Moore, Re; Federated Ironworkers' Association of Australia, Ex p

High Court of Australia McHugh J Moore, Re; Federated Ironworkers' Association of Australia, Ex p

McHugh J.

The Federated Ironworkers' Association of Australia and a number of other persons (the prosecutors) have applied for an order nisi for writs of prohibition directed against the first respondent, who is a Deputy President of the Industrial Relations Commission, to restrain him from further proceeding to hear and/or determine applications by the Building Workers' Industrial Union of Australia (BWIU) and The Federated Engine Drivers' And Fireman's Association of Australasia (FEDFA) for consent to changes to their rules. The prosecutors contend that the applications by the BWIU for alteration to its rules were finalised on 18 March 1987 and that the applications by the FEDFA for the alteration to its rules were finalised on 23 April 1990. Accordingly, they contend that the Commission no longer has jurisdiction in respect of the applications.

The BWIU Applications

On 15 May 1986, the BWIU made applications under s 139 of the Conciliation and Arbitration Act 1904 Cth (the C and A Act) for the consent of the Industrial Registrar to alterations to its industry and eligibility rules. These applications followed upon the deregistration of the Australian Building Construction Employees' and Builders Labourers' Federation (the BLF) on 14 April 1986 as the result of the Builders Labourers' Federation (Cancellation of Registration) Act 1986 Cth. The purpose of the proposed rule alterations was to enable the BWIU to enrol and represent classes of employees throughout Australia who were formerly represented by the BLF.

When the applications were before the Deputy Industrial Registrar (the Registrar) on 8 September 1986, counsel for the BWIU asked the Registrar to deal first with the applications in relation to New South Wales, the Australian Capital Territory and Victoria. He said that, so far as Queensland, Tasmania, South Australia, the Northern Territory and Western Australia were concerned, the applications should be stood over for consideration at a later date. Counsel for the BWIU drew the Registrar's attention to the decision of Alley J in Re Australian Shipping Officers Association (1985) 297 CAR 112 in which his Honour decided that a Registrar could deal with part of an application by granting consent to part of an alteration and deal, at a later stage, with the remainder of the application. No party present on that occasion opposed the application of counsel for the BWIU. However, the Australian Workers' Union and the Federated Ironworkers' Association indicated that they may wish to argue that such a course could not be followed.