R v Commonwealth Conciliation and Arbitration Commission; Ex parte Amalgamated Engineering Union (Australian Section) [1967] HCA 47

High Court of Australia Barwick C.J. McTiernan, Kitto, Taylor, Menzies and Windeyer JJ. R v Commonwealth Conciliation and Arbitration Commission; Ex parte Amalgamated Engineering Union (Australian Section) [1967] HCA 47

ORDER Orders nisi discharged with costs.

Cur. adv. vult.

The following written judgments were delivered:—

Dec. 13 Barwick C.J.

The problem presented to the Court in these cases is no more than the proper construction of certain sections of the Conciliation and Arbitration Act 1904-1966 Cth (the Act). The claim of the prosecutors in each of the applications is that upon its proper construction the Act requires the Commonwealth Conciliation and Arbitration Commission (the Commission), in settling a dispute as to the amount of wages to be paid in an industrial employment, first to determine a sum which will form part of the wage to be prescribed in settlement of the dispute and which is a just and reasonable sum for an adult male to be paid, without regard to any circumstance pertaining to the work upon which, or the industry in which, he is employed, and thereafter to fix an additional payment, commonly called a margin, to represent the particular work value of each classification of work in the particular industrial employment. The point at issue is in reality a narrow one, namely, whether or not the Act directs an exclusive method of determining the appropriate wage to be paid in industrial employment in the settlement of an industrial dispute. But to understand the argument which has been pressed upon the Court in support of the applications, it is necessary to make a brief excursion into some aspects of the history of the settlement of disputes as to industrial wages by the Court and the Commission operating under successive conciliation and arbitration statutes passed under and within the power given to the Parliament by s. 51 (xxxv.) of the Constitution. Before doing so, however, I ought to refer to the circumstances in which the applications come before the Court.