R v Austin; Ex parte Farmers and Graziers Co-operative Co Ltd [1964] HCA 48

High Court of Australia Barwick C.J. McTiernan, Kitto, Taylor and Owen JJ. R v Austin; Ex parte Farmers and Graziers Co-operative Co Ltd [1964] HCA 48

ORDER Order Absolute. Costs including costs of the order nisi to be paid by the respondent Union.

Cur. adv. vult.

The following written judgments were delivered:—

August 19 Barwick C.J.

This is an application for a writ of prohibition directed to Mr. Commissioner Austin of the Commonwealth Conciliation and Arbitration Commission (the Commission) and the Federated Storemen and Packers' Union of Australia (the Union) to prohibit them from proceeding any further upon orders made by the Commissioner on 24th April by which the prosecutors were ordered to pay to certain of their employees whom they had dismissed on 19th November 1963 all wages and other payments payable under the terms of the Storemen and Packers' (Wool etc. Stores) Award 1960, Part 2, New South Wales (the Award) as if such employees had continued in employment with the prosecutors until the recommencement of work by such employees on 22nd November 1963, and by which it was ordered that the period from 19th November 1963 to 22nd November 1963 should count as service with the prosecutors for all purposes of the Award.

The prosecutors are wool-selling brokers conducting wool stores in Sydney and are respondents bound by the Award. They are not all the persons in New South Wales bound by the Award, nor are they the only persons conducting wool stores in New South Wales, nor particularly in Sydney.

The grounds on which the prosecutors say that the Commissioner had no authority to order the payment of the wages and to direct that the period between the dismissal of the employees and their re-engagement should count as service for all purposes of the award are: firstly, that relevant to the orders in question there was no industrial dispute and particularly no industrial dispute extending beyond the limits of any one State to be settled; secondly, that the orders were not appropriate to any such dispute which might be found to exist; thirdly, that the orders, so far as they directed payment of wages, were made in purported settlement of a legal claim which was justiciable in the courts and not capable of being dealt with by the Commissioner who, in attempting to make the orders which he did make, was attempting to exercise judicial power.