taken by itself, was not a claim for preference to unionists [9] , but concluded that it should be upheld as a valid exercise of that power conferred by s. 47 (1). His Honour said [10] :

I think that a provision that no non-unionist should be engaged, unless and until an employer has ascertained in a specified manner that there is no competent unionist available for engagement, could be part of the provision of preference for unionists. Such a provision would, of necessity, prevent the immediate engagement of a non-unionist. Nevertheless, some limitation upon the liberty of an employer to engage non-unionists, to forestall any competition from unionists for jobs, does seem to me to fall within the conception of preference in employment to unionists. If a claim for preference in employment be made out, the Award granting it should contain such provisions as are necessary to make it effective and I consider that a limitation upon the right to employ, to ensure that those to be preferred have a real opportunity to offer for work when it becomes available falls within that description. McTiernan J. also held that the scheme could give rise to an exercise of the power. 1. (1972) 126 C.L.R., at p. 556. 2. (1972) 126 C.L.R., at p. 557.

In my view the prosecutor's argument disclosed no reason why the Court should depart from the decision in the Altona Case [11] . Indeed, reflection on the question confirms in my mind the correctness of the view expressed by Menzies J. according, as it did, a liberal interpretation to the statutory power, one which enables the preference awarded to constitute a substantial, rather than an illusory, advantage to the members of the union.

The prosecutor then sought to distinguish the Altona Case on two grounds. The first of these grounds may be quickly disposed of. This was the suggestion that cl. 38 should be characterized as a provision for compulsory unionism and not as a provision awarding preference in employment to the members of a union. It was said that if the variation came into operation it would be only a matter of time before the result of its operation would bring about a monopoly of employment in favour of the Union in relevant occupations. This prognosis may well be correct. However, it has limited relevance, if any, to the question which has to be decided. That question is whether cl. 38 constitutes a provision giving preference in employment to members of the Union. It is inescapable that the giving of such a preference has a tendency to bring about a monopoly in the relevant employment in favour of members of the Union. This was recognized by Menzies J. in the Altona Case, but his Honour concluded that it was not legitimate to characterize the award by reference to its tendency to produce this long term consequence. The circumstance that a provision giving preference in employment to members of a union has a natural tendency to bring about a monopoly in employment of members of the union does not deprive the provision of its character as one giving preference in employment. It does not cease to have that character because its natural tendency is to bring about monopoly in employment.

The question remains whether cl. 38 can truly be characterized as a preference. It will be noticed that the clause is divided into parts, including "Part A" which is headed " Method of Engagement ", and "Part B" headed " Preference ". It seems that Pt B was conceived to be the actual award of preference, whilst Pt A was intended to regulate the method of engagement so as to constitute a machinery whereby the grant of preference in Pt B would become effective. There is some ambiguity in sub-cl. (1) in that pars (a), (b) and (c) are expressed in permissive language. However, the opening words of the subclause are mandatory in form and require the employer to observe the procedure set out in pars (a), (b) and (c), with the consequence that when the two parts are read together there can be no doubt that an obligation is laid on the employer to observe the procedure set out in Pt A.

The one significant difference between the Altona log of claims and cl. 38 is that Pt A does not confine itself to a simple division between members of the Union and non-members. It introduces a third class of persons, being those dealt with in sub-cl. (1) (b), that is persons who agree in writing with the employer that they will within fourteen days of commencement of their employment apply to join the Union. The subclause places persons in that class on the same footing as Union members - together they form a privileged class and may be employed by the employer at any time. On the other hand, the employment of persons in par. (c), the non-privileged class, is deferred for fourteen days after notification of the vacancy is given by the employer to the Union. Also, it will be observed that under Pt B the employer is bound to give preference only to those Union members who indicate to the employer their desire for employment within fourteen days after the employer's notice of the vacancy is given to the Union.

The effect of Pt A therefore is not merely to advantage the Union members; it also advantages the persons in par. (b) of sub-cl. (1). The deferment of the employment of the persons in par. (c) confers an advantage on the persons in par. (b) as well as Union members in par. (a).

Although it is envisaged that persons in par. (b) will subsequently join the Union, they are not members of the Union at the relevant time, and it is possible that they will decline to join the Union notwithstanding their written engagement with the employer so to do. It is therefore impossible to treat the persons in par. (b) on the same footing as if they were Union members.

The inevitable consequence, as I see it, is that the deferment of employment of persons in par. (c) operates to give a preference not only to Union members but also to persons in par. (b) who are not members of the Union. The giving of this preference does not facilitate or make effective the giving of preference to persons who are at the relevant time members of a union. The inclusion of par. (b) and sub-cl. (2) was evidently to give the prosecutor a wider range of choice in selecting its employees and at the same time to establish a procedure which would make it likely that persons selected as employees who were not Union members would join the Union. No doubt this approach has a lot to commend it, but for my part I do not think that it enables the Court to hold that what in terms is plainly a preference to non-unionists is somehow transmogrified into a preference for Union members.

In passing I should say that s. 47 (1) does permit the Commission to give preference to a class of members of an organization. Of its ancestor, s. 56, Kitto J. said in R. v. Findlay [12] : "I read the expression "such organizations or members thereof as are specified" in its natural meaning of "such organizations, or such members of organizations, as are specified"." The later substitution of the words "of organizers" for the word "thereof" does nothing to alter that interpretation. If anything, it strengthens the interpretation. As Barwick C.J. pointed out in the Altona Case [13] it is necessary to carry the word "such" down so that it governs "members" as well as "organizations". All that is required is, to use the words of the Chief Justice, that the members "be identifiable by some certain description contained in the award or order".

