Re Commonwealth Conciliation and Arbitration Commission; Re Association of Professional Engineers, Australia; Ex parte City of Perth [1973] HCA 64

High Court of Australia Barwick C.J. McTiernan, Menzies, Gibbs and Stephen JJ. Re Commonwealth Conciliation and Arbitration Commission; Re Association of Professional Engineers, Australia; Ex parte City of Perth [1973] HCA 64

ORDER Order that the order nisi for prohibition be made absolute. Prosecutor's costs to be paid by the respondent Association.

Cur. adv. vult.

The following written judgments were delivered:—

Dec. 21 Barwick C.J.

In this matter I have had the advantage of reading the reasons for judgment prepared by my brother Menzies and those prepared by my brother Stephen. I agree that the rule nisi for prohibition should be made absolute for the reason that the failure of the prosecutors to agree to the demands of the respondent association made by its letter of 23rd March 1972 did not give rise to a relevant industrial dispute. In my opinion, it did not claim anything which pertained to the relationship of employer and employee within the meaning of s. 4 (1) of the Conciliation and Arbitration Act 1904-1972 Cth (the Act). The subject matter of the demands, in my opinion, was the capacities and functions of the Conciliation and Arbitration Commission, a matter regulated by the Act and not a proper subject for treatment by dispute or award. As well, the function sought to be given to that Commission included a decision as to whether or not a claimant employee fell within the terms of the proposed award, and in particular whether he was an officer whose employment had been terminated or an officer who had been dismissed. At least to determine that particular question would be an exercise of judicial power. To decide whether conduct fell within a statutory description of "harsh, unjust or unreasonable" would, in my opinion, be a judicial function. I see no reason why that should not be so in relation to such a description in an industrial award.