R v Foster; Ex parte Commonwealth Life (Amalgamated) Assurances Ltd [1952] HCA 10

High Court of Australia Dixon, McTiernan, Williams, Fullagar and Kitto JJ. R v Foster; Ex parte Commonwealth Life (Amalgamated) Assurances Ltd [1952] HCA 10

ORDER Order nisi discharged with costs.

Cur. adv. vult.

The following written judgments were delivered:—

March 11 Dixon, Fullagar and Kitto JJ.

This is an order nisi for a writ of prohibition directed to the judges who formed the Court of Conciliation and Arbitration which made, on 5th June 1951, an award called the Industrial Life Assurance Agents (Commonwealth Life (Amalgamated) Assurances Limited) Basic Wage Award, 1951. The purpose of the writ sought by the prosecutor is to prohibit further proceedings upon the award. The jurisdiction to make the award is denied on the ground that the supposed dispute in respect of which it was made was not an industrial dispute within the meaning of the Conciliation and Arbitration Act 1904-1951 inasmuch as it was not a dispute in relation to employment or as to any industrial matter pertaining to the relations of employers and employees and that it was not an industrial dispute within s. 51 (xxxv.) of the Constitution.

The award is expressed to bind the prosecutor, the Commonwealth Life (Amalgamated) Assurances Ltd., and the respondent the Industrial Life Assurance Agents' Union and the members thereof. An introductory clause states under the heading "scope of the award" that the award relates to the employment of adult employees wholly or mainly employed or engaged in the industrial life assurance industry in canvassing for industrial and ordinary life assurance policies and in collecting the premiums payable by or on behalf of insured persons. The clause purporting to make the award binding on the prosecutor company does so only as to the employment by it of any person employed in the beforementioned class of work, but whether he is a member of the respondent union or not. The operative clause of the award says that an adult male employee covered by the award shall be paid at the rate of £8 per week as a basic wage, being the amount which the Court declares to be just and reasonable without regard to any circumstance pertaining to the work upon which or the industry in which he is employed. This form of award pursues the terms in which the authority of the Arbitration Court with reference to the basic wage for males is conferred by s. 25 (b), which provides that the Court may for the purpose of preventing or settling an industrial dispute make an order (b) altering the basic wage for adult males (that is to say, that wage, or that part of a wage, which is just and reasonable for an adult male, without regard to any circumstance pertaining to the work upon which, or the industry in which, he is employed) or the principles upon which it is computed.