1. (1950) 81 C.L.R., at p. 555. 2. (1972) 126 C.L.R., at p. 538.

This apart, it follows from what I have earlier said, that cl. 38 (1) by reason of the presence of sub-cll. (1) (b) and (2) is outside the power conferred by s. 47 (1). It is invalid because it cannot be sustained as an award made by the Commission in settlement of a dispute as to an "industrial matter" within the meaning of s. 4 (1) of the Act. Despite the inclusion in the statutory definition of par. (j) which is in these terms -

(j) the preferential employment or the non-employment of any particular person or class of persons or of persons being or not being members of an organization; this Court decided in R. v. Wallis [14] and R. v. Findlay [15] that s. 56, which is relevantly indistinguishable from its present counterpart s. 47, is the sole source of authority in the Commission to make an award binding on an employer requiring him to give preference to a union or its members. The two cases proceed according to the view that a demand for more than that preference cannot found a dispute as to an industrial matter. They were the outcome of a legislative history which extended back beyond s. 56 to s. 40 of the Act in its original form. In early days it was said of s. 40 that it empowered the Court to grant preference to unionists even though preference was not in dispute. Griffith C.J., Isaacs, Higgins and Rich JJ. and later Starke and Evatt JJ. were of this opinion, though Griffith C.J. seems to have thought the provision was invalid as transcending the limits of s. 51 (xxxv.) - see the Tramways Case [No. 2] [16] ; Australian Workers Union v. Pastoralists' Federal Council of Australia [17] ;Waterside Workers' Federation of Australia v. Gilchrist, Watt and Sanderson Ltd. [18] ; Anthony Hordern & Sons Ltd. v. Amalgamated Clothing & Allied Trades Union of Australia [19] . On this interpretation the presence of s. 40 would not have worked any limitation on the general power of the Commission to award preference in settlement of a dispute about the giving of preference. Despite its obvious attractions, this interpretation, well supported though it had been, did not prevail. In Anthony Hordern's Case [20] Gavan Duffy C.J., Dixon and McTiernan JJ. who constituted the majority, held that s. 40, being a particular power, which was subject to limitations, excluded the operation of the general powers of the Commission in relation to the same subject matter. Subsequently s. 56 was accorded a similar interpretation in R. v. Wallis [21] and R. v. Findlay [22] , both of which were unanimous decisions. They must be accepted as an authoritative exposition of the meaning of s. 47 and, as I have said, no relevant distinction can be drawn between that section and its successor. The consequence is that s. 47 limits the power of the Commission to award preference to unionists. 1. (1949) 78 C.L.R. 529. 2. (1950) 81 C.L.R. 537. 3. (1914) 19 C.L.R. 43, at p. 81. 4. (1911) 5 C.A.R. 48, at pp. 98-99. 5. (1924) 34 C.L.R. 482, at p. 549. 6. (1932) 47 C.L.R. 1, at pp. 10-11, 15-18. 7. (1932) 47 C.L.R. 1. 8. (1949) 78 C.L.R. 529. 9. (1950) 81 C.L.R. 537.

But the question here is whether it also operates to deny the power of the Commission to award preference to non-unionists, a power which, but for s. 47, the Commission would enjoy by virtue of ss. 18 and 40. Although s. 47 does not confer power to award preference to non-unionists, it should be regarded as a comprehensive expression of the Commission's power to award preference in employment. It can scarcely be suggested that it was the Parliament's intention to concede a general and unlimited power to the Commission to award preference in employment to non-unionists and a more restricted power to award it to unionists.

For these reasons I would grant a rule nisi for prohibition and make it absolute.

By a log of claims delivered to the applicant Uniroyal Pty. Ltd., and as a consequence of which the Plastic, Resins, Synthetic Rubbers and Rubbers (Uniroyal) Award, 1975 was made, the respondent Federated Miscellaneous Workers' Union of Australia claimed inter alia as follows:

Absolute preference of employment shall be given to financial members of The Federated Miscellaneous Workers Union of Australia.

On 4th January 1977 the said award was varied by inserting a cl. 38 which so far as is presently relevant states:

1. The employer shall from 1 February, 1977 observe the following procedure in engaging employees for employment under the Award.

(a) A member of the Union or a person holding a current certificate under section 47 (3) of the Conciliation and Arbitration Act may be employed at any time.

(b) Subject to sub-clause 2 of this Clause, a person who agrees in writing with the employer that he will within fourteen days of commencement of employment apply to join the Union may be employed at any time.

(c) Any other employee may be employed not less than fourteen days after the employer has notified the Union that an opportunity for employment exists and of the nature of the work involved in the employment.

Provided that in an emergency the employer may engage an employee for not more than five days without complying with the requirements of this Clause, but shall not thereafter continue or extend the employment and shall not renew it except after notification in accordance with this sub-clause and subject to Clause 3 "preference".

2. The employer shall in respect of any person employed pursuant to sub-clause 1 (b) of this clause, arrange to introduce such person within fourteen days of the commencement of such employment to a duly accredited shop steward or union delegate for the purpose of making application for union membership. Such person and the accredited shop steward or union delegate shall be allowed reasonable time within working hours and without loss of pay for the purpose of making such application.

