R v Kelly; Ex parte Waterside Workers' Federation of Australia [1952] HCA 25

ia

s Ry

Es parte Water

Workers

fait Gis WAGES]

85 C.L.R.] OF AUSTRALIA.

[HIGH COURT OF AUSTRALIA.] THE QUEEN

AGAINST

KELLY AND OTHERS ;

Ex parte WATERSIDE WORKERS' FEDERATION OF AUSTRALIA.

Industrial Arbitration—Stevedoring industry—Award of Commonwealth Court H. C. oF A.

of Conciliation and Arbitration—Termination of power of court to make awards in stevedoring industry—Power transferred to another authority—Continuance of award—Statute—Repeal of provision conferring power—Effect of repeal on things done and continuing under the power—Writ of prohibition—Order enforcing obligation—Validity of order—Error as to source of obligation—The Constitution (63 & 64 Vict. c. 12), 88. 51 (i.), (axav.), 75 (v.)—Conciliation and Arbitration Act 1904-1951 (No. 13 of 1904—No. 58 of 1951), 88. 29, 48, 49—Stevedoring Industry Act 1947 (No. 2 of 1947)—Stevedoring Industry Act 1948 (No. 70 of 1948)—Stevedoring Industry Act 1949 (No. 39 of 1949).

The Waterside Workers' Award, made by the Commonwealth Court of Conciliation and Arbitration, which prescribed rates of wages, hours and other conditions of employment in the stevedoring industry and bound an organiza- tion of employees, and employers and organizations of employers, named in it, came into operation on 27th April 1936. It was expressed to continue in force for five years.

On 8th September 1947 (on the basis that the award remained in force by virtue of the provision—then in s. 28 (2) of the Act—which, in the Con- ciliation and Arbitration Act 1904-1951, appears in s. 48 (2) ) the court made an order varying the award. 'The variations reduced the standard hours of work and inserted in clause 4 of the award a sub-clause (j) to the effect that (i) an employer might require any employee to work reasonable over- time and such employee should work overtime in accordance with such requirement. " (ii) The organization party to this award shall not in any