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. 1. (1949) 78 C.L.R. 529. 2. (1950) 81 C.L.R. 537. It follows in my opinion that a demand in the form of a proposed award of preference must be confined within what s. 47 authorizes the Commission to award or order if an industrial dispute is to arise upon it. If the demand is for something which cannot be awarded under s. 47 and which does not otherwise relate to the relationship of employer and employee, its refusal will not give rise to an industrial dispute. Where the demand in the form of a proposed award exceeds what may be awarded under s. 47 the matter cannot, in my opinion, be resolved by leaving it to the Commission to award only that which it might properly award upon a mere demand for an award of preference. If there be such an excess, then, in my opinion, no industrial dispute can arise, and no jurisdiction to make an award is attracted. The matter cannot be treated in my opinion as one in which an inadmissible or inappropriate method of settling what is in truth an industrial dispute has been put forward. There is no question that the demand did not relate to the relations of employer and employee as defined. See the before-mentioned cases. Consequently the precise question to be answered is whether the log of claims served by the respondent union does demand more than the preference which s. 47 allows the Commission to award. The question in the case will therefore be answered by considering the substantial meaning and effect of the written demand, reading it with a generous lack of technicality and with an emphasis upon its intent as a whole, regarding the effect its acceptance would produce as being properly within that intent. The purpose of the examination is to ascertain whether its claims fairly fall within the scope of s. 47. The log of claims is in the following terms: In this log— "The award" means the Clerks (Oil Companies) Award 1968 or any award which rescinds or replaces that Award; "The union" means the Federated Clerks' Union of Australia; "Employer" means employer respondent to this log of claims. 1. Method of Engagement. An employer shall observe the following procedure in engaging employees for employment under the Award. (a) A member of the union or a person holding a current certificate under s. 47 (3) of the Conciliation and Arbitration Act may be employed at any time. (b) Any other employee may be employed not less than twenty one days after the employer has notified the union that an opportunity for employment exists and of the nature of the work involved in the employment. Provided that in an emergency an employer may engage an employee for not more than three days without complying with the requirements of this clause, but shall not thereafter continue or extend the employment and shall not renew it except after notification in accordance with this clause and subject to cl. 3 [sic]. "Preference". 2. Preference. An employer shall give preference to members of the union as hereinafter prescribed in relation to the matters hereinafter specified— (a) In relation to the matter of engagement in any employment covered by the Award, the employer shall give preference to all members of the union who have indicated to the employer their desire for employment by him within fourteen days prior to the giving of the relevant notice under cl. 2 (b) [sic], or who so indicate, either directly or through the union, within fourteen days after the receipt of the notice by the union. Provided that an employer shall be excused from the obligation to give preference in accordance with this sub-clause in the case of any particular member of the union if at the time of making the engagement the employer has reasonable grounds to believe and does believe that the member is incapable of performing the duties of the employment, being work the nature of which was notified to the union pursuant to cl. 2 (b) [sic]. An employer shall not, within the meaning of this sub-clause, have reasonable grounds for believing that an employee is incapable of performing the duties of the employment, unless he has made reasonable enquiries in the circumstances including the giving of a reasonable opportunity to the employee to establish his capacity. (b) In relation to the matters of— (i) grading an employee hitherto on the incremental scale under the Award (except where the grading of a particular employee is compulsory under the Award), (ii) grading an employee into a higher grade under the Award, or (iii) promoting an employee to a graded position, or from one graded position to a more highly graded position under the Award. the employer shall give preference to all members of the union who are employed on the incremental scale or in a grade lower than that in which an employee is to be graded. Provided that an employer shall be excused from the obligation to give preference in this sub-clause in the case of a particular member of the union if the grading is incidental to the filling of a particular position and such member is incapable of performing the duties of that position. An employer who proposes to do any of the things referred to in sub-pars (i), (ii) and (iii) of this paragraph shall give twenty-one days notice of his intention to do so to the branch secretary of the union in the area or locality concerned; provided that he shall be excused from giving such a notice if all his employees within the scope of the Award are members of the union. (c) In relation to the matter of retention in employment covered by the Award, the employer shall give preference to all members of the union employed by him under the Award. Provided that an employer shall be excused from the obligation to give preference in accordance with this sub-clause in the case of a particular member of the union who— (i) is being dismissed for misconduct which justifies instant dismissal; (ii) is incapable of performing the duties of his employment (otherwise than by temporary illness, incapacity or injury); or (iii) has reached a retiring age which is applied generally to all clerical employees in his employment. Seven days prior to giving a member of the union notice of intention to terminate his services (otherwise than in any of the circumstances referred to in sub-pars (i), (ii) and (iii) of this paragraph), the employer shall notify the branch secretary of the union in the area or locality concerned of the name of the member and the reason for his employment being terminated; provided that he shall be excused from giving such a notice if all his employees within the scope of the Award are members of the union. (d) In relation to the matter of determining the times when employees employed under the Award shall take their annual leave or any other leave to which such employees are entitled, preference shall be given to members of the union. Such preference shall be given in the following manner— (i) Each year an employer shall ask his clerical employees the time when they wish to proceed on leave to which they may be entitled. (ii) Where an employer refuses to allow all of the employees, who have selected a particular time, to take their leave at the time selected, he shall give preference to members of the Federated Clerks' Union of Australia in deciding which employees shall be permitted to take leave at the time they have selected. The log can be severed into four parts, namely, to use the language of the log, (i) a demand as to the matter of engagement of employees; (ii) a demand as to the matter of grading and promoting employees; (iii) a demand as to the matter of retention in employment of employees; and (iv) a demand as to the matter of determining the times at which employees shall take annual or other leave. The demand as to the matter of engagement is made in two distinct parts, respectively headed "Method of Engagement" and "Preference". I shall first deal with each of these parts as standing alone. I shall later deal with them on the footing that they form together one demand. Before doing so I should express my opinion upon a submission made by the prosecutors that the demand was so ill-expressed, lacking in precision and ambiguous as to be incapable of acceptance or rejection: cf. Reg. v. Commonwealth Conciliation and Arbitration Commission; Ex parte Melbourne and Metropolitan Tramways Board [1] . However, although its draftsmanship and manner of expression leaves a great deal to be desired the substantial meaning of the demand, in my opinion, is capable of elucidation and comprehension. Consequently, so far as its expression is concerned the demand was, in my opinion, capable of forming the basis of a dispute, and I would therefore reject this submission of the prosecutors. 1. (1965) 113 C.L.R. 228, at p. 239. I turn now to cl. 1 of the log of claims. A demand for an award that an employer may at any time employ a member of the union but for a space of twenty-one days may not employ anyone who is not a member of the union is clearly a demand for something which could not be awarded under s. 47. It is in terms a demand that there be an award that at least for a period of twenty-one days there be a total exclusion of all persons not members of the union from employment with any of the prosecutors in relation to the particular task which the particular prosecutor wishes to have performed save in an "emergency", whatever that may be, when a non-unionist may be employed for a maximum of three days. It needs no argument or citation of authority, in my opinion, other than those to which I have already referred to justify the conclusion that such an award could not be made under s. 47 and that such a demand is not as to the relations of employer and employee. Thus in my opinion cl. 1, as an independent demand, could not give rise to an industrial dispute. I turn then to cl. 2 (a) headed "Preference". Section 47 needs somewhat close examination in relation to this demand. That section authorizes the Commission by award or order to direct that preference shall be given to such organizations or members of organizations as are specified in the award or order. Preference is to be as to matters given in a manner, and subject to conditions (if any), specified in the award or order. I read the provision as authorizing an award or order directing the giving of preference to such members of the organization as may be specified in the award or order. I do not read it as authorizing an award or order that preference be given to such specified organizations or their members. In my opinion, it is necessary to carry the qualification "such" down to the members. That is not to say that such members of organizations need be named in the award or order but, in my opinion, they must be identifiable by some certain description contained in the award or order. The word "preference" is not defined in the Act nor has it been defined in any of the predecessors of s. 47. Our attention was called in argument to the various phases through which a provisions as to the giving of preference has passed in the history of conciliation and arbitration in Australia. No doubt difficulties were experienced in practice in the application of a requirement to give preference "all other things being equal" or in the case of persons "being equally qualified". Preference in the predecessor of s. 47 was limited to preference in employment and was to be preference to members of organizations over persons seeking employment at the same time. But in s. 47 expressions such as "other things being equal" are not present; and the authority given to the Commission is to direct that preference be given in a manner to be specified in relation to matters to be specified. Thus the present provision commits to the Commission the task of specifying in what way preference is to be given in respect of matters which it specifies to such members of an organization as it specifies. The Parliament apparently thus thought to remove the difficulties and uncertainties which have been thought to have attended the application and enforcement of a comparable provision in earlier times. But although the matters in respect of which preference may be given and the manner in which it is to be given are now to be left to the Commission, the basic concept of the provision remains, namely that it is "preference" which may be directed to be given. Much must turn on the connotation of this word, for it constitutes the principal limitation on the power. In ordinary speech I prefer when I favour or esteem one thing or person before another; or in fewer words when I choose between things or people. It seems to me I can only prefer or show preference if I have more than one thing or person between whom to make a choice. I can only give preference if I allow my choice to fall upon or favour one above or before another. This connotation of preference or of giving preference seems to me to be in accord with the use of the word preference in all the versions of the provision for preference which have appeared in the Act. I do not think that the elision for