The employer shall in relation to all persons commencing employment on or after 1 February, 1977 give preference to members of the Union as hereinafter prescribed in relation to the matters hereinafter specified: -

In relation to the matter of engagement in any employment covered by the Award, the employer shall give preference to all members of the Union who have indicated to the employer their desire for employment by him within fourteen days after the receipt of the notice by the Union.

Provided that the employer shall be excused from the obligation to give preference in accordance with this sub-clause in the case of any particular member of the Union if at the time of making the engagement the employer has reasonable grounds to believe (and does believe) that the member is unsuitable for the duties of the employment, being work the nature of which was notified to the Union pursuant to sub-clause 1 (c). The employer shall not, within the meaning of this sub-clause, have reasonable grounds for believing that an employee is unsuitable for the duties of the employment unless he has made reasonable enquiries in the circumstances, including the giving of a reasonable opportunity to the employee to establish his suitability.

The provisions of this clause shall not apply and need not be observed in respect of: -

(a) Persons who commenced employment before 1 February, 1977, and

(b) Persons holding current certificates under Section 47 (3) of the Conciliation and Arbitration Act.

This variation shall take effect from 1 February, 1977 and remain in force for a period of six months thereafter.

An appeal was brought to the Full Bench of the Commission against the insertion of this clause in the Award but the appeal was dismissed. Prohibition is sought against the insertion of this clause in the Award.

A number of grounds have been advanced on behalf of the applicant to support the submission that the award made in the present case was invalid but the principal ground upon which prohibition is sought is that the making of an award in terms of cl. 38 transgresses the provisions of s. 47 of the Conciliation and Arbitration Act 1904 Cth. Sub-sections (1) and (2) of that section are as follows:

(1) The Commission may, by an award, or by an order made on the application of an organization or person bound by an award, direct that preference shall, in relation to such matters, in such manner and subject to such conditions as are specified in the award or order, be given to such organizations or members of organizations as are specified in the award or order.

(2) Whenever, in the opinion of the Commission, it is necessary, for the prevention or settlement of an industrial dispute, for ensuring that effect will be given to the purposes and objectives of an award, for the maintenance of industrial peace or for the welfare of society to direct that preference shall be given to members of organizations as provided by the last preceding sub-section, the Commission shall so direct.

It was held in Wallis' Case [23] and Findlay's Case [24] that s. 47 is the source of the power of the Commission by any award or order to direct that preference be given to organizations or members of organizations. These cases were considered in the Altona Case [25] . By a majority the Court held that a clause in the following terms (so far as they are presently relevant) could validly be inserted in an award by the Commission:

An employer shall observe the following procedure in engaging employees for employment under the Award.

(a) A member of the union or a person holding a current certificate under s. 47 (3) of the Conciliation and Arbitration Act may be employed at any time.

Any other employee may be employed not less than twenty one days after the employer has notified the union that an opportunity for employment exists and of the nature of the work involved in the employment.

Provided that in an emergency an employer may engage an employee for not more than three days without complying with the requirements of this clause, but shall not thereafter continue or extend the employment and shall not renew it except after notification in accordance with this clause and subject to cl. 3 [sic]. "Preference".

An employer shall give preference to members of the union as hereinafter prescribed in relation to the matters hereinafter specified -

In relation to the matter of engagement in any employment covered by the Award, the employer shall give preference to all members of the union who have indicated to the employer their desire for employment by him within fourteen days prior to the giving of the relevant notice under cl. 2 (b) [sic], or who so indicate, either directly or through the union, within fourteen days after the receipt of the notice by the union.

Provided that an employer shall be excused from the obligation to give preference in accordance with this sub-clause in the case of any particular member of the union if at the time of making the engagement the employer has reasonable grounds to believe and does believe that the member is incapable of performing the duties of the employment, being work of the nature of which was notified to the union pursuant to cl. 2 (b) [sic]. An employer shall not, within the meaning of this sub-clause, have reasonable grounds for believing that an employee is incapable of performing the duties of the employment, unless he has made reasonable enquiries in the circumstances including the giving of a reasonable opportunity to the employee to establish his capacity.

1. (1949) 78 C.L.R. 529. 2. (1950) 81 C.L.R. 537. 3. (1972) 126 C.L.R. 529.

It is submitted that, by inserting par. 1 (b) in Pt A of cl. 38, the Commission significantly departed from the form of clause which was held to be valid in the Altona Case and thereby transgressed the limits of the power conferred by s. 47. It has been submitted that par. 1 (b) is a grant of preference to persons not members of an organization when the limit of power under s. 47 is the grant of preference to organizations or members of organizations.

No reliance has been placed by the respondent Union on s. 60 of the Act in order to support a submission that the award cannot be challenged. Rightly so in the present case. In so far as the argument on invalidity has been based on constitutional grounds there is no need to reiterate that a provision such as s. 60 cannot preclude an examination of constitutional validity. In so far as the argument is based on the ground that the limitations of s. 47 have been transgressed, the presence in the Act of s. 60 nevertheless requires it to be determined whether there is a manifestation of legislative intention that s. 47 should constitute an inviolable restraint upon the power of the Commission.

In R. v. Metal Trades Employers' Association; Ex parte Amalgamated Engineering Union, Australian Section [26] Dixon J. said:

No doubt there are instances in the Act where imperative duties or inviolable limitations or restraints are imposed by the Act on the Arbitration Court or the commissioners. When that is the case invalidity affects any transgression of the limitation or restraint and a mistaken decision that the duty is less extensive than it is does not relieve the court or the commissioner from its imperative obligation. In such cases prerogative writs will issue for the enforcement of the duty or restraint. This approach was elaborated by Dixon J. in R. v. Hickman [27] . The decisions in Wallis' Case [28] and Findlay's Case [29] support the view that it was the legislative intention that s. 47 should impose an inviolable restraint on the power of the Commission by award to direct preference in terms wider than that for which the section provides. 1. (1951) 82 C.L.R. 208, at p. 248. 2. (1945) 70 C.L.R. 598, at pp. 614-617. 3. (1949) 78 C.L.R. 529. 4. (1950) 81 C.L.R. 537.

