Re Evatt; Ex p Master Builders' Association (NSW) Wales [No 2] [1974] HCA 56

High Court of Australia Menzies, Gibbs, Stephen and Mason JJ. Re Evatt; Ex p Master Builders' Association (NSW) Wales [No 2] [1974] HCA 56

ORDER Order nisi discharged. Prosecutor to pay the respondent's costs.

Cur. adv. vult.

The Court delivered the following written judgment:—

Dec. 18 Menzies, Gibbs, Stephen and Mason JJ.

This is the return of an order nisi for prohibition directed to a deputy president of the Australian Conciliation and Arbitration Commission.

There are pending in the Commission four proceedings which relate to industrial disputes that have been found to exist between The Master Builders' Association of New South Wales ("the M.B.A.") on the one hand and each of four trade unions (registered as organizations under the Conciliation and Arbitration Act 1904-1973 Cth ("the Act")) on the other. The disputes concern a log of claims which has been served on the M.B.A. by each of the unions. The log is in the form of an award — the Building Industry Award — and seeks certain minimum wages and working conditions for persons employed in the classifications defined in the log who, speaking generally, were tradesmen employed in the building industry, but not builders' labourers. On 2nd July 1974 the four proceedings were being heard together. On that day application was made by counsel for leave to intervene on behalf of the Australian Building Construction Employees and Builders' Labourers' Federation ("the B.L.F.") which, counsel said, "is not a registered organization but is composed of 35,000 individual persons who customarily and presently follow the calling of builders' labourer". In fact the B.L.F. had been an organization registered under the Act but its registration had been cancelled pursuant to an order of the Australian Industrial Court made on 21st June 1974. The application was opposed by the M.B.A. and by certain other persons to whom leave to intervene had previously been granted but was supported by the four unions. After hearing argument the learned deputy president reserved her decision. On 9th July 1974 she gave judgment; she said that she had formed the view that "persons who are and are entitled to be members of the B.L.F. in accordance with its rules are persons with a real and substantial interest in the subject matter of the disputes before the Commission" and that she was prepared "to grant leave to intervene to that aggregation of persons being persons who on 2nd July 1974 constituted the membership of the Builders' Labourers' Federation in accordance with the rules of that association and who remain members of that association". She added: "As in the case of the instrumentalities to whom leave to intervene was granted, participation on behalf of interveners in conferences called by the Commission is and will be subject to my direction." The prohibition sought is to prohibit her from proceeding further upon the leave granted to the "aggregation of persons" to intervene in the four proceedings.