R v Watson; Ex parte Australian Workers' Union

R v Watson; Ex parte Australian Workers' Union - [1972] HCA 72 - HCA 1972 case summary — Zoe

[55]

The Federation shall consist of an unlimited number of persons employed or usually employed as Builders' Labourers throughout Australia on or about any building, or assisting any bricklayer, mason, plasterer, carpenter, plumber or any tradesman engaged in building operations, or employed on any making or contracting job in wood, stone, brick, concrete, iron or steel, or combination of these or other materials incidental to building construction, and any labourer engaged in the construction, repair, demolition or removal of buildings, or as scaffolder, rigger, gear hand, gantry hand or crane hand or as dogman, or as drainer on all building contracts, and any labourer excavating ground for foundations and basements of buildings, or levelling ground on a proposed building site, or doing concrete work, tarpaving or asphalt work, or mortar or concrete mixing in connection with, or incidental to the foregoing operations, together with such other persons whether employees in the industry or not, as have been appointed officers of the Association and admitted as members thereof. It was suggested during the hearing that the reference at the beginning of the clause to "persons employed or usually employed as Builders' Labourers" had the effect that all of the following provisions of the clause referred only to persons employed to assist some tradesman or other skilled operator engaged in building operations. The subsequent use in two places of the unqualified expression "any labourer" is one of several features of the language of the clause which make its construction difficult. But I am prepared to assume in favour of the federation that the clause is not confined in its application to persons who are merely assistants in the doing of work performed, with that assistance, by some other persons. I am prepared to assume, also, that an employee is not excluded from the scope of the clause merely for the reason that his own work requires some degree of skill for its performance.

[61]

The prosecutor, the Australian Workers' Union, has obtained an order nisi for a writ of prohibition directed to the respondents who are, respectively, a member of the Commonwealth Conciliation and Arbitration Commission ("the commission"), the Australian Builders' Labourers' Federation ("the federation"), the Victorian Chamber of Manufactures and a number of companies which engage in the manufacture of ready mixed concrete, prohibiting them from proceeding further in three matters pending in the commission, "in so far as such matters concern the wages and working conditions of persons employed as operators of concrete batching plants on and off the site". In each of these matters the federation served on certain employers a log of claims and a letter of demand and notified the Industrial Registrar of the likelihood or the existence (the notification is ambiguous) of an industrial dispute. In two cases the commission made a formal finding that an industrial dispute within the meaning of the Conciliation and Arbitration Act 1904 Cth (as amended) ("the Act") exists in the States of New South Wales, Victoria, South Australia, Tasmania and Western Australia between the federation and the employers named in the respective logs of claims and that the matter in dispute is the wages and working conditions in the building industry in the said States. No similar finding was made in the third matter but all matters were listed for hearing together and the prosecutor was granted leave to intervene in all of them. The logs were in the form of an award and the clause of the draft award which set out the kinds of employment to which it was intended to apply (the scope clause) included a reference to persons employed as "operators of concrete batching plants on or off the site". During the course of the proceedings before the commission it was submitted on behalf of the employers, with the support of the prosecutor, that the persons employed in off-site concrete batching plants were not eligible to be enrolled as members of the federation and that therefore the commission had no jurisdiction to grant the federation's claim so far as it concerned such persons. The Commissioner considered these submissions but rejected them. He said:

[73]

A determination or finding of the Commission upon a question as to the existence of an industrial dispute is, in all courts and for all purposes, conclusive and binding on all persons affected by that question. However, notwithstanding that section, "the existence of an industrial dispute extending beyond the limits of any one State is under the Constitution a jurisdictional fact which on prohibition cannot be controlled by the finding of the tribunal against which the writ of prohibition is sought": Reg. v. Portus; Ex parte McNeil [1] . It is now well settled that the Parliament has no power to deprive this Court of the jurisdiction given to it by s. 75 (v) of the Constitution to issue a writ of prohibition against an officer of the Commonwealth and that a commissioner appointed under the Act is "an officer of the Commonwealth" within that section: see R. v. Blakeley; Ex parte Association of Architects, etc, of Australia [2] , and cases there cited. Of course, no occasion will arise for the exercise of the jurisdiction conferred by s. 75 (v) to grant prohibition if the circumstances are such that the remedy of prohibition does not properly lie, and in cases where there is no relevant limitation of constitutional power it may become necessary, in order to decide whether prohibition lies, to reconcile, as a matter of construction, those statutory provisions which impose limits on the power or authority of the tribunal concerned with other provisions which limit or take away the right to prohibition. Some of the many authorities that deal with that question are cited in Reg. v. Judges of the Commonwealth Industrial Court; Ex parte Cocks [1] . If however, under the Constitution a tribunal cannot validly be given power in a particular matter, a statutory provision purporting to exclude prohibition in such a matter will be ineffective: R. v. Murray; Ex parte Proctor [2] . Moreover, "power to determine conclusively a question upon which jurisdiction is made to depend cannot validly be conferred upon a person or body in such manner as to enable a jurisdiction to be exercised which would exceed the limits of constitutional power": R. v. Blakeley; Ex parte Association of Architects, etc. of Australia [3] . A commissioner cannot validly be given power conclusively to determine the question whether an industrial dispute exists, because under s. 51 (XXXV) of the Constitution he can only have jurisdiction conferred upon him if an industrial dispute does exist. In so far as s. 60 (2) of the Act purports to give conclusive effect to an erroneous finding that an industrial dispute exists it will be unconstitutional and ineffective. 1. (1961) 105 C.L.R. 537, at pp. 540-541. 2. (1950) 82 C.L.R. 54, at p. 71. 3. (1968) 121 C.L.R. 313, at p. 325. 4. (1949) 77 C.L.R. 387, at p. 399. 5. (1950) 82 C.L.R., at p. 89.

At a glance

Court

Decision date

Before

Source

Judgment (75 paragraphs)

Parties

Cited By (1)