It is perhaps understandable that the Commission should depart from the form of the clause considered in the Altona Case [30] only so far as might be necessary in order to incorporate any variation from the effect of the particular clause there considered; but it must be said that the form of clause both in the Altona Case and in the present case is not of simple construction. Pt A purports to deal with method of engagement and Pt B with preference, but the two parts must be construed form one scheme of preference. Though the actual preference of one member of an organization over other persons at the moment of engagement is directed to be given by virtue of Pt B and though Pt A is part directed to prescribing the manner and the conditions on which the preference is given, the two parts must be read together as a scheme.

It has been frequently stated that the concept of preference requires that the member of an organization or members of organizations be given preference over others. It must be made clear who those others are. It need not be over all others. It may be over all except a described person or group of persons. In this way s. 47 (or rather its predecessor, s. 56) has been described as the source of power to make a binding award or order with respect to a question how far employment is to be available to persons who are not members of a particular organization. In Wallis' Case Dixon J. said [31] :

The powers of a conciliation commissioner to make a binding award or order with respect to a question how far employment is to be available to persons who are not members of a particular organization are, as I think, conferred by s. 56 of the Commonwealth Conciliation and Arbitration Act 1904-1948 and do not go beyond the order or direction for preference which that section authorizes. That appears to me to be the true intention of the Act. See also per Dixon J. in Findlay's Case [32] : s. 56 is the source of the power of conciliation commissioners to make any award or order with respect to a question how far employment is to be available to persons who are not members of an organization. 1. (1949) 78 C.L.R., at p. 549. 2. (1950) 81 C.L.R., at p. 549.

Paragraphs (b) and (c) of cl. 38 (A) (1) deal with the question how far employment is to be available to persons not members of the respondent Union. In respect of persons who fall within those clauses, the applicant may employ them although they are not members of the respondent Union. But par. (c) must be read in conjunction with the provision in Pt B that the employer shall give preference to all members of the Union who have indicated to the employer their desire for employment by it within fourteen days after the receipt of the notice by the Union. Thus the employer has in respect of those falling within par. (c) only a limited right to make employment available. But in respect of those who fall within par. (b) in cl. 38 (A) (1) the employer has an unlimited right to make employment available.

It has been submitted on behalf of the applicant that the effect of the introduction of par. (b) into cl. 38 (A) (1) is to direct that preference be given to persons who fall within its terms over persons (other than members of the Union) who fall within par. (c) and who are thereby subject to the operation of Pt B (a). However, I do not think that an effect of this kind can change a provision which prescribes how far employment is to be available to persons who are not members of an organization into a provision which positively gives preference to those persons. The Commission in exercise of its power under s. 47 is not bound to give preference to an organization or members of an organization over every person or class of persons who are not members. Its power to prescribe the persons, not being members, who shall not be affected by a direction that preference be given to members is not circumscribed by the provisions of s. 47. The description of persons, not being members, for whom employment may nevertheless be available may relate to age or sex or any other factor which the Commission may lawfully select. It happens that in the present case the class of persons selected may, and probably will, advance the opportunities of the respondent Union to enrol further members therein. On the other hand, the provision may be regarded as a concession to the employer from the width of the preference granted in the Altona Case [33] . It was so regarded by Gaudron J. when she stated her reasons for introducing the provision:

The difficulties of recruitment of suitable new employees will be guarded against by provision that, subject to certain requirements, a person who agrees with the Company that he will join the Union within fourteen days of the commencement of his employment may be employed at any time. But both the particular consequence of the provision and the motives for its introduction are strictly irrelevant for present purposes. What is important is that the exclusion of a class from a direction for preference is not a grant of preference to that class. The extent of exclusion of non-members is simply the measure of the preference to members of an organization. 1. (1972) 126 C.L.R. 529.

For these reasons I am of the opinion that the principal challenge to the validity of cl. 38 fails. It is then submitted that if s. 47 can operate so that a consequence of its operation is that membership of the relevant organization or organizations is in effect compulsory then it is beyond constitutional power. Associated with this submission is the further submission that because a consequence of the implementation of the Altona decision has been to put into operation a kind of de facto compulsory unionism the decision in Altona should be reviewed. Both submissions are based on the assumption that compulsory unionism is unconstitutional. There is no basis for that assumption. The question may be undecided whether there would be power under s. 51 (xxxv.), in the absence of s. 47 of the Act, by award to direct compulsory unionism; that question is best left until it arises. However, that is a different question from the question whether preference in employment to an organization or its members falls outside constitutional power if the form of preference awarded has a consequence that membership of an organization is a practically necessary qualification for employment. There is in my opinion no reason why it should. In the Altona Case the Court specifically considered the question and Menzies J., with whom Owen J. agreed, said [34] :

It does seem to me that if what I do regard a claims for preference, were to be granted, the long term consequence would be that clerical employment in the industry would be restricted to unionists. More and more unionists would be engaged and more and more non-unionists would be dismissed. Nevertheless, I do not regard this likely consequence as turning what are prima facie claims for preference into claims for monopoly of employment for unionists. It is necessary to examine what is claimed rather than the long term consequences of the granting of what is claimed in order to determine whether the claims are in relation to an industrial matter. Regarding the claims as I do, I reject the contention that, either separately or together, they constitute, not a claim for preference, but, a claim for monopoly of employment. I respectfully agree with and adopt these observations. 1. (1972) 126 C.L.R., at pp. 558-559.

