R v Spicer; Waterside Workers' Federation of Australia, Ex p (No 2) [1958] HCA 17

High Court of Australia Dixon C.J. McTiernan, Webb, Fullagar and Taylor JJ. R v Spicer; Waterside Workers' Federation of Australia, Ex p (No 2) [1958] HCA 17

ORDER Discharge the order nisi for writ of prohibition with costs.

Cur. adv. vult.

The Court delivered the following written judgment:—

April 22 Dixon C.J., McTiernan, Webb, Fullagar and Taylor JJ.

The question we are called upon to decide in this proceeding is whether we should award a writ of prohibition directed to the learned judges of the Commonwealth Industrial Court prohibiting further proceedings upon two orders made in the purported exercise of the jurisdiction conferred on that court by s. 109 (1) (b) of the Conciliation and Arbitration Act 1904-1956. By that provision the court is empowered to enjoin an organisation or person from committing or continuing a contravention of the Conciliation and Arbitration Act or a breach or non-observance of an award. The word "award" is defined by s. 4 (1) to mean an award "made under this Act" and to include an order.

The orders of the Commonwealth Industrial Court which it is sought to prohibit were made by that court on 27th February 1958. They both relate to the same conduct or apprehended conduct on the part of the Waterside Workers' Federation but one order is expressed to restrain the breach of one sub-clause and the other order the breach of another sub-clause in the same clause in an award. The instrument is described as the Waterside Workers Award as varied. The operative words of the first of the two orders of the Commonwealth Industrial Court are to the effect that it is thereby ordered pursuant to s. 109 (1) (b) of the Act that the federation be enjoined until 4th March 1958 (that is for the next five days) from committing a breach of sub-cl. (m) of cl. 26 of the award, as varied, by action by the federation to prevent men from offering their labour and continuing in employment on the conditions prescribed in the said award. The five days have long since passed without any breach of the order and it might be thought that the order was exhausted and nothing remained to prohibit. To this rather evident objection the federation answers that the order also orders that body to pay costs and further that it reserves liberty to the Commonwealth Steamship Owners' Association, the organisation of employers obtaining the order, to apply for an extension of the time of operation of the order. This reservation, however, would surely be construed as referring to an application made before the period expired. For otherwise an extension might involve an ex post facto contempt of a retrospective injunction. The second of the two orders in question was confined to the same five days. It includes too a like order as to costs and a like liberty to apply to extend the order. The substance of the order, which also was expressed to be pursuant to s. 109 (1) (b), was that the federation be enjoined from committing a breach of sub-cl. (g) of cl. 26 of the award, as varied, by being implicated in any concerted failure of members of the federation to attend at the times and places prescribed for the engagement of labour at the Port of Melbourne. The orders were made because of an apprehended stoppage of work in the Port of Melbourne within the five days over a question of the size of gangs. Omitting immaterial words, cl. 26 (g) of the award provided that any concerted failure of members of the federation to attend at the times and places prescribed for the engagement of labour shall be a breach of the award for which the federation or a branch thereof may be held liable. The majority of the Commonwealth Industrial Court (Dunphy and Morgan JJ.) construed this clause as meaning that whenever the organisation or branch thereof should be implicated in such a concerted failure of members the organisation committed a breach of the award and, on the facts, found that the clause so construed had been contravened by the federation. Clause 26 (m) provided that any action by the federation or a branch thereof by rule, fine or otherwise to prevent men from offering their labour and continuing in employment on the conditions prescribed in that award should be a breach of the award by the federation or a branch. All the members of the Commonwealth Industrial Court (Spicer C.J., Dunphy and Morgan JJ.) were of opinion that a breach of this provision had been committed by the federation.