example of the expression "all things being equal" has made any change in the connotation of the word "preference" or of the expression "that preference be given". Nor do I think that its industrial setting requires any departure from the ordinary meaning of the word "preference". Section 47 does not say over whom preference is to be given. As I read the section it does mention who may be directed to be preferred e.g. such members of an organization as are specified in the award or order. But though it does not say so expressly the section must be contemplating that the preference to be given to such specified members is a preference over other persons. As the matters in relation to which preference may be directed to be given are not limited to employment, these other persons, it seems to me, must be persons who are so concerned in or related to the specified matter that, but for the direction as to the giving of preference, the person bound by the award or order would do for or in relation to those persons what in obedience to the direction as to preference he will do for or in relation to the member of the organization. That is to say, for example, in the case of employment, the member of the organization and the other person must each be persons whom the employer would employ. Their capacities need not be equal; nor need they in all or any respects be equal but, withal, each must in my opinion be a person who the employer would engage to perform the work the specification of which of course is entirely a matter for him. Compare the views of Street J. in Davis v. Western Suburbs Hospital [1] . The work required to be done by the employer must of course be work of a kind which fairly falls within the possible coverage of the organization according to its constitution. Thus it seems to me that the structure of the present section emphasizes that the occasion for the giving of preference is to be an occasion when a choice can be made. Then, of the two or more persons each of whom is for example employable according to the employer's requirements, the member of the organization is to be preferred. In my opinion, the giving of preference does not mean that the right of the employer to specify his requirements is overridden or weakened or that membership of the organization is to be the sole determinant in the decision of the employer to employ or dismiss etc. as the case may be. 1. (1941) 42 S.R. (N.S.W.) 26, at p. 31. Two things in my opinion flow from these considerations: first that the award or order cannot create the occasion for the making of a choice: the occasion must result from the initative of the employer in requiring labour for the task he specifies. Second that the award or order cannot deny or prevent the occasion for a choice arising. The award or order must be limited to dealing with an occasion which in fact has arisen in the ordinary course of business. Clause 2 (a) of the demand requires preference to be given to all members of the organization who indicate within the stated time their desire for employment by the employer bound by the award. This seems to envisage that there can be no employment of a person not a member of the organization until there is no member of the organization who desires the employment whom the employer cannot believe on reasonable grounds to be incapable of performing the duties of the proposed employment; a state of mind the employer may not attain unless he has made reasonable inquiries and given the member applicant for the employment, which must mean all of them in turn, a reasonable opportunity to establish his capacity. I mention in passing that there would seem to be no criteria of what is reasonable in the circumstances so as to satisfy either the expression "reasonable inquiries" or the expression "reasonable opportunity". The terms of the paragraph are apparently an attempt to provide a manner of giving preference in the engagement for employment. But they do not, in my opinion, specify the members of the organization to whom preference is to be given. A reference to all members who indicate their desire for employment does not enable an identification to be made of the member who is to be preferred over any non-member for any particular employment. For example, five members of an organization being apprised of the availability of employment with a prosecutor may indicate in due time their desire for employment by that prosecutor. The clause does not provide a means of determining which one is to be preferred over the non-member applicant for the job. If they are the only applicants an occasion for preference in the sense of the section does not arise. But if there is a non-member applicant between whom is the choice to be made?: to whom is preference to be given? That problem is, in my opinion, insoluble by reference to the terms of the log of claims. If the clause means that no non-member may be employed until there is no member or no "capable" member of the organization desirous of being employed it does not in my opinion provide for preference within the meaning of s. 47. In my opinion a direction to give preference to all members of the organization who desire employment is not within the scope of the power given by s. 47. A demand for such a direction cannot in my opinion give rise to an industrial dispute. Being of this opinion I have no need to pursue the difficulties I feel as to the terms of the proviso to the paragraph: nor the difficulties inherent in the word "capable" in relation to the requirements of the employer. Whilst I quite understand the convenience to the organization and its members of a provision combining cll. 1 and 2 (a) of the log of claims there is, in my opinion, no warrant under s. 47 for making an award or order in such terms. The conjunction of those two parts of the demand is designed to ensure that an occasion is created on which to exercise a preference, that is to say, by preventing the prosecutors from engaging anyone to do the desired work until some member or members of the organization decide to apply for the job. As I have said the power to direct the giving of preference does not, in my opinion, extend to the making of an order or award to create the opportunity or occasion for the exercise of preference. Consequently, whether taken separately or in conjunction, cll. 1 and 2 (a) do not, in my opinion, constitute a demand or demands for preference within s. 47. They are, in my opinion, incapable of giving rise to an industrial dispute within the meaning of the Act. What I have already written when applied to the terms of cl. 2 (b) and (c) leads to the conclusion that neither of these two paragraphs contain a demand which can give rise to an industrial dispute. I turn lastly to cl. 2 (d) of the log of claims. In this paragraph the members of the organization to whom preference is to be given might be identified as those members who have selected that particular time at which to take their leave, annual or otherwise, which an employee or employees not a member or members of the organization have selected for the same purpose. It is then said that these members—all of them—are to be given preference. That is to say that no non-member employee is to be allowed to take his leave at the particular time unless all members of the organization desiring to do so have taken their leave at that time. But the time for taking leave is primarily a matter for selection by the employer, the demands of whose business must necessarily be considered, not merely in his own but in his employees' interests. I am unable to accept the view that the proposed terms are a manner of giving preference in the taking of leave. Membership of the union is sought to be made the sole criterion of allotment of a date for the taking of leave. Any occasion for choice between employees is sought to be prevented. Thus an element to my mind indispensable to the concept of preference is missing. The clause is not directed to the occasion when the employer is presented with two applications for leave, one by a member and one by a non-member, either of which the employer according to the exigencies of his business would be prepared to grant. The paragraph on the contrary as I have said is designed to avoid or prevent such a situation arising. That is to say, to avoid or to prevent an occasion existing for the exercise of preference as I understand that word. These considerations are to my mind fatal to a submission that this paragraph demands preference within s. 47. Having reached that conclusion I have no need to consider whether an award can so far enter the employer's field of management as to enable an award or order to be made in the terms of sub-par. 1 of cl. 2 (d). For these reasons I am of opinion that none of the provisions of the log of claims contains a demand which upon the prosecutors' refusal or failure to agree could give rise to an industrial dispute. Accordingly, in my opinion the Commissioner would have no jurisdiction to entertain this matter. The rule for prohibition should be made absolute. McTiernan J. This is a matter within s. 75 (v.) of the Constitution in which a writ of prohibition is sought. The writ is sought by employers of members of the Federated Clerks' Union of Australia employed in the petrochemical industry in New South Wales, Victoria, Queensland and Western Australia. The respondents in the matter are a Commissioner under the Commonwealth Conciliation and Arbitration Act 1904-1970 (the Act) and the union. The Commissioner is a submitting respondent. The union opposes the issue of the writ sought by the employers. The question at issue is whether the Commissioner has jurisdiction to hear and determine an inter-State industrial dispute raised by the total disagreement of the employers with the union about claims which the union served on the employers with respect to preference to members of the union employed in the petrochemical industry in the States of New South Wales, Victoria, Queensland and Western Australia. The Commissioner obtained cognizance of the dispute under s. 28 of the Act. After hearing counsel for the union and counsel for the employers the Commissioner found that: "an industrial dispute within the meaning of the Act exists" in the States mentioned above between, on one side, the union and its members and, on the other side, the employers who are seeking prohibition; and that "the matters which form the subject of the dispute are those set out in the said log of claims". At the instance of the employers, further argument on the question of the Commission's jurisdiction took place before Mr. Commissioner Holmes. In his decision he summarized the argument of counsel on each side. The summary of the argument for the employers is as follows: Mr. Dey, counsel for the employers, submitted that notwithstanding the generality of the definition of industrial matter as appears in s. 4 of the Conciliation and Arbitration Act 1904-1970 Cth the power to grant preference is confined to the extent authorized by s. 47 of the Act. Before dealing with what he termed "the various aspects of the authorities" Mr. Dey went broadly through the log of claims from the union. Having completed this exercise Mr. Dey then dealt exhaustively with decisions of the High Court of Australia on what he said were cases of particular importance on the question of preference and compulsory unionism. The cases he cited were R. v. Wallis; Ex parte Employers' Association of Wool Selling Brokers [1] and R. v. Findlay; Ex parte Victorian Chamber of Manufactures [2] . He said the decisions of these cases clearly set out the limit of the Commission's jurisdiction and that whilst the log had been framed to make it acceptable and to enable it to meet requirements it failed to do so. Mr. Dey concluded by saying the log as drafted was beyond the Commission's power to award on two bases. Firstly it paid lip service to the word "preference" and failed to place itself outside the invalidity flowing from the Wallis [1] and Findlay [2] cases. Secondly it failed to meet the requirements of the Act in that it did not specify the matters in relation to which preference was to be given nor did it specify the manner of so doing. The summary of the argument for the union is as follows: Mr. Wootten said Parliament had legislated to grant power to the Commission to award preference. This was a logical thing when one considered that the Act has as one of its objectives the organization of bodies of employees and employers and their registration under the Act. The union made no apology for the fact that the claim, if granted, would interfere with the free choice of employers. That is precisely what Parliament had legislated for in s. 47. The point about granting preference to a unionist was that he was given an advantage and so long as the Commission did not make it an offence not to belong to a union or make it illegal to employ non-unionists s. 47 gave power to the Commission to confer advantages, in accordance with the section, on persons who are members of unions. Mr. Wootten traced the history of s. 47 of the Act. In particular he dealt with the present s. 47 and contrasted it with the section (then s. 56) as it was prior to 1947. Mr. Wootten said the log of claims quite clearly "relates to an industrial matter". If by some chance it was found not to comply with s. 47 that would not be fatal unless the Commission was unable, within the ambit of the claim, to make an award which did comply with s. 47. Parliament had legislated for preference and it must surely have intended its intention to be effective. It had taken away the limitations that prior to 1947 had made jurisdiction ineffective. The Commissioner's decision was as follows: I have studied the submissions put to me. I have not heard any of the merits of the union's log of claims. The matter, therefore, cannot be determined on any basis other than what has been put to me. There is no way in which I can determine whether the claims would be granted, in whole or in part, or be refused. It is my opinion, having found a dispute within the meaning of the Act exists, that this Commission has jurisdiction to hear and determine the dispute. Accordingly Mr. Dey's submissions are rejected and the Commission rules it has the jurisdiction to hear and determine this dispute. It is common ground between the union and the employers that the power of the Commission to grant preference is confined to the extent authorized by s. 47 of the Act: see Anthony Hordern and Sons Ltd. v. Amalgamated Clothing and Allied Trades Union of Australia [1] . 