Next it was submitted that the award went outside the ambit of the claim because it was an award of preference to members of the respondent Union and was not limited to financial members as in the log. The history and background of the dispute in the applicant's working force show that a primary objective of the Union was not only to enrol members but also to get members to become financial. The Commission did not see fit to award preference only to financial members. It thereby gave the Union less than it was claiming in an industrial sense, even if the number of "members" was considerably larger than the number of "financial members". Numbers do not necessarily determine ambit.

Then it is submitted that the claim in the log could not give rise to an industrial dispute because in the light of s. 47 preference only to financial members of an organization was not an industrial matter. This submission assumes that there is an identity between when a matter of preference may be an industrial matter which may give rise to an industrial dispute and when the preference may be included in an award under s. 47; but even if this were correct, the submission requires a construction of s. 47 (1) whereby preference could only be directed to be given to all members of an organization, not to some, i.e. financial, members. I cannot give s. 47 (1) this construction. The natural construction of the words is "such organizations and (such) members of organizations as are specified in the award or order". The word "such" where it first appears naturally govern the word "members" as well as the word "organizations" which immediately follows it. Thus the Commission may direct the preference for such members of an organization as it specifies in the particular award or order.

I am therefore of the opinion that none of these grounds relied upon by the applicant can be sustained. A further matter was sought to be raised on behalf of the Attorney-General of Queensland, who intervened. It was submitted that the dispute created by the log of claims of which cl. 41 formed part had come to an end upon the making of the consent award on 24th March 1976. But the subject matter of preference was reserved by the parties who agreed to discuss and consider it. Such an agreement does not terminate a dispute. On the contrary it provides quite good evidence that the dispute has not been settled. But in any case neither party to the award, applicant or respondent, suggested that the industrial dispute had, in respect of the question of preference, been terminated by the making of the award. Whether or not there was a continuing dispute on this question was a question of fact. It can hardly be raised by a lone intervener at this stage in proceedings.

As this case covers much of the same ground as Ex parte Transport Workers' Union [34a] , I will not repeat in detail my opinion of the extent of the constitutional power or the operation of s. 47 of the Conciliation and Arbitration Act 1904, as amended.

In my opinion, Starke J.'s views in Waterside Workers' Federation of Australia v. Gilchrist Watt & Sanderson Ltd. [35] and in Anthony Hordern & Sons Ltd. v. Amalgamated Clothing & Allied Trades Union of Australia [36] , on the predecessor of s. 47 were correct. The departure from that view in R. v. Findlay; Ex parte Victorian Chamber of Manufactures [37] and R. v. Wallis; Ex parte Employers' Association of Wool Selling Brokers [38] was an error which should not be perpetuated. It leads to unnecessary complexity and confusion and hinders the Australian Conciliation and Arbitration Commission's performance of its functions.

1. (1924) 34 C.L.R. 482, at p. 549. 2. (1932) 47 C.L.R. 1, at p. 10. 3. (1950) 81 C.L.R. 537. 4. (1949) 78 C.L.R. 529.

Constitutional industrial disputes. The phrase, "industrial disputes", in s. 51 (xxxv.) of the Constitution includes disputes over claims for employment or work to be given preferentially or exclusively to members of unions or a particular union.

The conciliation and arbitration power in s. 51 (xxxv.), either alone or supplemented by the incidental power in s. 51 (xxxix.), enables Parliament to authorize an arbitral tribunal (such as the Australian Conciliation and Arbitration Commission) to make an award for employment or work to be given preferentially or exclusively to members of unions or of a particular union. Such an award may be made in order to settle or prevent an industrial dispute extending beyond the limits of any one State, or for the effectuation or protection of an award.

Statutory industrial disputes. In my opinion, disputes arising between employees and employers (or their organizations) over claims for preference to unionists or exclusion of non-unionists, are statutory industrial disputes; that is, they come within the definition of "industrial disputes" in the Conciliation and Arbitration Act in that they are disputes concerning "industrial matters" (see s. 4). Apart from the specific paragraphs in the definition of "industrial matters", they are "matters pertaining to the relations of employers and employees". The historical struggle between employers and employees over the existence, recognition and role of trade unions makes it clear that claims for preference to unionists and exclusion of non-unionists pertain to the relations of employers and employees. The result is that these relations are generally not spelled out in individual contracts of employment but in awards, agreements and legislation which provide a significant role for trade unions.

(1) The Commission may, by an award, or by an order made on the application of an organization or person bound by an award, direct that preference shall, in relation to such matters, in such manner and subject to such conditions as are specified in the award or order, be given to such organizations or members of organizations as are specified in the award or order.

(2) Whenever, in the opinion of the Commission, it is necessary, for the prevention or settlement of an industrial dispute, for ensuring that effect will be given to the purposes and objectives of an award, for the maintenance of industrial peace or for the welfare of society to direct that preference shall be given to members of organizations as provided by the last preceding sub-section, the Commission shall so direct.

In my opinion, s. 47 gives an ancillary power to grant preference. For its application, an antecedent dispute about preference is unnecessary.

