R v Portus; Ex parte Australian Air Pilots Association [1953] HCA 97

High Court of Australia Dixon C.J. Webb, Fullagar, Kitto and Taylor JJ. R v Portus; Ex parte Australian Air Pilots Association [1953] HCA 97

ORDER Order absolute for writ of prohibition prohibiting the respondent conciliation commissioner from further proceeding or dealing with the alleged industrial dispute except in so far as it exists between the respondent company and the prosecutor in relation to the employees of the respondent company. Respondent company to pay the costs of the prosecutor.

Cur. adv. vult.

The following written judgments were delivered:—

Dec. 17 Dixon C.J.

The proceeding before us is an order nisi for a writ of prohibition directed to a conciliation commissioner. The commissioner has found that an industrial dispute exists between the respondent Qantas Empire Airways Ltd. and the prosecutor, the Australian Air Pilots' Association, which is an organization of employees registered under the Conciliation and Arbitration Act 1904-1952, and some thirteen airlines companies, which like the respondent company are employers. He proposes to proceed with the hearing and determination of the industrial dispute, and the prosecutor association seeks a writ of prohibition to prohibit him from doing so. The supposed dispute arises from the delivery of a log of claims by the respondent company to the Air Pilots' Association and to the thirteen airlines companies. The prosecutor association maintains that the delivery of the log could not, and did not, bring about an industrial dispute to which the authority of the conciliation commissioner attached. It could not do so having regard to the demand or demands made and the bodies upon which they were made. The log in fact is an attempt upon the part of an employer to create an industrial dispute between himself on the one side and on the other side an organization of employees and a number of employers engaged in the same kind of business as himself as to the rates of pay and the conditions upon which employees, whether members of an organization or not, shall be employed by the employer delivering the log and by the employers to whom it is delivered. The language of the demand goes even further, because it is not limited to employers to whom the log is delivered but claims that the wages and conditions under which aircraft pilots of employers generally in what is called the "airline operating industry" are working should be altered and that the log should govern the wages and conditions of employment of all such employees throughout the Commonwealth whether members of the organization or not. But for all that appears no practical difference may exist between the thirteen employers enumerated and the concerns covered by the expression "employers generally." According to the covering demand, the log was addressed to the employers enumerated, the organization and all other pilots employed by the respondent company and by the companies enumerated. But although the log was thus addressed to employees it was not served upon them or any of them. It was served upon the thirteen employers and the prosecutor association of employees. In a clause of the log headed "area and incidence" it is stated that the log shall be binding on the respondent company and on the employers enumerated in respect of their pilots whether members of an organization or not and on the prosecutor association and on all the members thereof.