Re Australian Insurance Employees Union; Ex parte Academy Insurance Pty Ltd

High Court of Australia Dawson J Re Australian Insurance Employees Union; Ex parte Academy Insurance Pty Ltd

Dawson J.

In this matter an order nisi for a writ of mandamus is sought, directed to the President of the Conciliation and Arbitration Commission to compel him to determine according to law an application that certain proceedings for the variation of an award be dealt with by a Full Bench of the Commission on the ground that it is in the public interest that they be so dealt with.

The application was made under s 34(3)(b) of the Conciliation and Arbitration Act 1904 Cth (the Act), in the first instance to the Commissioner hearing the proceedings who, as he was required to do, referred the application to the President. That provision was applicable by virtue of s 59(3) of the Act.

Section 34(6)(b) of the Act provides:

If the President, having regard to the reasons for the application is of the opinion that—

(b) In the case of an application under paragraph (3)(b) or under sub-section (4) — the industrial dispute or the part of the industrial dispute, as the case may be, is of such importance that, in the public interest, it should be dealt with as provided by this section,

he shall grant the application and direct accordingly. In refusing the application the President said: In my opinion, no special or extraordinary circumstances exist in this case and the application should be determined having regard to the particular circumstances of the case before the Commission, subject only to the limitations imposed by the national wage decision.

It was submitted on behalf of the applicants that the test applied by the President did not conform with that required by s 34(6)(b) of the Act, being narrower than is suggested by the words "is of such importance that, in the public interest, it [ie the application] should be dealt with as provided by this section".