1. (1949) 78 C.L.R. 529. 2. (1950) 81 C.L.R. 537. 3. (1949) 78 C.L.R. 529. 4. (1950) 81 C.L.R. 537. 5. (1932) 47 C.L.R. 1. The ground of the present order nisi is that the Commissioner has no jurisdiction to proceed to hear the dispute about the matters set out in the log of claims, in whole or in part, because: (1) the log of claims is not expressed with sufficient precision to give rise to an industrial dispute; (2) the log of claims makes demands for preference to members of the respondent union which are outside the meaning of preference in s. 47 of the said Act; (3) the log of claims makes demands which the said Commissioner has no power to grant as being in substance demands for compulsory unionism; (4) the log of claims in par. 1 (b) makes a demand which relates to the prevention of the establishment of the relation of employer and employee. For my part I would not uphold any of these objections to the jurisdiction of the Commission to determine whether or not to exercise the power conferred on the Commission by s. 47, in respect of the several matters set forth in the log of claims or any of them. The log of claims divides itself into three clauses viz. (1) "Method of Engagement"; (2) "Preference"; and (3) "Information concerning Union membership". First, there is an interpretation clause, which is the following: In this log—"The Award" means the Clerks (Oil Companies) Award 1968 or any award which rescinds or replaces that Award; "The Union" means the Federated Clerks' Union of Australia; "Employer" means employer respondent to this log of claims. The clause relating to "Method of Engagement" reads thus: An employer shall observe the following procedure in engaging employees for employment under the Award. "Employee" is not defined in the log of claims. Section 4 (1) of the Act, the Interpretation section, provides that: In this Act, except where otherwise clearly intended—"Employee" means any employee in any industry and includes any person whose usual occupation is that of employee in any industry. "Employees", in cl. 1, means persons whom employers are engaging for employment covered by "the Award" as defined. Paragraph (a) of cl. 1 provides that a member of the union or a person holding a certificate under s. 47 (3) of the Conciliation and Arbitration Act may be employed at any time. This paragraph shows that the union's claim is not obnoxious to s. 47 (3), the purpose of which is to prevent inequality between members of the union and persons, if any, who are not members but whose conscientious beliefs do not allow them to be members of an industrial union of employees. But par. (a) makes no claim that a person who is not a member of the union and has no such conscientious beliefs may not be employed at any time. But if an award were made in the terms of par. (b) of cl. 1, the procedure would interfere with the freedom of an employer bound by the award to adopt his own procedure in engaging persons for employment covered by the award who are not members of the union and not within the scope of s. 47 (3). Clause 1 (b) is in words as follows: Any other employee may be employed not less than twenty-one days after the employer has notified the union that an opportunity for employment exists and of the nature of the work involved in the employment. Provided that in an emergency an employer may engage an employee for not more than three days without complying with the requirements of this clause, but shall not thereafter continue or extend the employment and shall not renew it except after notification in accordance with this clause and subject to clause 2 "Preference". The subject matter of cl. 1—"procedure in engaging employees for employment under the Award" is in my opinion an "industrial matter" within the meaning of the Act, s. 4 (1), par. (h). Clause 2 of the award begins thus: "An employer shall give preference to members of the union as hereinafter prescribed in relation to the matters hereinafter specified." The matters are: "engagement in any employment covered by the Award", cl. 2 (a); "grading an employee hitherto on the incremental scale under the Award (except where the grading of a particular employee is compulsory under the Award)," cl. 2 (b) (i); "grading an employee into a higher grade under the Award", cl. 2 (b) (ii); "promoting an employee to a graded position, or from one graded position to a more highly graded position under the Award", cl. 2 (b) (iii); "retention in employment covered by the Award", cl. 2 (c); and "determining the times when employees employed under the Award shall take their annual leave or any other leave to which such employees are entitled", cl. 2 (d). Section 47 (1) of the Conciliation and Arbitration Act 1904-1970 provides that: The Commission may, by an award, or by an order made on the application of an organization or person bound by an award, direct that preference shall, in relation to such matters, in such manner and subject to such conditions as are specified in the award or order, be given to such organizations or members of organizations as are specified in the award or order. The Act does not enumerate the matters in relation to which the Commission may by an award or order direct that preference shall be given to organizations or members of organizations. It was virtually conceded by counsel for the employers seeking the writ of prohibition that the matters specified in cl. 2 of the log of claims are all "matters" within the scope of s. 47. Counsel for the union convincingly argued that all the matters specified in cl. 2 are within the scope of the section: see Reg. v. Commonwealth Conciliation and Arbitration Commission; Ex parte Transport Workers' Union of Australia [1] , per Barwick C.J. 1. (1969) 119 C.L.R. 529, at pp. 546-547. By cl. 2 (a) the union claims in relation to the matter of engagement in employment that, the employer shall give preference to all members of the union who have indicated to the employer their desire for employment by him within fourteen days prior to the giving of the relevant notice under cl. 1 (b), or who so indicate, either directly or through the union, within fourteen days after the receipt of the notice by the union. Under cl. 1 (b) the notice contains not only a statement that, "an opportunity for employment exists" but also a statement describing "the nature of the work involved in the employment". It seems that the second element required to be put in the notice is relevant to the proviso to cl. 2 (a). The proviso added to cl. 2 (a) by the log of claims reads thus: Provided that an employer shall be excused from the obligation to give preference in accordance with this sub-clause in the case of any particular member of the union if at the time of making the engagement the employer has reasonable grounds to believe and does believe that the member is incapable of performing the duties of the employment, being work the nature of which was notified to the union pursuant to cl. 1 (b). An employer shall not, within the meaning of this sub-clause, have reasonable grounds for believing that an employee is incapable of performing the duties of the employment, unless he has made reasonable enquiries in the circumstances including the giving of a reasonable opportunity to the employee to establish his capacity. It seems to me that the fundamental precept of cl. (2) (a) is that the union claims preferential employment for its members who are capable of performing the duties of the employment in which an employer gives notice to the union that an opportunity for employment exists, but without prejudice to applicants capable of performing the duties and are not members of the union but are within the scope of s. 47 (3). If the Commission should decide to make an award for preferential employment at all for members of the union or any class of members it would have the power to adopt cl. 2 (a) in its entirety or modify the whole or any part of cl. 2(a), including of course the proviso, provided such alterations are within the ambit of cl. 2 (a). As regards the matters of grading and promotion, the union demands by cl. 2 (b) that: the employer shall give preference to all members of the union who are employed on the incremental scale or in a grade lower than that in which an employee is to be graded. But again this is a demand which is qualified by the log of claims. The proviso to cl. 2 (b) reads thus: an employer shall be excused from the obligation to give preference in this sub-clause in the case of a particular member of the union if the grading is incidental to the filling of a particular position and such member is incapable of performing the duties of that position. The final part of cl. 2 (b) reads: An employer who proposes to do any of the things referred to in sub-pars. (i), (ii) and (iii) of the paragraph shall give twenty-one days' notice of his intention to do so to the Branch Secretary of the union in the area or locality concerned; provided that he shall be excused from giving such notice if all his employees within the scope of the Award are members of the union. Clause 2 (c) is a claim that in relation to the matter of retention covered by the Award, the employer shall give preference to all members of the union employed by him under the Award. As in the cases of engaging employees, grading and promoting employees, there is a proviso to the claim in cl. 2 (c). The proviso reads thus: Provided that an employer shall be excused from the obligation to give preference in accordance with this sub-clause in the case of a particular member of the union who— (i) is being dismissed for misconduct which justifies instant dismissal; (ii) is incapable of performing the duties of his employment (otherwise than by temporary illness, incapacity or injury); or (iii) has reached a retiring age which is applied generally to all clerical employees in his employment. A further claim is included in cl. 2 (c) which reads thus: Seven days prior to giving a member of the union notice of intention to terminate his services (otherwise than in any of the circumstances referred to in sub-pars. (i), (ii) and (iii) of this paragraph), the employer shall notify the Branch Secretary of the union in the area or locality concerned of the name of the member and the reason for his employment being terminated; provided that he shall be excused from giving such a notice if all his employees within the scope of the Award are members of the union. Clause 2 (d), the claim for preference in the matter of leave is in words as follows: In relation to the matter of determining the times when employees employed under the Award shall take their annual leave or any other leave to which such employees are entitled, preference shall be given to members of the union. Such preference shall be given in the following manner— (i) Each year an employer shall ask his clerical employees the time when they wish to proceed on leave to which they may be entitled. (ii) Where an employer refuses to allow all of the employees, who have selected a particular time, to take their leave at the time selected, he shall give preference to members of the Federated Clerks' Union of Australia in deciding which employees shall be permitted to take leave at the time they have selected. Clause 3 of the log of claims reads: An employer may inquire from the Branch Secretary of the union in the area or locality concerned as to whether or not a particular employee is a member of the union, and for the purposes of discharging his obligations hereunder shall be entitled to rely on the correctness of the answer he is given. The claim in this log of claims for preferential hiring is, in substance, that the employers agree with the union that they will hire members of the union who have the capacity to perform work for which the employers need more employees or more employees than they have at the time of hiring the union members to carry on, subject to the union on its part agreeing with the employers that non-union members may be hired by them when qualified members of the union are not applying to be hired or the union cannot supply them, without obligation on the part of the employers to ask the non-union employees to join the union. This is an example of preference within the meaning of s. 47 of the Act, so far as the hiring of employees for work covered by an award is concerned. It seems clear from the wording of the log that the union's draftsman kept the words of s. 47 (1) steadily in mind and regarded with care the dicta in R. v. Wallis [1] and R. v. Findlay [2] . In my opinion it is a wrong interpretation of the log of claims that it makes claims which infringe the rationale of those cases. The objections to jurisdiction enumerated in the order nisi proceed from an erroneous interpretation of the log. 1. (1949) 78 C.L.R. 529. 