Re Holmes; Ex p Altona Petrochemical Co Ltd [1972] HCA 20

High Court of Australia Barwick C.J. McTiernan, Menzies, Windeyer and Owen JJ. Re Holmes; Ex p Altona Petrochemical Co Ltd [1972] HCA 20

ORDER Rule nisi for prohibition discharged. Prosecutors to pay the costs of the respondent Union.

Cur. adv. vult.

The following written judgments were delivered:—

1972, Feb. 29 Barwick C.J.

The question in this application for prohibition is whether the written demand of the respondent union, not being granted by the prosecutors, gave rise to an industrial dispute which the respondent Commissioner has jurisdiction to settle by an appropriate award. Generally, if there is such a dispute it will not be a ground for prohibition that the respondent union proposes as a means of settling it an award which the respondent Commissioner either could not or should not make. But other considerations arise where the claim is for an award of preference.

The principal reason put forward by the prosecutors for saying that no industrial dispute has arisen upon the respondent union's demand is that the demand in substance and effect is that the prosecutors should employ only members of the respondent union and that such a demand does not relate to an industrial matter within the meaning of the Commonwealth Conciliation and Arbitration Act 1904-1970 (the Act) as interpreted by this Court. Put another way, the prosecutors say that because the demand purports to claim preference for the members of the union but demands an award the terms of which do not fairly fall within the scope of s. 47, no industrial dispute can result from the prosecutors' failure to accede to it.

The Court has decided that the forerunner of s. 47 of the Act is the sole source of authority in the Conciliation and Arbitration Commission to require an employer to grant preference to members of an organization such as the respondent union and that a demand upon an employer for more than that preference does not relate to the relationship of employer and employee so as to found an industrial dispute. See R. v. Wallis; Ex parte H. V. McKay Massey Harris Pty. Ltd. [1] ; R. v. Findlay; Ex parte Victorian Chamber of Manufactures [2] . Section 47 of the Act was enacted after these decisions in the same terms as its forerunner.