R v Gough; Ex parte Meat and Allied Trades Federation of Australia [1969] HCA 71

High Court of Australia Barwick C.J. Menzies, Windeyer, Owen and Walsh JJ. R v Gough; Ex parte Meat and Allied Trades Federation of Australia [1969] HCA 71

ORDER Order that the order nisi for prohibition be made absolute, prosecutor's costs to be paid by the respondent, the Australasian Meat Industry Employees' Union.

Cur. adv. vult.

The following written judgments were delivered:—

Dec. 22 Barwick C.J.

The question raised by this application for prohibition is whether the Commonwealth Conciliation and Arbitration Commission is competent to insert in a federal award the second paragraph of a clause in the following terms:

An employer shall not give notice of termination of employment to a weekly employee or refuse to re-engage a regular daily employee or refuse to re-employ any person employed by him in the preceding twelve (12) months or dismiss an employee without notice harshly or unreasonably.

If any dispute arises under this Clause the Commission may on the Application of the Union order the reinstatement in employment or re-engagement or re-employment of any such employee.

There is no question that a clause confined to the terms of the first paragraph would be within the ambit of a dispute initiated by the logs of claims in evidence in this matter or that the Commission could award it in settlement of such dispute. It appears to provide that an employer bound by the award shall not dismiss a weekly employee with or without notice harshly or unreasonably or refuse harshly or unreasonably to re-engage a regular daily employee or refuse harshly or unreasonably to re-employ any person employed by him in the preceding twelve months.

If such a provision is awarded, it will impose legal restraints upon the employer's freedom of action and confer commensurate rights on his employees or former employees. The extent of these restraints and rights will be determined by the construction placed upon the words used in expressing the provision.