R v Commonwealth Court of Conciliation & Arbitration; Federated Gas Employees' Industrial Union, Ex p [1951] HCA 2

High Court of Australia Latham C.J. Dixon, McTiernan, Webb and Kitto JJ. R v Commonwealth Court of Conciliation & Arbitration; Federated Gas Employees' Industrial Union, Ex p [1951] HCA 2

ORDER Order nisi discharged in relation to order made under the Commonwealth Conciliation and Arbitration Act 1904-1949, s. 29 (b). Order absolute in relation to order made under s. 29 (c). No order as to costs.

Cur. adv. vult.

The following written judgments were delivered:—

March 5 Latham C.J.

It is now necessary to consider the other case (that in which the Federated Gas Employees' Industrial Union is the prosecutor), which was heard together with the case of the Amalgamated Engineering Union [1] . In the case of the gas employees the position is that the award contained the same clauses as to overtime as in the Engineering Union case. The Gas Employees' Federation, however, consented to the award and no question arises as to whether or not the matters with which the overtime clauses deal were within the ambit of the dispute between the parties or were otherwise provisions which the court had power to include in an award. It was alleged by the employers that there was similar concerted action by members of the union to defeat the overtime provisions. Two gas companies, parties to the award, applied to the Arbitration Court and obtained orders nisi to show cause why an order under s. 29 (b) of the Act for compliance by the union with the award and also an order under s. 29 (c) enjoining the union from committing or continuing the contravention of the Act should not be made. The union obtained an order nisi for a writ of prohibition in this Court to prohibit any further proceedings upon the orders nisi in the Arbitration Court upon the ground that the Arbitration Court has no jurisdiction to make the orders sought in the rules to show cause. No order has been made by the Arbitration Court and the argument for the union has therefore necessarily proceeded upon the basis that the Arbitration Court has no power to make any order for compliance with a negative provision of an award or enjoining a contravention of an award as being a contravention of the Act. For reasons which I have stated I am of opinion that these objections should not prevail. The order nisi in this case should be discharged.