R v Clarkson; Ex parte Victorian Employers Federation [1973] HCA 57

High Court of Australia Barwick C.J. McTiernan, Menzies, Gibbs and Stephen JJ. R v Clarkson; Ex parte Victorian Employers Federation [1973] HCA 57

ORDER Order nisi for mandamus discharged.

Cur adv. vult.

The following written judgments were delivered:—

Nov. 30 Barwick C.J.

My brother Menzies, in the reasons for judgment which he has prepared and made available to me, sets out the nature of the proceedings giving rise to the application for mandamus. He also relates the circumstances necessary for the resolution of the questions raised. Having considered what my brother has written I find myself in agreement with him both in his conclusion and in his supporting reason. I agree that the application for variation of the amount was unnecessary and the decision of the Commonwealth Industrial Court, which prompted that application, is insupportable. I agree that mandamus should be refused on the ground that it would be both unnecessary and futile in result.

McTiernan J.

This proceeding arises from an application to the Commonwealth Conciliation and Arbitration Commission to vary the terms of the Vehicle Industry Award 1972. The application came on for hearing before a Commissioner who dismissed it. A Commissioner has power to determine an application to vary any of the terms of an award. The question for decision is whether the Commissioner erroneously declined to exercise the jurisdiction of the Commission in the matter. If he did, it is claimed by the prosecutor that a writ of mandamus should issue to him.

The variation of the award sought is the addition, to cl. 4 of the award, of a paragraph which would provide as follows: "(g) The members of the Victorian Employers Federation in respect of the employment by each of them of employees, whether members of any of the organisations of employees mentioned in Schedules "A" and "B" to this award or not, employed on any work described in cl. 3(a)(i) of this award, other than the work referred to in cl. 3(a)(ii)." The words "whether members of any of the organisations of employees mentioned in schedules "A" and "B" to this award or not" and the words "other than the work referred to in cl. 3(a)(ii)" are not of importance.