2. (1950) 81 C.L.R. 537. In my opinion the log of claims is well drafted; the document is wholly intelligible; the ambit of the disagreement between the union and the employers resulting from their rejection of the claims made by the log can be readily ascertained from the language used to express each claim. I have come to the conclusion that there results from the rejection of the log by the employers an industrial dispute, which the Commission is competent to settle, as to every matter the subject of a claim expressed by the log; and that every such matter is an "industrial matter" within the meaning of the Act. The Commissioner has jurisdiction to direct preference in relation to each matter in respect of which it is claimed and in such manner as it is claimed and for such members of the union as it is claimed, or otherwise within the ambit of the dispute and in accordance with s. 47. For these reasons I would discharge the order nisi. Menzies J. A number of oil companies, parties to the Clerks (Oil Companies) Award, seek prohibition against John Bede Holmes, a Commissioner of the Conciliation and Arbitration Commission, and the Federated Clerks' Union of Australia, a party to the award, to prevent the further hearing by the Commissioner of what he has determined is an industrial dispute between the prosecutors and the union. This is the return of an order nisi granted by the Chief Justice. The log of claims, the non-acceptance of which it has been decided gave rise to an industrial dispute, is in the form of a letter dated 23rd November 1970, from the federal secretary of the union to each of the prosecutors and to others. It claims what are described as conditions of employment of all the clerical employees of the oil companies, whether members of the union or not. Those conditions, with certain formal corrections, are: 1. Method of Engagement. An employer shall observe the following procedure in engaging employees for employment under the Award. (a) A member of the union or a person holding a current certificate under s. 47 (3) of the Conciliation and Arbitration Act may be employed at any time. (b) Any other employee may be employed not less than twenty one days after the employer has notified the union that an opportunity for employment exists and of the nature of the work involved in the employment. Provided that in an emergency an employer may engage an employee for not more than three days without complying with the requirements of this clause, but shall not thereafter continue or extend the employment and shall not renew it except after notification in accordance with this clause and subject to cl. 3 [sic]. "Preference". 2. Preference. An employer shall give preference to members of the union as hereinafter prescribed in relation to the matters hereinafter specified— (a) In relation to the matter of engagement in any employment covered by the Award, the employer shall give preference to all members of the union who have indicated to the employer their desire for employment by him within fourteen days prior to the giving of the relevant notice under cl. 2 (b) [sic], or who so indicate, either directly or through the union, within fourteen days after the receipt of the notice by the union. Provided that an employer shall be excused from the obligation to give preference in accordance with this sub-clause in the case of any particular member of the union if at the time of making the engagement the employer has reasonable grounds to believe and does believe that the member is incapable of performing the duties of the employment, being work the nature of which was notified to the union pursuant to cl. 2 (b) [sic]. An employer shall not, within the meaning of this sub-clause, have reasonable grounds for believing that an employee is incapable of performing the duties of the employment, unless he has made reasonable enquiries in the circumstances including the giving of a reasonable opportunity to the employee to establish his capacity. (b) In relation to the matters of— (i) grading an employee hitherto on the incremental scale under the Award (except where the grading of a particular employee is compulsory under the Award), (ii) grading an employee into a higher grade under the Award, or (iii) promoting an employee to a graded position, or from one graded position to a more highly graded position under the Award, the employer shall give preference to all members of the union who are employed on the incremental scale or in a grade lower than that in which an employee is to be graded. Provided that an employer shall be excused from the obligation to give preference in this sub-clause in the case of a particular member of the union if the grading is incidental to the filling of a particular position and such member is incapable of performing the duties of that position. An employer who proposes to do any of the things referred to in sub-pars (i), (ii) and (iii) of this paragraph shall give twenty-one days notice of his intention to do so to the branch secretary of the union in the area or locality concerned; provided that he shall be excused from giving such a notice if all his employees within the scope of the Award are members of the union. (c) In relation to the matter of retention in employment covered by the Award, the employer shall give preference to all members of the union employed by him under the Award. Provided that an employer shall be excused from the obligation to give preference in accordance with this sub-clause in the case of a particular member of the union who— (i) is being dismissed for misconduct which justifies instant dismissal; (ii) is incapable of performing the duties of his employment (otherwise than by temporary illness, incapacity or injury); or (iii) has reached a retiring age which is applied generally to all clerical employees in his employment. Seven days prior to giving a member of the union notice of intention to terminate his services (otherwise than in any of the circumstances referred to in sub-pars (i), (ii) and (iii) of this paragraph), the employer shall notify the branch secretary of the union in the area or locality concerned of the name of the member and the reason for his employment being terminated; provided that he shall be excused from giving such a notice if all his employees within the scope of the Award are members of the union. (d) In relation to the matter of determining the times when employees employed under the Award shall take their annual leave or any other leave to which such employees are entitled, preference shall be given to members of the union. Such preference shall be given in the following manner— (i) Each year an employer shall ask his clerical employees the time when they wish to proceed on leave to which they may be entitled. (ii) Where an employer refuses to allow all of the employees, who have selected a particular time, to take their leave at the time selected, he shall give preference to members of the Federated Clerks' Union of Australia in deciding which employees shall be permitted to take leave at the time they have selected. The prosecutors assert that jurisdiction to hear and determine the so-called dispute is lacking because: (1) the log of claims is not expressed with sufficient precision to give rise to an industrial dispute; (2) the log of claims makes demands for preference to members of the respondent union which are outside the meaning of preference in s. 47 of the said Act; (3) the log of claims makes demands which the said Commissioner has no power to grant as being in substance demands for compulsory unionism; (4) the log of claims in par. 1 (b) makes a demand which relates to the prevention of the establishment of the relation of employer and employee. The most important question to be decided is whether, by its log, the union is claiming more than could give rise to an industrial dispute for the settlement of which a direction that preference should be given to the union or its members—hereinafter called "unionists"—as authorised by s. 47 of the Conciliation and Arbitration Act could properly be made. This section confers the only power which the Commissioner has to award or direct preference. I shall refer to non-members of the union as "non-unionists". Section 47, when it was s. 56 of the Commonwealth Conciliation and Arbitration Acts 1904-1948 and 1904-1949, was considered by this Court in two cases: R. v. Wallis; Ex parte H. V. McKay Massey Harris Pty. Ltd. [1] —which, like this, was a case concerned with the jurisdiction to hear an alleged dispute—and R. v. Findlay Ex parte Victorian Chamber of Manufactures [2] —which was concerned with the validity of an actual award. By these cases it was decided that s. 56 is exclusive and exhaustive; that it is limited to granting preference in employment; that it does not authorize complusory unionism or the giving of a monopoly of employment in the industry to the members of a union or the complete exclusion from employment of persons not belonging to a union. Furthermore, it was decided that a claim for a monopoly of employment by a union could not bring about an industrial dispute because such a claim did not relate to the relations of employers and employees. In the judgments, however, it was recognized that there is a difference between seeking a monopoly—i.e. the complete exclusion of others—and seeking a partial exclusion of others which might be preference. The second case also dealt with the construction and application of the section. This will require consideration later. 1. (1949) 78 C.L.R. 529. 2. (1950) 81 C.L.R. 537. The passages in the various judgments in Wallis' Case [1] most relevant here are as follows: 1. (1949) 78 C.L.R. 529. Latham C.J. [2] : The provisions of s. 56 do not authorize more than preference to unionists. They do not enable a commissioner to declare non-unionists black so that they cannot get work in the industry to which they belong. If there is, however, power to exclude non-unionists, the exclusion may be partial or complete. Partial exclusion is preference to others. There would be no rational reason for Parliament carefully prescribing conditions in relation to preference, i.e. partial exclusion, if it were intended that there should be an unlimited power to order complete exclusion in any case. Accordingly, in my opinion, the definition of "industrial matters" should not be so interpreted and applied as to authorize the making of an award for complete exclusion. 1. (1949) 78 C.L.R., at p. 544. Rich J. [3] : The provision challenged in the proposed awards provides for a monopoly in favour of the Federated Clerks' Union and a wholesale exclusion of other persons whether or not members of an organization from a wide sphere of employment and a corresponding obligation on employers to employ only members of the union. In my opinion there is no statutory justification for the provision in question. 1. (1949) 78 C.L.R., at p. 548. Dixon J. [4] : If the conciliation commissioner had power to make an award or order in the terms of these demands and he made such an award or such an order it would go much further than insuring that where members of the Federated Clerks' Union of Australia are available for employment they shall be employed in preference to persons who are not members of that organization and are not members of any other organization of employees that includes clerks serving in the industry. 1. (1949) 78 C.L.R., at pp. 548-549. McTiernan J. [1] : But neither demand is, in my opinion, for preference. It is a demand that the employers should not engage or retain in employment any person who is not a member of the union. That is different from a demand for preference. The gist of the demand is not preference to members of the union but exclusion of persons who are not members of it as a sanction to ensure that all employees are members of the union. 