The Rt. Hon. B. M. Snedden Q.C. argued for the prosecutor that s. 47 does not provide for award of preference to any class of members within a registered organization. It seems to me that Mr. Snedden's argument is correct. Very clear language would be necessary before a section such as s. 47 should be construed as providing for preference to a class of members of an organization over other members. This construction would not be in harmony with other provisions of the Act. Section 144, for example, provides for entitlement to membership of an organization but not to a class within it. Sections 152, 153, 155 and 156 facilitate the ascertainment and proof of membership of organizations (or branches of organizations) but there is no such provision relating to membership of classes within the organization (other than branches). Application of s. 47 to classes within an organization could lead to divisiveness instead of encouraging the organization of representative bodies of employers and employees, which is one of the chief objects of the Act (s. 2).

The words, "as are specified", require the word, "such", to be implied. It could be implied before "members", or before "organizations" or before both. Its implication before "organizations" conforms with its express use in "such organizations". If it were not implied before "organizations", the result would run counter to the obvious intent of the section by omitting a requirement for specification of the organization whose members were being given preference. If "such" is implied before "organizations", there is no grammatical need to imply "such" also before "members" and to do so would introduce difficulties. If the word, "such", is implied before "members", this would suggest that the Commission not only may direct preference to such members as are specified in the award or order, but may only direct preference to such members as are so specified, that is it may not direct preference generally to members of a specified organization. It would be absurd if the members had to be specified in the correct sense of that term. The members to whom preference was to be given would have to be expressed clearly and certainly and in the award or order itself. (See Re Federation of Scientific and Technical Workers [39] ). The inconvenience of this is manifest. The inconvenience would be magnified if the operation given to the former in s. 56 in R. v. Wallis [40] and R. v. Findlay [41] is applied to s. 47. Fresh interstate disputes would be required to confer on the Commission jurisdiction to add to the members specified in order to include new entrants to the workforce. Such a construction would be workable only by departing from the ordinary meaning of specification and allowing a general description to be treated as a specification.

1. (1945) 54 C.A.R. 647. 2. (1949) 78 C.L.R. 529. 3. (1950) 81 C.L.R. 537.

My conclusion is that the claim for preference to financial members of the Union raised an industrial dispute, in the constitutional and statutory senses, which the Commission was competent to settle under its general power. The application in terms of the claim also falls within s. 47 (the reference to "financial" being a condition within s. 47 (1)).

The omission from the award of any reference to financial members was within the Commission's competence for two reasons. Firstly, s. 47 itself gives ancillary power to grant the preference without necessity for an interstate dispute. Secondly, the Commission is not restricted to the specific relief claimed but may include in the award any matter or thing which it thinks necessary or expedient for preventing or settling the dispute, or preventing further industrial disputes (see s. 55). That section also provides sufficient authority for the form of the award made by Gaudron J. The detailed provisions which departed from the disputed claim were relevant, reasonably incidental to and appropriate to the settlements of the dispute (see Reg. v. Galvin; Ex parte Amalgamated Engineering Union [42] ; Reg. v. Clarkson; Ex parte General Motors-Holden's Pty. Ltd. [43] ). The Commission was therefore empowered to make the award.

1. (1952) 86 C.L.R. 34. 2. (1976) 134 C.L.R. 56.

The Attorney-General of Queensland, intervening, contended that the Commission had no jurisdiction to make the award of preference as the dispute arising from the claims (including that for preference) had ended prior to the preference award. The evidence gave no support to this contention, and it must therefore be rejected.

In this matter the prosecutor, Uniroyal Pty. Ltd., seeks writs of prohibition and certiorari directed to Gaudron J., a Deputy President of the Conciliation and Arbitration Commission, and to Sharp and Alley JJ. Deputy Presidents of the Commission, and to Mr. Commissioner Deverall who together constituted a Full Bench of the Commission which heard an appeal from the award made by Gaudron J.

The history of the matter may be shortly stated. It began with a log of claims served on Uniroyal Pty. Ltd. ("Uniroyal") and others by the Federated Miscellaneous Workers' Union of Australia ("the M.W.U.") on 26th May 1975 which was rejected. On 24th March 1976 the Commission made a consent award, the Plastics, Resins, Synthetic Rubbers and Rubbers (Uniroyal Pty. Ltd.) Award 1975, ("the Award") which was expressed to be binding upon the M.W.U. and Uniroyal. That award dealt with some only of the matters in dispute pursuant to the log of claims. Clause 41 of that log was as follows: "Absolute preference of employment shall be given to financial members of the Federated Miscellaneous Workers' Union of Australia", but no provision dealing with such preference was included in the Award. On 14th July 1976 the M.W.U. made an application to the Commission to vary the Award by the addition of a number of new provisions, the relevant one being a clause entitled "Preference to Financial Members of the Union". On 4th January 1977 Gaudron J. ordered that the Award should be varied by the insertion of a clause numbered 38 and headed "Preference to Members of the Union". The full text of that clause is set out in the judgment of my brother Mason and I do not repeat it here. It differed in some respects from the clause as sought by the M.W.U. and in particular extended the operation of the preference given by the clause to all members of the Union, whether financial or not. Prior to that award coming into operation Uniroyal appealed to the Full Bench of the Commission, pursuant to s. 35 of the Conciliation and Arbitration Act 1904, as amended ("the Act") and obtained an order under s. 35 (8) staying the operation of the variation. On 30th May 1977 the Full Bench by majority dismissed the appeal and discharged the stay order. Thereupon the prosecutor sought from this Court an order nisi for writs of prohibition and certiorari. That application was referred to the Full Court and an order made staying the proceedings in and the orders of the Commission.

