Re Australian Conciliation and Arbitration Commission; Ex parte Graham [1977] HCA 20

High Court of Australia Barwick C.J. Gibbs, Stephen, Mason, Jacobs, Murphy and Aickin JJ. Re Australian Conciliation and Arbitration Commission; Ex parte Graham [1977] HCA 20

ORDER Order nisi discharged.

Cur. adv. vult.

The following written judgments were delivered:—

21 April 1977 Barwick C.J.

My consideration of the course of events in connexion with the disputes C No. 1723 of 1976 and C No. 3489 of 1976 has led me to the same conclusions as those reached by my brother Gibbs and expressed by him in reasons for judgment which I have now had the advantage of reading. I am content to say that I agree with both the conclusions and reasons there expressed and feel no need to supplement or qualify them. In my opinion, the order nisi should be discharged.

Gibbs J.

This is the return of an order nisi to prohibit further proceedings in two matters in the Australian Conciliation and Arbitration Commission ("the Commission"), identified respectively as C No. 1723 of 1976 and C No. 3489 of 1976.

Three of the respondents, Australian Lubricating Oil Refinery Pty. Ltd., Australian Oil Refining Pty. Ltd. and Total Refineries Australia Ltd., are companies which conduct oil refineries in New South Wales. When the proceedings in the Commission commenced, most of the persons employed as operators in those oil refineries were members of the Australian Workers' Union ("the respondent union"), which is registered under the Conciliation and Arbitration Act 1904 Cth, as amended ("the Act"), as an organization of employees, and which is also a respondent to the present application. A branch of the respondent is registered under the Industrial Arbitration Act, 1940 N.S.W., as amended, as an industrial union of employees. It will be convenient to refer to this branch as "the State registered union", but it will not be necessary to consider its status or its relation to the respondent union. The wages and conditions of the members of the respondent union employed as operators in the oil refineries conducted in New South Wales by the three respondent companies were, at least until 27th September 1976, governed by industrial awards or industrial agreements made or registered pursuant to the Industrial Arbitration Act, 1940 N.S.W., as amended. However, the wages and conditions of members of the respondent union employed as operators in refineries conducted by other companies in Queensland and Victoria were governed by the provisions of awards made under the Act—federal awards. There were other refineries in Australia, including one in Western Australia at which members of the respondent union were employed; some of these were, and some were not, governed by federal awards. It appears that the wages of the operators employed in the three respondent companies in New South Wales were higher than those of operators employed in other States. This, it was suggested, was an anomaly which might justify increased wages to those operators employed under federal awards. An industrial dispute arose on this question but it did not concern the three respondent companies. However, in the course of that matter on 11th August 1976 a Commissioner made a detailed report on the alleged anomalies.