1. (1949) 78 C.L.R., at p. 554. Webb J. [2] : Nowhere in the Act can I find any authority to exclude persons from employment because they are not members of a particular organization, or of a class within that organization, when such members are not available and willing to undertake the particular employment. 1. (1949) 78 C.L.R., at p. 555. The passages in Findlay's Case [3] most relevant to the question whether there is here an industrial dispute are as follows: 1. (1950) 81 C.L.R. 537. Latham C.J. [4] : The demand contained in the log was a simple demand for compulsory unionism. and [5] : Apart from what has already been said as to the complete ineffectiveness for all relevant purposes of the inclusion of the claim for compulsory unionism in the log, preference to unionists is different in kind from a monopoly of employment for unionists. 1. (1950) 81 C.L.R., at p. 544. 2. (1950) 81 C.L.R., at p. 546. Dixon J. [6] : Now in the present case there was no dispute about preference in terms. A log of claims was delivered by the union containing a demand that no employer (subject to the provisions of any relevant Commonwealth law in force) should employ any person on work covered by the log unless such person were a financial member of the union. To this claim the employers did not accede. Does such a claim raise an industrial dispute covering preference in employment to the members of the union? In my opinion it does not 1. (1950) 81 C.L.R., at p. 550. McTiernan J. [7] : The respondent union demanded in effect that the employers should use their economic power over their employees to compel those who were not members of the union to join it. The power to award preference implies the existence of two groups, unionists and non-unionists. The effect of the union's demand, if conceded by the employers, would have been to eliminate the second group from the industry. 1. (1950) 81 C.L.R., at p. 552. Webb J. [1] : A clause which, like cl. 61, has the effect of making an employer await the union's nomination of a unionist, no matter how urgently the services of an employee may be required, and then to select an unqualified unionist, if the union sees fit to nominate one, and which also has the effect of requiring the employer to dismiss a qualified non-unionist and employ in his place an unqualified unionist nominated by the union, might necessarily lead to the termination of an employer's operations. Such a clause is as objectionable as the clauses held invalid in Wallis' Case [2] ; and in any event is, I think, also invalid as going beyond preference as commonly understood. 1. (1950) 81 C.L.R., at p. 553. 2. (1949) 78 C.L.R. 529. The various claims made in the log must be examined in the light of the foregoing decisions to determine whether what is sought is preference to the union or its members. The first demand is that, subject to a proviso, no person, not a unionist or a person holding a certificate under s. 47 (3) of the Act, can be employed until twenty-one days after an employer has notified the union that there is a particular job to be filled. The proviso would allow employment in an emergency for no more than three days. If there is a unionist applicant for the job he must be engaged unless, on reasonable grounds, the employer believes him incapable of doing the job. The effect of this embargo upon employment is that an employer wanting to fill a job may not be able to do so for at least twenty-one days for there may be no application within that time by a unionist, or by a unionist capable of doing the job. It was argued that such a claim by itself would be a claim with respect to an industrial matter. As presently advised I am not disposed to accept this contention but in the view which I take it is not necessary for me to express a concluded opinion upon it. By itself such an embargo is not a claim for preference to unionists, but it is argued that, because an effective system of preference depends upon giving those to be preferred an opportunity to seek engagement for vacant jobs before they are filled by those to be deferred, an embargo upon the engagement of a non-unionist for a limited time would be a step to the end of granting effective preference to unionists and a claim for such an embargo relates to an industrial matter, i.e. preferential employment. I accede to this argument. I think that a provision that no non-unionist should be engaged, unless and until an employer has ascertained in a specified manner that there is no competent unionist available for engagement, could be part of the provision of preference for unionists. Such a provision would, of necessity, prevent the immediate engagement of a non-unionist. Nevertheless, some limitation upon the liberty of an employer to engage non-unionists, to forestall any competition from unionists for jobs, does seem to me to fall within the conception of preference in employment to unionists. If a claim for preference in employment be made out, the Award granting it should contain such provisions as are necessary to make it effective and I consider that a limitation upon the right to employ, to ensure that those to be preferred have a real opportunity to offer for work when it becomes available, falls within that description. It may well be that, in settling this particular dispute, a wise arbitrator would impose less restrictive conditions upon employers than the embargo as sought, but the conditions sought are, in my opinion, not so extreme that to grant them as they stand would, of necessity, involve going beyond the making of a legitimate provision within a system for the granting of preference to unionists. Refusal of this part of the log does, I think, give rise to an industrial dispute. The proviso to excuse non-employment of incompetent unionists was the subject of attack as being too limited. It was said that an incompetent unionist might nevertheless be capable of doing the job in his own incompetent fashion. Arguments of this sort do not, I think, really go to jurisdiction. I am disposed to think that a true system of preference would provide for a choice among competent would-be employees, but, subject to one reservation, the terms in which this part of the demand are cast would, I think, permit the making of an award in terms appropriate to secure such a choice but with preference to unionists. I have, however, come to the conclusion that the last sentence of the proviso, which is, no doubt, directed towards the prevention of evasion, may go beyond making a demand for preferential employment. The use of the word "employee" therein suggests that no person, who has not been given the opportunity to attempt to fill a job capably, can, on reasonable grounds, be regarded as incapable of performing the duties of that job and must be employed on trial. If so, I think that what is sought would go beyond requiring an employer to choose between competent or capable persons and would require that any applicant unionist, however obviously incapable, should be given employment so that in the job his incapacity could then be demonstrated. This is, however, a minor matter which does not go to jurisdiction. The claim, which is put forward as a claim for preference in grading, is, I think, with one qualification, a claim for preference in an industrial matter. Although I understand how the obligation to give the union notice of a vacancy fits into a scheme of preference for unionists, I do not think that the claim that a branch secretary of the union must be notified of any proposal which an employer has in mind to grade or promote an employee is a claim pertaining to the relations of employers and employees and it is not a matter within any of the lettered paragraphs of the definition of industrial matters in s. 4 of the Act. In my opinion, therefore, a clause following the last par. of 2 (b) of the log could not be included in an award. I have formed a like opinion about the claim for retention in employment. To seek that no unionist should be dismissed, except on grounds of misconduct, incompetence or having reached the retiring age so long as a non-unionist is retained in employment, is a claim, albeit perhaps an extreme claim, in relation to an industrial matter. It is essentially different from a claim that non-unionists should be dismissed to create vacancies to which unionists, by virtue of preference, would then be appointed to fill. Again, however, the requirement that a branch secretary of the union should be notified of the employer's intention to terminate the services of a unionist goes beyond any matter pertaining to the relations of an employer with his employees. Finally, in my examination of the various claims separately, I have come to the conclusion that to claim that, if there should be competition between a unionist and a non-unionist to have annual leave at a particular time, the unionist, rather than the non-unionist, should be given leave at that time is to claim preference in an industrial matter. Having now looked at the claims one by one, and having decided, except where I have expressed a contrary view, that they are claims for preference in industrial matters, I must consider a more general argument of counsel for the prosecutors which was, in effect, that, taken as a whole, what is demanded goes beyond a claim for preference and amounts to a claim for monopoly of employment for unionists. It does seem to me that if what I do regard as claims for preference, were to be granted, the long term consequence would be that clerical employment in the industry would be restricted to unionists. More and more unionists would be engaged and more and more non-unionists would be dismissed. Nevertheless, I do not regard this likely consequence as turning what are prima facie claims for preference into claims for monopoly of employment for unionists. It is necessary to examine what is claimed rather than the long term consequences of the granting of what is claimed in order to determine whether the claims are in relation to an industrial matter. Regarding the claims as I do, I reject the contention that, either separately or together, they constitute, not a claim for preference, but, a claim for monopoly of employment. It is necessary now to consider a different submission, namely, that the claims are not of the sort described in s. 47. Section 47 (1) is in these terms: 23. (1) The Commission may, by an award, or by an order made on the application of an organization or person bound by an award, direct that preference shall, in relation to such matters, in such manner and subject to such conditions as are specified in the award or order, be given to such organizations or members of organizations as are specified in the award or order. The provisions of this subsection were expounded in Findlay's Case [1] , particularly by Kitto J. His Honour pointed out that the section required that an award of preference should identify (1) those to be preferred and those to be deferred, (2) the matter in which preference is to be given, (3) the manner in which preference is to be given, and (4) any condition to which the obligation to give preference is subject. The clause in the award under consideration there failed, in his Honour's opinion, to comply with these requirements. 1. (1950) 81 C.L.R. 537. It is not, I think, valid to transfer criticism of an award to a claim with respect to an industrial matter, because, it is not necessary that the claim, and any award arising from it, should correspond. Thus, to take a simple instance, there may be a demand for unconditional preference but an award for conditional preference. Similarly, I would think a claim that sought no more than preference in the engagement of employees should be given to a member of a particular union over all others, in the event of other things being equal, would give rise to an industrial dispute over preferential employment because the preferential employment of particular persons is, by definition, an industrial matter. The award, however, to comply with s. 47, would have to go further and make provision for the manner in which preference should be given. When, therefore, a demand is analysed, it must be to ascertain whether it relates to an industrial matter rather than whether, if an award did no more than follow the demand, it would be a valid award having regard to s. 47. It would be wrong to decide that the Commissioner lacked jurisdiction merely because, in making an award complying with s. 47, he may have to go beyond the actual terms of the demand. If there be an industrial dispute it can be settled by a direction in accordance with s. 47 so long as, whether or not there should be a direction for preferential employment of certain persons, it is within the ambit of the dispute. Taking this view of the Act, and of s. 47 in particular, I do not find it necessary to determine whether an award made precisely in the terms of the demand would be a direction of the sort which s. 47 authorizes. When, therefore, Kitto J., in condemning the award under his consideration, said "In short, it does not advert at all to the question of the manner of giving preference, and therefore it fails to comply with s. 56 (1)" [1] , he was using language that was appropriate in the circumstances of that case but would not be appropriate in considering whether or not the claim here could give rise to an industrial dispute. The same is true of other criticisms of the award which his Honour was considering in Findlay's Case [2] . Section 47 does not deal with claims; it deals with directions that may be made when an industrial dispute comprehends the matter of preferential employment of certain persons. I think it would be wrong to import the requirements stated in s. 47 into the terms of par. (j) of the definition of industrial matters in s. 4. Accordingly, I regard much of the criticism, that there is not spelt out in the claim all that is required by s. 47, as misplaced. 