Several questions arising out of the making of this variation award were argued but it is not necessary for me to deal with them all. It is convenient to mention first an argument put on behalf of the State of Queensland intervening, namely, that the making of the consent award had brought the industrial dispute to an end so that there was no longer any basis on which a variation of this kind, dealing with the matter not dealt with in the Award, could be made. I agree with the reasons of my brother Mason for regarding this argument as misconceived and I need not add anything to those reasons.

It was argued for the prosecutor that the variation of the Award extended beyond the ambit of the dispute in that, though the demands in the log were for preference for "financial members of the Union", the preference clause inserted by the variation applied to "members of the Union". In my opinion this point is well taken. I would entirely agree that the Commission is not restricted in its powers to the making of an award in terms precisely those formulated in the log of claims, the rejection of which resulted in the industrial dispute or in a counter-log. It is well settled that the Commission may in settling a dispute falling within its jurisdiction do so by making any provision which is necessary or expedient for the settlement of that dispute but that does not overcome the limitations imposed by the requirement that the Commission may not deal with matters outside the ambit of the dispute. With due respect to those who take the contrary view, it seems to me that Australian Tramway Employees' Association v. Commissioner for Road Transport and Tramways (N.S.W.) [44] and R. v. Commonwealth Court of Conciliation and Aribtration; Ex parte Kirsch [45] do not establish the proposition that the Commission may extend a benefit sought in a log of claims to persons outside the class of persons for whom the benefit is claimed in the log. The former case did decide that an award could introduce a new method of adjusting the basic wage which differed from the rival methods of the parties but that was because the dispute included the topic of the mode of adjustment. The Court did however hold that a clause which involved a discrimination between married and unmarried men was invalid because no such distinction was involved in the original dispute - see per Dixon J. [46] and per Evatt and McTiernan JJ. [47] . The latter case dealt with a question as to whether the dispute in that particular case extended to wages to be paid to non-unionists. It was held by the majority that the original dispute related only to claims for wages and conditions of unionists, though it also claimed that no one other than a unionist should be employed, and that the Court had no power to deal with wages and conditions of non-unionists as a matter incidental to composing the dispute between the parties. The minority took a view of the ambit of the dispute which enabled them to regard wage fixing for non-unionists as expedient for its settlement. That case thus deals with a situation very similar to the present, in that a benefit claimed for one category was by an award extended to another in respect of which no claim was made and no dispute existed. There is no doubt that an award may be made in terms different from those contained in the log of claims, but that is not to say that it may step outside the ambit of the dispute. Equally it does not seem to me that the undoubted power to deal with "threatened, impending and probable industrial disputes" warrants an award going beyond the area of an actual dispute by extending the benefits of the award to persons in respect of whom no claim is made in the log, the rejection of which is the only basis for the dispute with which the Commission is concerned. The Commission did not here find that there was any threatened, impending or probable dispute and did not purport by the making of this variation of the Award to seek to prevent some threatened, impending or probable dispute from arising.

1. (1935) 53 C.L.R. 90. 2. (1938) 60 C.L.R. 507. 3. (1935) 53 C.L.R., at pp. 103-104, 106-108. 4. (1935) 53 C.L.R., at pp. 109-111.

It seems to me to be clear that, in the settlement or further settlement of this dispute, the Commission's powers in relation to preference are limited to dealing with preference for those persons for whom preference was claimed, namely, financial members. I can see no basis for regarding an extension of the benefit to other members as being incidental to an effective settlement of this dispute. In my opinion therefore this would be sufficient to demonstrate that there was no jurisdiction to make the variation in question.

The next argument was that the making of an award granting preference to unionists was beyond constitutional power but in my opinion this argument is misconceived for the reasons stated by my brother Mason with which I agree.

The remaining argument was that the Award, though similar to the log of claims in question in Reg. v. Holmes; Ex parte Altona Petrochemical Co. Ltd. ("the Altona Case") [48] , was not authorized by that decision or the reasoning upon which it was based. The argument was primarily directed to the differences between this variation Award and that log of claims. It is not necessary to restate the reasons given in that case by the majority. They are summarized in the quotation from the judgment of Menzies J. which is set out in the reasons for judgment of my brother Mason, ante, p. 213.

The log of claims in the Altona Case is set out in the report of that case [49] . It too fell into two parts, one headed "Method of Engagement" and the other headed "Preference". The former part required an employer to observe a stated procedure in engaging employees and provided in effect that a member of the Union could be employed at any time but that any other employee might be employed only after a period of not less than twenty-one days from the time when the employer notified the Union that an opportunity for employment existed. The part headed "Preference" required that an employer should give preference to members of the Union in relation to a number of matters of which only the first is now material. That paragraph required the employer to give preference in engagement in any employment covered by the award to all members of the union who had indicated to the employer their desire for employment within fourteen days prior to his giving the relevant notice to the Union or within fourteen days after the receipt of the notice by the Union. It was held by the majority of the Court that that clause was not a prohibition on employment or a regulation of employment, but was a provision incidental to making the award of preference effective by ensuring that those who were entitled to preference had a real opportunity of obtaining it (see per Menzies J. [50] ).

1. (1972) 126 C.L.R., at pp. 535-537. 2. (1972) 126 C.L.R., at p. 557.

