R v Kelly; Ex parte Victoria [1950] HCA 7

High Court of Australia Latham C.J. Dixon, McTiernan, Williams, Webb and Fullagar JJ. R v Kelly; Ex parte Victoria [1950] HCA 7

ORDER Order absolute for a writ of prohibition prohibiting Frank D. Kelly, Conciliation Commissioner, the Meat and Allied Trades Federation of Australia and the Australasian Meat Industry Employees' Union from proceeding further upon clause 16a of the award made on 20th May 1948 in matters between the said Union and the said Federation as varied by the order of 1st September 1949 and upon the orders of the said Commissioner therein made on 8th December 1948 and 5th April 1949. The said Federation and Union to pay in equal shares the costs of the prosecutor including reserved costs.

Cur. adv. vult.

The Court delivered the following written judgment:—

May 4 Latham C.J., Dixon, McTiernan, Williams, Webb and Fullagar JJ.

This is the return of an order nisi for a writ of prohibition directed to Mr. F. D. Kelly, a Conciliation Commissioner, under the Commonwealth Conciliation and Arbitration Act 1904-1949 and others, prohibiting them from proceeding further upon four awards or orders dated respectively 20th May 1948, 8th December 1948, 5th April 1949 and 1st September 1949. The first of these instruments is an award made by Mr. Kelly in a dispute in which the Australasian Meat Industry Employees' Union was claimant and the Meat & Allied Trades Federation of Australia (an organization of employers) was respondent. This award dealt in detail with wages, hours of work, and many other matters. The order of 8th December 1948 provided that the "regulations, rules, customs, terms of agreements and conditions of employment" determined by the award should be "a common rule of the industries of butchering and the sale of fresh meat and the making for sale or distribution by wholesale of small goods and meat products" in the State of New South Wales (with the exception of the City of Broken Hill) and in the States of Victoria, South Australia and Queensland. The term "fresh meat" is defined. It is declared that "the common rule shall be binding upon" (a) the Australasian Meat Industry Employees' Union, its officers and members respectively, (b) the Meat & Allied Trades Federation of Australia and the members thereof, (c) all employers engaged in the above-mentioned industries and all proprietors of shops selling fresh meat in the aforesaid States, (d) all employees whether members of an organization or not engaged in the said industries in any of the occupations specified in the said award. The order of 5th April 1949 varied this order in a manner not material for present purposes.