1. (1950) 81 C.L.R., at p. 555. 2. (1950) 81 C.L.R. 537. The last matter to be dealt with is a submission that the claim is not expressed with sufficient precision to give rise to an industrial dispute. A number of criticisms were levelled against some of its terms, but, in my opinion, a fair reading of the claim as a whole leaves little doubt about the demand that the union is making. It seems to me that the decision of some members of the Court in Reg. v. Commonwealth Conciliation and Arbitration Commission; Ex parte Melbourne and Metropolitan Tramways Board [3] , has no application to this log because it does convey clearly enough that what is being sought is preferential treatment of unionists in respect of engagement, promotion, dismissal and the granting of annual leave. 1. (1965) 113 C.L.R. 228. For the foregoing reasons I would discharge the order nisi. Windeyer J. This is a return of a rule nisi for a writ of prohibition. The applicants, the prosecutors, are companies presently bound by an award called the Clerks (Oil Companies) Award, 1966. The respondent is a Commissioner of the Commonwealth Conciliation and Arbitration Commission who has entered upon the hearing of a log of claims lodged by the respondent Federated Clerks' Union of Australia ("the union"), claiming that the existing award be supplemented by a set of elaborate new clauses providing for preference to unionists in obtaining employment and in relation to the terms of employment. In the notification of a dispute that the union gave pursuant to s. 28 of the Conciliation and Arbitration Act 1904-1970 Cth ("the Act"), they were described as "claims as to preference of employment" for members of the union. The question for this Court is whether the respondent Commissioner has jurisdiction under the Act to make an award covering the matters that are the subject of the log of claims. The question is not whether he should do so; but whether he can lawfully do so. This matter has an importance that reaches far beyond this case and the present parties. It is only remotely concerned with the Commonwealth's constitutional power with respect to industrial disputes. The Act is circumscribed by the limits of that power. The present case depends upon the scope of the statutory power, measured by the definition in the Act of "industrial matters" and by the provisions of s. 47, enabling, and governing, directions by the Commission for the giving of preference. If the Act empowers a Commissioner to make an award for preference, substantially in accordance with the union's claim, then this Court is not concerned with the wisdom of his doing so. If, on the other hand, his doing so is not authorized by the Act, prohibition should go from this Court at this stage. Section 60 (1) (c) would not then stand in the way. It, in terms, applies when proceedings have been completed by the making of an award. Thus it does not prevent pending proceedings being restrained. Moreover, a series of well-known decisions of this Court has established that the subordination of the section to the provisions of s. 75 of the Constitution limits its operation. It is enough to refer here to the discussions of this aspect by Dixon J. in R. v. Metal Trades Employers' Association; Ex parte Amalgamated Engineering Union (Australian Section) [1] , and more recently to the analysis by Kitto J. in Reg. v. Commonwealth Conciliation and Arbitration Commission; Ex parte Amalgamated Engineering Union (Australian Section) [2] . 1. (1951) 82 C.L.R. 208, at pp. 248-249. 2. (1967) 118 C.L.R. 219, at pp. 252-253. The first ground taken in the order nisi is that "the log of claims is not expressed with sufficient precision to give rise to an industrial dispute". The wording of the clauses which it is sought to have inserted in an award are certainly open to serious criticism for obscurities of vocabulary and irregularities of syntax. These uncertainties would not of themselves render void an award in the terms proposed. An industrial award, like other forms of subordinate legislation, could be invalid because a lack of certainty if it demonstrated that it was beyond power. But uncertainty is not of itself a ground for declaring subordinate or delegated legislation invalid: see King Gee Clothing Co. Pty. Ltd. v. The Commonwealth [1] , per Dixon J. Courts must wrestle, and are accustomed to wrestle, with difficult language. They are required to find its meaning, not permitted to abandon the task. I may here quote part of what Jordan C.J. said in Ex parte Zietsch; Re Craig [2] : By "certain" or "clear" is meant clear enough to serve the practical purpose which the provision is evidently intended to serve. A court should not be astute to pick holes in a regulation or order, and hold it to be bad because of possibilities of obscurity which are purely theoretical or fanciful. Many years ago Lord Hobhouse said in the Privy Council that: It is a very serious matter to hold that when the main object of a statute is clear, it shall be reduced to a nullity by the draftsman's unskilfulness or ignorance of Law: Salmon v. Duncombe [3] . That is pertinent too for subordinate legislation. But, whatever criticism be made of the draftsman's handiwork in this case, he is not to be reproached for ignorance of law. The clauses in question appear to be an ungainly attempt to side-step pitfalls which frustrated earlier attempts to obtain awards that would compel or induce all employees to join a union. The aim of the draftsman seems to have been to circumvent some of the obstacles, set out by Kitto J., to the award that was before the Court in R. v. Findlay; Ex parte Victorian Chamber of Manufactures [4] . 1. (1945) 71 C.L.R. 184, at pp. 194-195. 2. (1944) 44 S.R. (N.S.W.) 360, at p. 365. 3. (1886) 11 App. Cas. 627, at p. 634. 4. (1950) 81 C.L.R. 537. That, as they were framed, the claims in the log could produce surprising results was recognized by Mr. Wootten, who appeared for the union. He said that these ought to be "cured when the award is made"; and he rightly insisted several times that the existence of jurisdiction with respect to the subject matter of the claims did not depend upon whether or not an award in the exact terms proposed should be made. Nevertheless the question of jurisdiction is not disposed of by saying that what is sought might not be in terms granted. For the ground on which the applicants sought to stand was that the lack of precision in the claims as formulated precluded their giving rise to an industrial dispute in the statutory sense. This is an objection to jurisdiction to entertain the claims, not a contention that an award framed in accordance with them would fail for uncertainty. As the Chief Justice observed during the course of the argument, a log of claims has a twofold purpose under the Commonwealth arbitration system. If it is not agreed to, then, assuming the necessary inter-State element to be present, this may shew that an industrial dispute in the constitutional sense exists. But that is only so for the purposes of the Act when the demand is made in respect of an industrial matter as defined, and the nature of the demand is plain so that the other party may know to what he is being asked to agree. The other purpose of the log is that, having engendered a dispute, it claims that it ought to be settled in a particular manner. There again it is necessary that the demand made is one to which the Commission is enabled by the Act to accede. The decision in Transport Workers' Union Case [1] was cited and relied upon by the respondent union. I am not able to see that it has any direct bearing on this case. In particular I do not understand how remarks that I made there can be read as supporting the union's case here. I said that "the jurisdiction which the Commonwealth Parliament has committed to the Commission is conferred in ample terms" [2] . And so it is. I added that except so far as may be necessary to keep the provisions of the Act within the scope of the constitutional power, I think that the jurisdiction of the Commission should be understood to be as wide as the words of the Act allow when they are read against a background of industrial conditions today. We ought not to be astute to interpret them narrowly. [2] . I certainly adhere to those dicta. But I am at a loss to know why a caveat against a narrow interpretation of a statutory power, read, as it should be, against existing industrial conditions, can be taken as a licence to stretch the power widely and read it regardless of existing industrial conditions. 1. (1969) 119 C.L.R. 529. 2. (1969) 119 C.L.R., at p. 556. 3. (1969) 119 C.L.R., at p. 556. With the foregoing matters in mind, I pass now to the proposed award as set out in the log of claims, to consider in relation to its several clauses the grounds on which, as set out in the order nisi, the jurisdiction of the Commissioner is challenged. I have already quoted the first ground: but for convenience I repeat it here with the others. They are that the log of claims: (a) is not expressed with sufficient precision to give rise to an industrial dispute; (b) makes demands for preference to members of the respondent union which are outside the meaning of preference in s. 47 of the said Act; (c) makes demands which the said Commissioner has no power to grant as being in substance demands for compulsory unionism; (d) in paragraph 1 (b) makes a demand which relates to the prevention of the establishment of the relation of employer and employee. The first two clauses of the proposed award are headed respectively "Method of Engagement" and "Preference". I set out the first in full and par. (a) of the second. 1. Method of Engagement. An employer shall observe the following procedure in engaging employees for employment under the Award. (a) A member of the union or a person holding a current certificate under s. 47 (3) of the Conciliation and Arbitration Act may be employed at any time. (b) Any other employee may be employed not less than twenty-one days after the employer has notified the union that an opportunity for employment exists and of the nature of the work involved in the employment. Provided that in an emergency an employer may engage an employee for not more than three days without complying with the requirements of this clause, but shall not thereafter continue or extend the employment and shall not renew it except after notification in accordance with this clause and subject to cl. 3 [sic] "Preference" 2. Preference. An employer shall give preference to members of the union as hereinafter prescribed in relation to the matters hereinafter specified— (a) In relation to the matter of engagement in any employment covered by the Award, the employer shall give preference to all members of the union who have indicated to the employer their desire for employment by him within fourteen days prior to the giving of the relevant notice under cl. 2 (b) [sic], or who so indicate, either directly or through the union, within fourteen days after the receipt of the notice by the union. Provided that an employer shall be excused from the obligation to give preference in accordance with this sub-clause in the case of any particular member of the union if at the time of making the engagement the employer has reasonable grounds to believe and does believe that the member is incapable of performing the duties of the employment, being work the nature of which was notified to the union pursuant to cl. 2 (b) [sic]. An employer shall not, within the meaning of this sub-clause, have reasonable grounds for believing that an employee is incapable of performing the duties of the employment, unless he has made reasonable enquiries in the circumstances including the giving of a reasonable opportunity to the employee to establish his capacity. It was not disputed that the reference in this to "cl. 3" should be "cl. 2" and that "cl. 2 (b)" should be "cl. 1 (b)". These are merely mistakes of careless composition and incompetent proof reading. They are capable of correction if an award should be made. It was said for the