The first point to be made with respect to the form of cl. 38 (inserted by the variation award in the present case) is that its terms are materially different from the log in the Altona Case in the operation of the subclause headed " Method of Engagement ". Part A sub-cl. 1 speaks of a "procedure in engaging employees". It provides in par. (a) that a member of the Union may be employed at any time, and in par. (b) that, "Subject to sub-cl. (2) of this clause, a person who agrees in writing with the employer that he will within 14 days of commencement of employment apply to join the union may be employed at any time." Paragraph (c) provides that any other employee may be employed not less than fourteen days after the employer has notified the Union that an opportunity exists for employment. Subclause (2) is a machinery provision for introducing the new employee to the Union delegate with a view to arranging an application for membership.

Although it was said in argument that Pt A did not give a preference at all but was merely concerned with the method of engagement, it is in my opinion clear that its operation goes far beyond its heading. It is my opinion plain that the operation of these three paragraphs is to give a preference in employment to those falling within par. (a) and par. (b) because where the employer wishes at any time to take on an employee any person in each of those two categories who applies may be employed, whereas other persons may not. It is in my opinion impossible to regard these provisions as not constituting a preference in employment or engagement. It was however argued that these clauses were procedural in character and ancillary to Pt B, headed " Preference ", within the meaning of those expressions as used in the Altona Case [51] . This submission however is not reconcilable with the language used.

Part B begins with a general statement that the employer shall in relation to all persons commencing employment on or after 1st February 1977 give preference to members of the Union in relattion to the matters thereinafter specified. Paragraph (a) deals with "engagement" and requires that the employer shall give preference to all members of the Union who have indicated to the employer their desire for employment by him within 14 days after the receipt of the notice by the Union, presumably the notice referred to in Pt A cl. 1 (c). The words used were said to preclude the employer from employing a member of the Union who had not so indicated his desire for employment, notwithstanding the clear words of Pt A cl. 1 (a). It was further said that those words precluded the employer from employing a person not a member of the Union, but who agreed in writing to join the Union, again notwithstanding the clear words of Pt A cl. 1 (b).

Whatever the problems of construction may be in the reconciliation of Pt A and Pt B, the fact emerges beyond doubt that the effect of the provisions is to give a preference in employment or in engagement to members and to non-members who enter into the agreement in writing. No differentiation is made between those two categories because each may be employed at any time. This will be so even if it is right to say, as was argued, that, when the appropriate notice is given under Pt A cl. 1 (c), Pt B operates to the exclusion of the clear permission given in Pt A.

In my opinion these provisions suffer from two fatal defects in addition to the one to which I have already referred. The first is that to give preference to a class of non-members of the union, by placing them in a position of equality in relation to engagement with members of the Union, is plainly outside the ambit of the dispute created by the rejection of the 1975 log of claims. Such a provision cannot be validly included in an award. I do not consider that it can be said to be incidental to the making of an effective award in respect of preference whether to financial members of the Union as claimed in the log or to members generally, whether financial or not. On that ground therefore there was no jurisdiction in Gaudron J. or the Full Bench to make an award in those terms.

It is a necessary consequence of the exclusion or the deferment of employment of the persons referred to in sub-cl. 1 par. (c) that pars (a) and (b) operate as a preference equally to members of the Union and to the class of non-members referred to in par. (b). Such a provision cannot be regarded as merely assisting or making effective the preference to members of the Union.

The critical difference between the present case and the Altona Case is that in the Altona Case it was found possible to regard the relevant clause as ancillary to the grant of preference in the sense of being a means of making the preference effective. It is not necessary to re-examine the differences between the majority and the minority in that case because the present case is plainly distinguishable. There is here a demand that some non-unionists should stand equally with members of the union in being preferred to other non-unionists. This provision simply has nothing to say on the question of preference of unionists over non-unionists. Indeed it permits the choice of non-members of the Union in preference to members of the Union because it does not distinguish between the two categories which may be employed "at any time". Assuming that the mode of reconciling Pt A with Pt B is to treat Pt B as prevailing over Pt A whenever the notice referred to has been given, it does provide some form of preference to members of the Union, but under the terms of Pt A that point may never be reached.

It was further argued that s. 47 is the only power under the Act to give preference in employment to some persons over others and what it provides for is preference to members of a union, or perhaps to some members of a union, but it does not contemplate preference to non-members. I agree that the cases referred to by my brother Mason establish that s. 47 is the only power given by the Act to grant preference and that that is a power with respect to preference to members of a union. I do not think that it can be said that to grant a preference in equal terms to members of the Union and to one class of non-members is a permissible exercise of the power under s. 47.

It was also argued that the effect of the variation would be to constitute a monopoly of employment for members of the Union because a non-member could join the Union at the moment of being employed, or immediately prior thereto, or within fourteen days thereafter, and thus be employed so as to defeat any entitlement to a preference to those who were already members of the Union. This argument is not readily distinguishable from the argument which was unsuccessful in the Altona Case and it is not necessary to pursue it.

It was submitted on behalf of the M.W.U. that if the provisions of Pt A were beyond the jurisidiction of the Commission it should be severed, so as to leave operative a provision covered by the Altona Case. Even if that would be the result, severance is not here possible because it would leave operative a completely different scheme from that contained in the variation award. That in itself is sufficient to demonstrate that severance is not possible.

It is not I think necessary to consider a number of other arguments which were advanced. The points which I have referred to above seem to me to provide an ample basis for concluding that this variation award lay outside the power of the Commission. Accordingly, it is proper to grant an order nisi for a writ of prohibition and to make such order absolute.