R v Spicer; Ex parte Seamen's Union of Australia [1957] HCA 16

High Court of Australia Dixon C.J. McTiernan, Webb, Fullagar and Taylor JJ. R v Spicer; Ex parte Seamen's Union of Australia [1957] HCA 16

ORDER Order nisi discharged with costs to be paid by the prosecutor.

Cur. adv. vult.

The following written judgments were delivered:—

Mar. 29 Dixon C.J., Webb, Fullagar and Taylor JJ.

On 25th January 1957 rules nisi were granted by the Commonwealth Industrial Court calling upon the prosecutor, an organisation of employees registered under the Conciliation and Arbitration Act 1904-1956, to show cause, firstly, why an order should not be made, pursuant to s. 109 (1) (a) of the Act, that it comply with sub-cll. (a) (i), (b) and (c) of cl. 83 of the Seamen's Award 1955 and, secondly, why an order should not be made under the authority of the same section enjoining the prosecutor from continuing breaches of the provisions of those sub-clauses.

The material provisions for our consideration are sub-cll. 83 (a) (i) and (b) of the award which was made pursuant to the provisions of Pt. XA of the Navigation Act 1912-1953. Those sub-clauses are in the following terms: "83 (a) (i) The Union shall not in any way, whether directly or indirectly be a party to or concerned in any strike, ban, limitation or restriction upon the performance of work upon or in accordance with the terms and conditions prescribed by this award. (b) The Union shall not in any way whether directly or indirectly be a party to or concerned in any total or partial refusal or failure of any members of the Union acting in concert to accept employment or to offer for work or to work upon or in accordance with the terms and conditions prescribed by this award."

It appears from the material before us that it is alleged that the prosecutor was directly concerned in an arrangement for withholding a crew for the M.V. Kumalla, a new ship which had been constructed in the United Kingdom for the Union Steamship Company of New Zealand Ltd. and brought to Australia by a crew engaged in the United Kingdom. For some time previously to the arrival of the vessel the prosecutor had maintained that where a vessel was purchased overseas by an Australian shipowner for use on the Australian coast an Australian crew should be sent overseas to take delivery and bring it to this country and, in February 1956, the prosecutor obtained a decision from a judge of the Court of Conciliation and Arbitration, exercising authority under Pt. XA of the Navigation Act, that this practice should be observed. Thereafter, in August 1956, the Commonwealth Steamship Owners' Association obtained an order from this Court for the issue of a writ of prohibition on the ground that the judge in question had no authority to make such an order since the dispute before him was not a dispute as to an "industrial matter" within the meaning of that Act. In effect the matter in dispute was not one "in relation to the salaries, wages, rates of pay or other terms and conditions of service or employment of masters, pilots or seamen" (Navigation Act, s. 405A). The decision of this Court upon the point is reported sub nom. Reg. v. Foster; Ex parte Commonwealth Steamship Owners' Association [1] .