R v Findlay; Ex parte Victorian Chamber of Manufactures [1950] HCA 53

High Court of Australia Latham C.J. Dixon, McTiernan, Webb and Kitto JJ. R v Findlay; Ex parte Victorian Chamber of Manufactures [1950] HCA 53

ORDER Order absolute with costs for a writ of prohibition prohibiting enforcement of and further proceedings upon clause 61 of the award made on 30th March 1950 in disputes No. 158 of 1949 and No. 442 of 1949.

Cur. adv. vult.

The following written judgments were delivered:—

Dec. 1 Latham C.J.

This is the return of an order nisi to prohibit further proceedings upon an award made by a conciliation commissioner, Mr. G. A. Findlay. The challenged provision is supported by the respondent union as a valid award of preference to unionists under s. 56 of the Commonwealth Conciliation and Arbitration Act 1904-1949. The prosecutors, who are employers or registered organizations of employers, contend that the challenged provision of the award deals with a matter which was not within the ambit of the industrial dispute which was settled by the award and, further, as a separate argument, that that provision is invalid as being unauthorized by the statute.

The award was made in settlement of a dispute created by the refusal of employers to agree to the demands made in a log which was served by the union in January 1949. That log contained in par. 244 the following claim:—

244. Compulsory Unionism.

No employer (subject to the provisions of any relevant Commonwealth law in force) shall employ any person on work covered by this Log unless such person is a financial member of the Clothing and Allied Trades Union of Australia.

In August 1949 this Court decided in the case of R. v. Wallis; Ex parte Employers Association of Wool Selling Brokers [1] that an award could not give a monopoly of employment in an industry to the members of an organization. In view of the decision in Wallis' Case [1] , it must be conceded, and it was not denied, that an award could not include the provision for compulsory unionism which was claimed; that is, no valid award could be made prescribing compulsory unionism.