R v Portus; Ex parte Thiess Bros Pty Ltd [1969] HCA 15

High Court of Australia Barwick C.J. Taylor, Menzies, Windeyer and Owen JJ. R v Portus; Ex parte Thiess Bros Pty Ltd [1969] HCA 15

ORDER Order absolute for prohibition. Respondent union to pay the prosecutor's costs.

The following judgments were delivered:—

April 22 Barwick C.J.

This application to make the order nisi for prohibition absolute ought, in my opinion, to be granted. The facts of the matter are simple: an award permits an employer who provides accommodation for his employees to deduct no more than a stated sum per week in respect of such accommodation from the wages payable to the accommodated employees.

The applicant did not itself provide any such accommodation but two other persons provided accommodation at a hostel, charging persons including employees of the applicant who sought and received such accommodation, a sum in excess of that which an employer bound by the award might deduct for accommodation provided by him.

Certain contractual arrangements existed between the applicant and these persons.

The respondent union claimed that the applicant was itself providing the accommodation for its employees through its agents. It filed a notice under s. 28 of the Commonwealth Conciliation and Arbitration Act 1904-1966, made applicable with certain variations to the Northern Territory by the Northern Territory Administration Act 1910-1962, s. 6. A result of such variations is that an industrial dispute in relation to the Northern Territory need not extend beyond the limits of the Territory.

The dispute which the notice claimed to be likely to arise was as to whether or not the applicant was conforming to the award, it being suggested either that in fact the applicant was providing accommodation and charging therefor amounts in excess of the sum fixed by the award or that in allowing the persons actually providing the accommodation to charge more than that amount, the applicant was in breach of the award properly construed.