union that the obligation propounded that an employer give preference to members of the union when engaging employees could be likened to provisions for preference for exservicemen in the Returned Soldiers and Sailors Employment Act, 1919 N.S.W., s. 3, and the Re-establishment and Employment Act 1945 Cth, s. 27. There is a general similarity; and those enactments do throw some light on what when the present log was put forward was the common understanding of the concept of preference in engagement. It is, however, noteworthy that the verbiage of what is now claimed differs from the provisions of the two Acts. The New South Wales statute requires every employer to "give preference in employment to a returned soldier or sailor who is capable of effectively performing the duties of such employment as against any other person offering his service at the same time". The Commonwealth statute requires that "an employer shall, in the engagement of any person for employment, engage, in preference to any other person, a person entitled to preference, unless he has reasonable and substantial cause for not doing so". In each of those enactments preference is thus referred to as arising in the choice of one person rather than another; it arises on a choice between persons seeking employment; and in neither case is the obligation unqualified. The claim in the log is that the employer give preference to "all members of the union", who have indicated their desire for employment by him, after he has given the notice stipulated. If this is to have any sensible application, it must mean that any member of the union who has indicated his willingness to accept employment is to be preferred to any person not a member of the union. The words of s. 47 of the Act enable a direction that "preference shall be given". This, as I read it, means shall be given by the employer. It postulates a choice by him and prescribes the way in which it must be exercised. A statement that one thing is to be preferred to another does not necessarily import any discretion or choice. It may amount to a direction that without more one is to be taken and the other excluded, as, for example, in Boys v. Bradley [1] , where in a will the words "the male line in preference to the female line" confined a gift to the male line to the absolute exclusion of the female line. But we are not here concerned with a proposed prohibition of the employment of persons who are not unionists, but with a claim based on s. 47 that preference be given to unionists. The meaning of preference in the Act is not to be sought in dictionary definitions of "preference" or "prefer". The question is not one of lexicography, but of semantics in the proper sense of that word. It is the concept of preference in employment as understood in the context of Australian industrial law. 1. (1853) 10 Hare 389 [68 E.R. 978]. The proposed clause does not speak of a preference for members of the union "equally qualified" with non-members to do the given work, as some early forms of award did. Nor does the Act now authorize preference "other things being equal", as the forerunner of s. 47 did. When those words were used they could sometimes provide an easy escape; for what other things had to be equal was indefinite, and what equality meant and by whom it was to be judged was arguable. But the abandonment of the phrase does not imply that an award directing that preference in employment be given to members of a union means that whether or not a man is a member of a union is the only matter that an employer can consider when selecting employees. It is not a factor which must necessarily outweigh all else. The wording of the proviso to cl. 2 (a) appears involute and to have aberrations of tenses and in the use of the subjunctive mood. But if meanings of both the protasis and the apodosis sufficiently emerge we need not be concerned by inelegancies appearing on a syntactical analysis. And what is meant is, I think, manifest. I read the words, in the last sentence of the proviso, "an employer shall not have reasonable grounds for believing" as meaning shall not be considered, or held, to have had such grounds—not as a negative imperative to the employer. And the words "for believing that an employee is incapable" must, I take it, denote not an employee but a member of the union seeking to become an employee. That must needs be so to conform with the definition of "employee" in the award as it stands. Notwithstanding linguistic difficulties, I have come to the conclusion that the log of claims makes demands for preference for unionists when employees are being engaged that are precise enough to make their rejection by employers give rise to an industrial dispute. We must, of course, accept the established theory of a "paper dispute", contrived to attract the jurisdiction of the Commission. But I consider that an award in the terms of the log, or in substantially like terms, would not accord with s. 47 and would be invalid as beyond the statutory power to direct preference. I turn to that aspect. The existing awards governs employees "engaged principally in clerical word" including "stenographers, switchboard attendants, typists and operators of mechanical electrical or electronic machines or other machines used to perform or assist in performing clerical work". Why switchboard attendants are included among persons engaged in "clerical work" is not apparent. Presumably they may have to write down messages; and they can become members of the union. All the employers bound are large oil companies. But whether the Commission has jurisdiction to make an award such as is proposed must be considered as if employers in other industries were to be similarly bound, because the relevant common industrial feature here is not the business of an employer but the vocation, clerical work, of his employee. The claim for preference in engagement is expressly qualified by the proviso that "an employer shall be excused from the obligation to give preference" to a particular member of the union "if at the time of making the engagement the employer has reasonable grounds to believe and does believe that the member is incapable of performing the duties of the employment". This no doubt means that the employer must be satisfied on reasonable grounds of the fact. But what fact? It was assumed in the argument, and in my view rightly assumed, that incapacity to perform the duties of the employment connotes a lack of manual skill and intellectual ability for a given task, attending to a switchboard, working a typewriter, taking shorthand and so forth. The reference to giving a person an opportunity to establish his capacity refers, it was said, to the imposition of a test, not to employment on probation; for it has to be "at the time of making the engagement". There is in all this no room for degrees of capacity: a person if not incapable is capable: another person cannot be considered more capable; or, if so, that consideration must be disregarded, if he be not a member of the union. And, except as between one unionist and another, an employer would not be permitted under the clause to have regard to other qualities than capacity as measured by dexterity and mental aptitude. Yet, especially in clerical employment, other factors may be all important. Persons so employed must often be trustworthy persons who have access to confidential information and who can be relied upon not to gossip or divulge their master's business. The supposition that anyone who could do the work would be employable sets at nought any special qualifications that the employer may require and any matters that he may treat as disqualifications. Yet these may be decisive factors before a question of preference can arise. An employer may look to all kinds of qualities and attributes as necessary qualifications for employment. He may regard some things as disqualifying. He may, for example, stipulate for engagement that a prospective employee must be a male, or a female; a person of, or below, a given age; a resident of a particular locality; a person of a particular nationality; a person who had served in the navy, or in the army or air force, perhaps in a particular formation, campaign or theatre of operations in war; a person who had never been in gaol; and adherent of a particular faith; a non-smoker, or a total abstainer from alcohol. The last is the example given by Street J. in his illuminating judgment in Davis v. Western Suburbs Hospital [1] , a case that turned on the statutory requirement that preference be given to a returned soldier who is capable of "effectively performing" the duties of the employment. 1. (1941) 42 S.R. (N.S.W.) 26. There Jordan C.J., having said that whether or not there was a breach of that obligation was a matter to be determined by a magistrate, said [2] : At the hearing of the summons, it is for the prosecutor to prove, inter alia, what the duties of the particular employment are, and that the returned soldier or sailor is capable of effectively performing them. It is for the magistrate to determine these matters; but in so doing, in case of employment which is, for example, confidential, executive or technical, he will naturally give weight to the evidence of the employer, especially if he forms the opinion that he is a trustworthy witness. In other words, the matter is to be determined according to the evidence and the dictates of common sense. The claim in the log is a contrast with that. It would place the onus on the employer to prove that he had on reasonable grounds believed the applicant whom he rejected was incapable of doing the work that would be required of him. Capacity to do given work is related to the kind of work to be done, rather than to the kind of person who is required to do it. Yet the concept of giving preference presupposes the suitability of at least two persons whom the employer would be willing to employ, they meeting his lawful requirements. Giving preference then means that the scale is weighed down as against any one of them who is not a unionist in favour of any other who is. It is always, I consider, for the employer to determine what qualifications he requires of those who would enter his service, except that he must not discriminate against unionists. I agree entirely in the judgment that Street J. gave in Davis's Case [1] . I quote one passage. The Act is not intended to deprive the employer of the right to decide what his needs are, or to give to any tribunal the right to say that an employee of different qualifications to those required by the employer could fill the position adequately. It is for the employer to fix the duties of the position and to prescribe his own needs, and the capacity of competing applicants is to be judged in relation to the employer's actual requirements and not in accordance with what some one else might think would be sufficient for the position. For a tribunal to take upon itself the task of determining this last matter would be, in effect, to take over the management of the employer's business, and decide the question of liability not in accordance with the employer's actual needs but in accordance with what someone else might think he ought to need. I consider that the claim for preference in engagement as formulated in the log goes beyond the sense of "giving preference" in s. 47. 1. (1941) 42 S.R. (N.S.W.), at p. 30. 