R v Clarkson; Ex parte General Motors-Holden's Pty Ltd [1976] HCA 8

High Court of Australia Barwick C.J. Stephen, Mason, Jacobs and Murphy JJ. R v Clarkson; Ex parte General Motors-Holden's Pty Ltd [1976] HCA 8

ORDER Discharge order nisi.

Cur. adv. vult.

The following written judgments were delivered:—

1976, Mar. 12 Barwick C.J.

Although there were a number of complicated circumstances which resulted in the application for prohibition which is now before the Court, the facts necessary to be known in order to resolve the questions raised are few. Accordingly, I have abstracted them in basic form in these reasons.

The respondent Union provoked a dispute with employers in the industry in which it represented employees, by a letter of demand containing a log of claims. The first-named prosecutor (General Motors-Holden's) ("the first prosecutor"), one of the companies upon which the demand was served, did not accede to the demands. Neither did any other company or person upon whom the log was served. The dispute thus arose: the employees being in different States, it was in the relevant jurisprudence of the Conciliation and Arbitration Commission, a dispute extending beyond the limits of any one State. However, the dispute was resolved by an award made by consent.

The clauses of the award made by consent, which it seems to me bear on the resolution of the present matter, are as follows:

3—Incidence of Award

(a) This award shall have effect in the State of New South Wales, Victoria, Queensland and South Australia to General Motors-Holden's Pty. Limited as to every operation carried on within or in connection with a plant principally concerned with manufacturing, repairing and/or assembling of trucks or motor cars or parts or components thereof.

(b) From the date of coming into operation of this award any other award or determination or ordinance or State Act or industrial provision which might otherwise have applied to employees covered by this award shall be as a term and condition of this award excluded from applying to such employees and the Company. Provided, however, that this sub-clause shall not affect the operation of the Vehicle Industry (Long Service Leave) Award 1965 as amended from time to time.