R v Blackburn; Transport Workers' Union of Australia, Ex p [1953] HCA 55

High Court of Australia Williams A.C.J. Webb, Fullagar, Kitto and Taylor JJ. R v Blackburn; Transport Workers' Union of Australia, Ex p [1953] HCA 55

ORDER Order absolute for writ of prohibition directed to the respondent prohibiting him from making any award purporting to determine the dispute the subject of the proceedings referred to in the order nisi. No order as to costs.

Cur. adv. vult.

The following written judgments were delivered:—

Sept. 9 Williams A.C.J., Fullagar, Kitto and Taylor JJ.

This is an application on behalf of the Transport Workers' Union of Australia, an organization of employees in the transport industry registered in accordance with the provisions of the Conciliation and Arbitration Act 1904-1952, to make absolute an order nisi calling upon a conciliation commissioner appointed under the Act to show cause why a writ of prohibition should not issue prohibiting him from further proceeding in the matter of an "alleged industrial dispute" between the union and certain employers. The order nisi was granted upon the ground that "having regard to the withdrawal by the said union of all claims made by it in the log of claims served upon the employers the conciliation commissioner is not empowered to make an award purporting to settle the industrial dispute, or any part thereof, created by the service of the log of claims referred to and the refusal of the said claims" by the employers upon which it was served. It is common ground that for a considerable time an industrial dispute extending beyond the limits of any one State existed in the road transport industry. The evidence before us shows that between July and October 1951, the union caused to be served on several hundred employers in the road passenger section of the transport industry in a number of States a log of claims relating to the regulation of rates of pay and conditions of employment of employees in that section of the industry, and it is common ground that none of these claims was conceded by such employers. No agreement having been reached between the parties, the union filed an application for a compulsory conference pursuant to s. 15 (1) of the Act. The conference did not result in agreement being reached and thereafter the conciliation commissioner, on 7th February 1952, commenced the hearing of the dispute. The hearing continued at various places for a great number of days and on 4th December 1952, the commissioner published his decision to the parties together with a draft award. The commissioner's decision indicated to the parties the basis upon which he had proceeded in preparing the draft award and concluded with the following pronouncement: "My decisions upon the other matters, which were left to me to arbitrate upon, appear from the draft award issued to the parties with this decision. I shall refrain from issuing same as a formal award for twenty-one days to enable any of the parties to make written submissions to me as to the wording of the clauses as they appear in the draft and to agree, if possible, upon certain definitions which I have left undrafted."