2. (1941) 42 S.R. (N.S.W.), at p. 31. I pass now to clauses in the log claiming preference for unionists, not in relation to engagement for employment but in relation to matters arising during employment. The first is the matter of the promotion of an employee to a superior grade or position carrying higher wages under the award. Here preference is claimed for "all members of the union who are employed on the incremental scale or in a grade lower than that in which an employee is to be graded". Again the employer is to be "excused from the obligation to give preference" to any member who is incapable of performing the duties of the position. And coupled with this is a claim that an employer proposing to advance or promote an employee in any of the ways stipulated must give the branch secretary of the union twenty-one days' notice of his intention so to do, unless all his employees within the scope of the award are members of the union. As between a unionist and a non-unionist capacity alone would determine which was to have promotion. Length of service, faithful service, greater efficiency and all other merits would have to be overlooked, as would the fact that a particular employee had been given experience and training to fit him to step into a particular vacancy when it occurred. Suitability for the employer's requirements in the position could have no weight. In other words, the non-unionist would be prejudiced although he alone might be suitable for promotion. That I think is not authorized by s. 47. The next matter is the claim for preference in "the matter of retention in employment". Coupled with this is a claim that an employer give seven days' notice to the branch secretary of the union of his intention to terminate an employee's services (otherwise than for misconduct justifying instant dismissal, incapacity or superannuation) unless all his employees within the scope of the award be members of the union. This proposal would drastically alter the ordinary rights and obligations of the parties under a contract of service: and it could operate so unfairly in some cases that I would not expect a Commissioner to assent to it without qualification. That, however, would be a matter for him if it be within his power under s. 47 to grant the claim. The decision of Owen J. in McMaster v. Mackay [1] , with which I agree, was that preference in engagement does not of itself give a preferential right to be continued in employment. But s. 47, read with the definition in the Act of "industrial matters" (in particular pars. (h), (j), and (k)), does, I think, enable the Commission to make an appropriate order for preference in relation to the matter of dismissal. However, for reasons that I have given in dealing with initial engagement, a direction that preference is to be given postulates to my mind a choice. Membership of a union could, I think, lawfully be stipulated as the ultimately decisive factor in that choice. But in determining whether an order as proposed should be made, the Commission is required by s. 47 to consider the manner and conditions that it will specify. It does not follow that a direction for preference in relation to retentions and dismissals need be expressed to override all considerations of length of service, experience, efficiency and so forth, or the application in some cases of a rule: last in, first out. These are matters that the Commission must consider along with "the maintenance of industrial peace", "the welfare of society" and "what is right and fair in relation to an industrial matter having regard to the interests of the persons immediately concerned"—those who are members of the union and those who are not and their employers—"and of society as a whole". To simply adopt the claim in the log as formulated would virtually preclude the consideration of such matters by the Commission and hand them over to the branch secretary of the union. Therefore, although I am far from persuaded that it would not be open to the Commission to make an order directing that in the matter of retention in employment as against dismissal preference should be given, I consider that making an award in the absolute terms claimed without further consideration would not be a compliance with the Act. 1. (1937) 54 W.N. (N.S.W.) 175. The last matter is a claim that, as between members of the union and other employees, the members of the union should have preference in relation to the times when they should be permitted by their employer to take their annual leave, or other leave to which they become entitled. We were not told of any precedent for such a form of preference. It seems a peculiar proposal. However, subject to what I shall say later, it may be that this is a "matter" in relation to which the Commission has jurisdiction under s. 47 to direct that preference be given. If so, then it is a matter for a Commissioner and not for this Court to consider whether such an order should be made. I would only say that it would surprise me if it were thought that an absolute order of that kind could, within the words of s. 47, make for the objects of an award. One might well ask what purposes and objects would be served; and how would industrial peace be aided. Anyone who has ever had to compile a leave roster for a number of men and women would, I should think, have serious misgivings. Favouritism and petty privileges are always fertile seeds for disharmony among men of equal rank in their vocations. And anyone concerned at any time with deciding the times when men and women should have leave would surely know that any rule of thumb must, if fairness to individuals is to prevail, give way at times to needs arising from domestic circumstances and compassion. These things, it may be said, do not bear upon the existence of jurisdiction, but are rather matters to be borne in mind in its exercise. That I appreciate, although if the conditions stipulated in s. 47 (2) as necessary in the opinion of the Commissioner for the exercise of the jurisdiction could not rationally be held to subsist, the existence of the jurisdiction might in some cases be examinable, subject always to s. 60. However, there is a deeper reason I think for saying that an award granting preference as asked in relation to promotion and leave times, and perhaps also in relation to retention in employment, would be invalid. I turn to it. The effect of the decisions in R. v. Wallis [1] and R. v. Findlay [2] is I take it, that to be within the purview of the Commission a claim must be with respect to an "industrial matter" as defined in the Act: and that for that to be so the matter must pertain to the relations of employers and employees: and that that does not include the relation of employees to a union. Nor, in my opinion, does it include putting existing employees into different classes unrelated to the nature of their work and giving members of one class privileges against the others. Preference for employment is clearly an "industrial matter" as defined in the Act. It pertains to the relations of employers and employees and comes directly within par. (j) of the definition. But once the relationship of employer and employee is created, putting employees into two classes, and giving privileges to one as against the other, seems to me to pertain to relations between employees and their relationship with a union rather than to their relations as employees with their employer. McTiernan J. expressed this succinctly when, in R. v. Findlay [3] , he said: "Membership of an industrial organization is not an employer-employee affair." 1. (1949) 78 C.L.R. 529. 2. (1950) 81 C.L.R. 537. 3. (1950) 81 C.L.R., at p. 552. For these reasons, while I would not grant a prohibition on the ground that there was no industrial dispute—for I think there was—I would prohibit the Commissioner from making an order in the terms proposed in the log of claims or any order to the like effect. It becomes unnecessary for me to deal with the proposition that the log of claims makes demands that the Commissioner has no power to grant, being in substance demands for compulsory unionism. But, having regard to the arguments that we heard, some consideration of this seems to be called for. The decisions in R. v. Wallis [1] and R. v. Findlay [2] were, of course, relied upon by the prosecutors for the major premise of their proposition. Those cases establish that the Act does not authorize giving a monopoly of employment in an industry to members of a particular union so as to exclude other persons from employment. But what if this is the indirect result of giving preference? Preference is not prohibition. And it is true that an award in the terms proposed seems designed to ensure that all non-unionists must be eliminated from consideration if there be any unionist ready, willing and able. Indeed it was conceded, and necessarily so, that this would be the result. As Isaacs and Rich JJ. said in Waterside Workers' Federation of Australia v. Gilchrist, Watt and Sanderson Ltd. [1] : "It is obvious that where "preference" is asked for between two classes it means going the whole distance of placing class A before class B." It was said that the proposed award metaphorically placed members of the union assembled by the union in the front rank, others in the rear rank: that if any man in the front rank was capable of doing the work required he must be chosen in preference to any in the rear rank, however superior his attainments might be: indeed inspection of the rear rank would not be permissible unless all in the front rank were on good grounds believed to be incapable. This could no doubt mean that in effect unionists would have a monopoly of employment. In 1924 Sargant J., as he then was, recognized that if a union could insist that employers should employ none but its members, this would necessarily impose on other workmen in the trade the necessity of joining the union as a condition of obtaining employment: Reynolds v. Shipping Federation Ltd. [2] . The passage was quoted by Lord Porter in Crofter Hand Woven Harris Tweed Co. Ltd. v. Veitch [3] . Yet, provided that it be not actuated by malevolence or vindictiveness towards those who are not its members, a trade union can pursue any courses lawfully available to obtain recruits. A direction that preference for employment be given to unionists may make men join the union; and indirectly it may prevent those who do not do so getting employment. But that cannot make invalid an award for preference validly authorized by s. 47. It is no objection to such an award that it was sought for the very purpose of making men join the union. Counsel for the union acknowledged that to be a result that this log is designed to achieve. It is a legimate aim. Numerically powerful unions can exert powerful pressure in collective bargaining. The Act is based upon the existence of industrial organizations of employers and employees. Unions may by their activities gain benefits for all the employees in an industry and protect their interests. It is natural therefore that union officials and many unionists should think that all those who may benefit from union activities and who are protected by union watchfulness should help to provide the sinews of war and support the guardians of the ground won. But, because the Commission may direct that some lawful form of preference be given, it does not follow that when it is demanded, it should be given. That is only so if, after due consideration, the Commission should form the opinion that to direct such preference would be necessary to serve one or more of the ends stated in s. 47 (2). Many considerations may be involved. The legitimate desire of the governing bodies of unions to increase their memberships and enhance their authority may have to be weighed against antipathy which in some industries, and clerical employment may be one, some employees, who may be numerous but not as a body articulate, have against being directly or indirectly conscripted into union membership and regimented. And many people are ever watchful of, and naturally troubled by, any interferences with traditional freedoms of the individual, his civil liberties, whether he be an employee or employer—including his liberty to work at his trade free of unlawful restraints, to mind his own business and manage it in his own way according to law. These rights have long been cherished values of our law and elements in the welfare of society which, along with industrial peace, is one of the statutory grounds for ordering that a preference be given to the members of an organization. It does not follow that a form of preference which indirectly gave a monopoly will always promote industrial peace. "Closed shops" can be homes for turmoil, as was shewn in England in the facts that led up to Bonsor v. Musicians' Union [1] and Rookes v. Barnard [2] . 1. (1949) 78 C.L.R. 529. 2. (1950) 81 C.L.R. 537. 3. (1924) 34 C.L.R. 482, at p. 535. 4. [1924] 1 Ch. 28, at p. 39. 5. [1942] A.C. 435, at p. 494. 6. [1956] A.C. 104. 7. [1964] A.C. 1129. I do not myself think that the claims for preference in the log are necessarily beyond the Commission's power because if granted they might in effect compel all men and women employed in clerical tasks to join the union. I consider that, as I have said, the claims are for other reasons beyond the jurisdiction of the Commission. I have said so much as to s. 47 (2) only to emphasize that, if I be wrong and that it is within the power of the Commission to grant the forms of preference sought, then there is no presumption either that it should or should not do so. That would be a grave question for the Commission. It would not be a matter for this Court. It is not necessary that I deal with the fourth ground of the order nisi, namely that the proposed cl. 1 (b) "makes a demand which relates to the prevention of the establishment of the relation of employer and employee". This seems to echo words that Latham C.J. used in Metal Trades Employers Association v. Amalgamated Engineering Union [3] . Certainly the clause, if adopted by the Commission, would prevent the making of a contract for the services of a person not a member of the union for twenty-one days, except in an emergency and then only temporarily. But I think that the provisions of cl. 1 are invalid by reason of their relationship to cl. 2 and I need not further consider whether cl. 1 (b) would be objectionable if it could be separated from the other claims in the log and stood alone. 1. (1935) 54 C.L.R. 387, at p. 405. For the reasons I have given I would make absolute the order nisi for prohibition. Owen J. For the reasons given by my brother Menzies I am of opinion that the order nisi should be discharged.