R v Gaudron; Ex parte Uniroyal Pty Ltd [1978] HCA 3

High Court of Australia Stephen, Mason, Jacobs, Murphy and Aickin JJ. R v Gaudron; Ex parte Uniroyal Pty Ltd [1978] HCA 3

ORDER Order that a writ of prohibition directed to the respondents be granted and made absolute forthwith.

Cur. adv. vult.

The following written judgments were delivered:—

1978, Feb. 22 Stephen J.

I have read and agree with all that appears in the reasons for judgment prepared by my brother Mason. I wish only to add something concerning the consequence of cl. 38a 1 (b) being ultra vires the Commission's power: whether it necessarily means that the rest of the clause must fall with it.

It was argued on behalf of the respondent union that the whole of Pt A of cl. 38 was a mere machinery provision, an aid towards preference. If any of its provisions went beyond power they could be severed, leaving the remainder standing as a valid exercise of power by the Commission. This might be well enough were it possible to regard the true grant of preference as confined within Pt B of the clause. However, it is not. The two parts of cl. 38 operate as one whole. Part B confers a preference in employment in affirmative terms, it says that in certain circumstances "the employer shall give preference". Part A although in part expressed as conferring a liberty upon employers, in fact imposes upon employers a mandatory procedure for the engagement of employees, which in itself operates as a preference to some intending employees over others as well as providing machinery for the operation of Pt B of the clause. The operation of cl. 38 in practice would no doubt give to the preference in Pt A a greater practical effect than that conferred by Pt B. Subclause 1 (b) of Pt A is an integral and important part of the whole scheme of preference worked out in the clause as a whole. To strike it out produces a substantially different scheme from that which the award contemplated. Accordingly sub-cl. 1 (b) of Pt A does not present a proper case for severance.