R v Watson; Ex parte Australian Workers' Union [1972] HCA 72

High Court of Australia Barwick C.J. McTiernan, Menzies, Walsh and Gibbs JJ. R v Watson; Ex parte Australian Workers' Union [1972] HCA 72

ORDER Order that the Writ of Prohibition issue out of this Court directed to the respondents prohibiting them and each of them from proceeding further in the matters in the Commonwealth Conciliation and Arbitration Commission numbered C. No. 1366 of 1969, C. No. 1169 of 1970 and C. No. 395 of 1971 in so far as such matters concern the wages and working conditions of the classes of employees described in Appendix D of Exhibit O of the affidavit of Tom Nicholson Pearce Dougherty sworn 13th September 1972 and filed herein. The respondent federation to pay the costs of the prosecutor and of the other respondents apart from the firstnamed respondent.

Cur. adv. vult.

The following written judgments were delivered:—

Dec. 22 Barwick C.J.

In this matter I have had the advantage of reading the reasons for judgment prepared by my brother Menzies. I fully agree with those reasons and his Honour's conclusion that the rule nisi for prohibition should be made absolute, on the ground that the work described in the respondent Commissioner's findings was not work which rendered the workers doing it eligible to be members of the respondent organization.

I do not regard those workers as being employed in the building industry however much the product of their labour may be useful to or used in that industry. But I agree with the submission made on behalf of the respondent organization that the identity of the industry in respect of which the organization is registered is not definitive of the eligibility of persons to be members of the organization in any case where the eligibility clause of the constitution of the organization travels beyond the bounds of the industry in respect of which the organization is registered. So much is decided in Reg. v. Dunlop Rubber Australia Ltd.; Ex parte Federated Miscellaneous Workers' Union of Australia [1] . Thus, if in the present case the terms of cl. 4 of the constitution of the respondent organization do not fully confine the scope of the clause to the building industry, which is the industry in respect of which the organization is registered, the eligibility of the workers in question to be members of the organization must be decided upon the terms of cl. 4 itself. No doubt in the event of there being any ambiguity in that clause it would be proper to resort to the nature of the industry in respect of which the organization is registered as an element in the resolution of that ambiguity.