//
© 2026 Zoe. All rights reserved.
Zoe is a legal information platform. Always consult the Federal Register of Legislation for authoritative text.
[1949] HCA 30
High Court of Australia
1949-07-01
Webb JJ
Original judgment source is linked above.
For the reasons I have given I am of opinion that the authority conferred upon the conciliation commissioner by the Act does not extend to making an order or award of the description sought by the Federated Clerks' Union of Australia.
It was urged, however, that even on this footing the facts did not disclose a proper ground for prohibition. Stated very compendiously the argument is that it does not appear that the commissioner will deal with the two matters otherwise than pursuant to s. 56 (1) and (2). But an order under s. 56 (1) or (2) is not what the union seeks. The objection was taken to the jurisdiction of the commissioner to make any award or order falling at all within the description claimed. The commissioner has nevertheless accepted jurisdiction over the application and the claim or demand. These facts in my opinion form a sufficient foundation for the remedy of prohibition. I think that the orders should be made absolute. An order should be made that the respondent, the Federated Clerks' Union of Australia, pay the costs of the prosecutors but not of the intervenants.
I agree that upon the proper interpretation of the Act (Commonwealth Conciliation and Arbitration Act 1904-1948) s. 56 is the only source of the powers of a conciliation commissioner to award preference. If the union's demand in each of the present cases is for preference, a direction by the conciliation commissioner to the employers purporting to enforce it would be beyond his powers. But neither demand is, in my opinion, for preference. It is a demand that the employers should not engage or retain in employment any person who is not a member of the union. That is different from a demand for preference. The gist of the demand is not preference to members of the union but exclusion of persons who are not members of it as a sanction to ensure that all employees are members of the union. If that is the correct view of each demand, I think that it is necessary to decide each case in accordance with the statutory definition of industrial matters. Section 4 of the Act says that this expression means "all matters pertaining to the relations of employers and employees." These are specific relations resulting from the employment. The subject of a demand does not become an industrial matter merely because it is made by employees on employers or by employers on employees. The essential characteristic of an industrial matter is that it is a matter pertaining to those relations which the employment creates between the employers and the employees. A worker's membership of a union is not one of those relations; and there is no such relation as to which it would be appropriate to say that membership of a union is a matter pertaining to it. Of course, the question of preference to unionists or discrimination against them are matters pertaining to the relations of employers and employees and these matters are included in the list of industrial matters specified in s. 4: see clause (j). An award granting preference to unionists or preventing discrimination would be made in respect of an industrial matter. But an award purporting merely to impose compulsory membership of the union on employees would not be an award in respect of any industrial matter.
It is a necessary ingredient of an industrial dispute which a conciliation commissioner has jurisdiction to settle that it is a dispute as to an industrial matter. This ingredient is missing in each of the present cases. The conciliation commissioner has no jurisdiction in either matter. Both matters had advanced to such a stage towards a hearing by the conciliation commissioner that it is proper to grant prohibition and the orders nisi should therefore be made absolute.
As s. 51 (xxxv.) of the Constitution is intended to ensure that industrial operations should continue without interruption due to inter-State disputes capable of being prevented or settled by conciliation or arbitration or both, so the Commonwealth Conciliation and Arbitration Act should be assumed to have the same purpose, until the contrary appears. The inter-State disputes which the Arbitration Court and the conciliation commissioners have jurisdiction to deal with are specified in the definition of industrial matters in s. 4; and the authority of the court and commissioners must be taken to be commensurate with the ambit of the particular dispute, unless the Act indicates otherwise.
Nowhere in the Act can I find any authority to exclude persons from employment because they are not members of a particular organization, or of a class within that organization, when such members are not available and willing to undertake the particular employment. There is in my opinion authority in s. 4 (i) to exclude children from occupations where only persons with a full sense of responsibility can safely be employed, although that should result in a shortage of labour and the termination of operations. Considerations of the safety of all employees could justify that.
Section 56 of the Act limits the authority to award preference otherwise given by s. 4 (j), as it limits preference to organizations and members of organizations. It indicates the intention of Parliament that preference should be so limited, notwithstanding the earlier provision in s. 4 (j). But preference does not require the exclusion of non-preferred persons from employment when the preferred class are not available and willing to do the work. That is not the meaning of preference. Whether s. 4 (j) because of the word "non-employment" includes a claim to have persons employed or to have them dismissed it is not necessary to decide. At all events it does not in my opinion give authority for the exclusion of persons from employment when no question like that of danger arises, and others do not want the work.
The orders nisi for prohibition should be made absolute.
R
Wallis
High Court of Australia Latham C.J. Rich, Dixon, McTiernan and Webb JJ. R v Wallis [1949] HCA 30