R v Findlay; Ex parte Commonwealth Steamship Owners' Association [1953] HCA 81

High Court of Australia Dixon C.J. Webb, Fullagar, Kitto and Taylor JJ. R v Findlay; Ex parte Commonwealth Steamship Owners' Association [1953] HCA 81

ORDER Order nisi for writ of prohibition discharged with costs.

Cur. adv. vult.

The following written judgments were delivered:—

Dec. 1 Dixon C.J.

This is a motion to make absolute an order nisi for a writ of prohibition directed to a conciliation commissioner. The proceeding it is sought to prohibit is an application to the conciliation commissioner by the Federated Clerks' Union of Australia for a variation of an award which among other things governs the employment of casual wharf clerks. The application was made by a summons dated 4th June 1953 and it seeks to have inserted in the award a provision requiring the payment of attendance money to casual wharf clerks who have attended the place of engagement and offered themselves for employment unsuccessfully. For every working day on which the casual wharf clerk has so offered himself for employment without success he is ultimately to receive four hours' pay. Who is to pay it and when are questions to which three alternative solutions were put forward in the summons which the conciliation commissioner had before him.

The choices offered to him were first to require that the employer by whom the casual wharf clerk is next employed should be liable for the attendance money; second that the employer by whom he was last employed should be so liable, and third that all the usual employers in the industry in the given port should jointly and severally be liable for the attendance money. Each of the three alternative proposals is to apply only to casual wharf clerks whose usual occupation is that of casual wharf clerk.

When the summons came on before the conciliation commissioner it was objected that to include any such provision in the award was outside his power because it did not relate to an industrial matter. After hearing the objection discussed the commissioner announced that his opinion was that he had jurisdiction to deal with one or other or all of the propositions embodied in the application made by the Federated Clerks' Union of Australia and that he intended to proceed. The present order nisi for prohibition was then obtained. The grounds of the order nisi depend on the single contention that a dispute as to the adoption of any of the three provisions put forward in the alternative could not be an industrial dispute within the meaning of the Conciliation and Arbitration Act 1904-1952 because it could not be a dispute as to an industrial matter as defined in that Act. Other grounds, if any exist, were put on one side. Apparently, before the issue of the summons formulating the three claims in the alternative, the question whether he could amend the award to some such effect had been before the conciliation commissioner and under s. 16 (2) of the Act and reg. 21 of the Conciliation and Arbitration Regulations he had made a reference to the Arbitration Court for the purpose of ascertaining his power. The Arbitration Court declined to determine the question either because of the form it took or perhaps because the facts were inadequately brought before that court. The conciliation commissioner said in the course of the hearing that he failed to find anything in the transcript of the proceedings before the Arbitration Court which would amount to a direction by that court that he should refer the question back to them and he understood that it was a matter entirely for his discretion whether he would do so. On this view it may be considered that the reference had lapsed or been impliedly withdrawn. Otherwise sub-s. (4) of s. 16 in its present form might prove a bar to the commissioner's proceeding. But this question was advisedly put aside by the parties. In the same way no point was made by the respondents to the order nisi concerning the possible effect of sub-s. (7) of s. 16. Nor was any question raised as to the ambit in fact of the actual dispute and its sufficiency to include any or all of the alternative claims.