R v Tonkin; Ex parte Federated Ship Painters' and Dockers' Union of Australia [1954] HCA 38

High Court of Australia Dixon C.J. McTiernan, Webb, Fullagar and Taylor JJ. R v Tonkin; Ex parte Federated Ship Painters' and Dockers' Union of Australia [1954] HCA 38

ORDER Order nisi discharged with costs.

The following judgment of the Court was delivered by:—

Dixon C.J.

This is an order nisi for a writ of prohibition directed to a conciliation commissioner to restrain him from acting further in respect of an order or purported order by which he varied an award. The award is that which is called the Ship Painters' and Dockers' Award of 1940. It came into force in that year and had a fixed term of three years commencing from the first pay day after 1st April 1940. The award therefore expired in April 1943.

The order made by the conciliation commissioner inserted a new clause which was numbered "7a " in the award. It is headed "Prohibitions, Bans, Limitations or Restrictions" and is divided into two paragraphs. The first says: "The Federated Ship Painters' and Dockers' Union of Australia shall not in any way directly or indirectly be a party to or concerned in any ban, limitation or restriction upon the performance of work in accordance with this award." The second paragraph says: "The Federated Ship Painters' and Dockers' Union of Australia shall be deemed to commit a new and separate breach of the above sub-clause on any day on which it is directly or indirectly a party to any such ban, limitation or restriction."

Probably the new clause was numbered "7a " because, in the original award there is a cl. 7 which deals with overtime and contains a sub-clause worded in a similar manner but restricted to bans upon the working of overtime in accordance with the requirements of the clause.

The writ of prohibition is supported on a single ground, namely that the order is not within the power given by s. 49 to vary any terms of an award. There is no question of the constitutional sufficiency of the original dispute to support the provision contained in the new clause had it been included in the original award. That is a matter which has not been discussed before us.